author: Annabelle Clinton Imber, Justice. Glaze, J.,

text:
    STATE of Arkansas v. Glen HERRED
    CR 97-664
    964 S.W.2d 391
    Supreme Court of Arkansas
    Opinion delivered March 12, 1998

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellant.

      Louis A. Etoch, for appellee.
   Annabelle Clinton Imber, Justice.

Glen Herred pleaded guilty to a charge of attempted possession of a controlled substance with intent to deliver, a Class A felony. He subsequently filed a petition for rehef under Ark. R. Crim. P. 26.1 and 37, which the trial court granted. We reverse and hold that the trial court clearly erred in granting relief.

Sometime before midnight on June 19, 1996, the police executed a nighttime search warrant at the residence located at 625 Quarries Street in Marvell. Among other things the officers seized a gun, as well as twenty-four grams of cocaine that were discovered in a pair of shorts belonging to Sadere Baker, found underneath Baker’s “bed tick.” At the time the police entered, Baker was in bed with Herred, her boyfriend. Baker was the mother of Herred’s three children. Both Herred and Baker were arrested, along with other people inside the residence.

On July 30, 1996, the police charged Herred with one count of possession of a controlled substance with intent to deliver, a Class Y felony, as well as simultaneous possession of drugs and firearms, a Class Y felony. Baker was charged as well. Herred appeared for trial on December 12, 1996. Represented by retained counsel, Herred entered a negotiated plea of guilty. The State nolle prossed the simultaneous-possession count, and Herred pleaded guilty to a reduced charge of attempted possession of a controlled substance with intent to deliver, a Class A felony. Following a colloquy with Herred, the trial court accepted the plea as well as the State’s recommendation of fifteen years’ imprisonment, with credit for time served. The trial court further explained to Herred that he was going to allow Herred to remain on bond until December 26, 1996. On December 13, 1996, Sadere Baker pleaded guilty to attempted possession of a controlled substance with intent to deliver, a Class A felony, and received a six-year suspended sentence. On December 18, 1996, the judgment and commitment order in Herred’s case was entered.

On December 23, 1996, Herred filed a pro se “Verified Petition Under Rule 26.1 and 37, Ark. R. Crim. P. And Ark. Code Ann. § 16-90-111 To Set Aside Guilty Plea, To Vacate, Or To Correct Defendant’s Sentence And For Other Proper Relief.” Among other things, Herred claimed that he was denied effective assistance of counsel, and that his plea was coerced as a result of threats of prosecution levied against Baker, the mother of his children. On December 26, Herred reported to begin serving his sentence, and on January 28, 1997, the trial court held an evidentiary hearing on the petition. Attorney Louis Etoch, who had previously represented Sadere Baker in connection with the original charges, represented Herred at the postconviction hearing.

Vandall Bland was the attorney who represented Herred at the time he pleaded guilty, and had been retained about a month before the trial date. On that date, Bland had a number of other cases set for trial, as he was the Phillips County Public Defender. He explained that he had filed no written motions in the case, and had not filed a motion to suppress the drugs seized from the residence. While he had filed no discovery motions in the case, the prosecutor had provided him with the file. Bland was prepared to go to trial because he had all of the discovery and all of the witnesses were available to testify. He was not aware that Herred had been drinking that day. In fact, he did not notice any of the telltale signs of intoxication such as slurred speech, blood-shot eyes or unsteadiness. Nor did he smell any alcohol on Herred, although he conceded that he could not “smell that well.” Bland knew that Herred could read and write. He also thought that he had read the plea execution form to Herred, and had him initial it. Baker and Herred were crying on the day of the plea.

Bland was aware that the prosecutor had offered Sadere Baker (who had also been charged) probation if she testified against Her-red. It was Bland’s understanding that the prosecutor would offer Baker a suspended sentence in exchange for Herred’s plea. This occurred in the judge’s chambers, where Bland, Herred, Baker, and Attorney Louis Etoch (then representing Baker) were all present. Etoch had advised Baker not to testify against Herred.

Victor Owens, a longtime friend of Herred’s, testified that the night before the plea he and Herred drank substantial quantities of alcohol, and Herred appeared intoxicated. They stayed out until about 12:30 that night. Herred was ill and taking “Tylenol and a lot of more drugs.” Herred expressed his innocence and concern for his children. Owens stated that Herred had lived at the Baker residence with Sadere less than a year, but later clarified that “he wasn’t staying there that I know of.”

Sadere Baker testified that Herred was not living with her at her residence. Baker stated that the cocaine seized was hers, and that she was keeping it for a friend. On cross-examination, she stated that her intent was to sell it to make money. The cocaine was “in [her] shorts under [her] bed tick.” She did not inform Herred of the cocaine, and he did not see it to her knowledge. The night before the plea, Herred came in around 12:30 or 1:00 in the morning and appeared intoxicated. He was also taking medication for sinus problems, and he drank some more the morning he came to court. On the day of Herred’s trial, she understood that the plea negotiations were that she would get probation in exchange for Herred’s plea. They were both crying on the day of the plea because the drugs did not belong to Herred and she did not want him to go to jail. He told her that he would rather go to jail. As Bland was discussing the case with Herred, Baker told Herred that she did not want to go to jail. She stated that the gun in her house belonged to Kevin Sanders, apparently Herred’s nephew, who was willing to testify to that effect.

Glen Herred testified that he was not incarcerated immediately after his plea, but that he began serving his term on December 26. He stated that he did not five at the Baker residence. He was not aware that his case was going to trial on December 12, 1996, until the day before. He did not sleep well the night before the trial date, and he drank a large quantity of alcohol as well as medication for flu symptoms. On the way to Bland’s office the morning of trial he drank a beer. He did not know that cocaine was in the house, and did not possess it. Neither did he know that the gun was in the house. Bland told him that Baker would be sentenced “fifteen to life” if he “didn’t take them charges.” He also told Bland about Kevin Sanders admitting to possessing the gun, to which Bland responded that he should do the “manly thing and take the charge, because if you let that young kid take the charge, they will try to hang him. So he told me to do the right thing, just take the charges.” Etoch explained to Herred that Baker would get probation only if she testified against him, and later that she would only get probation if he pleaded guilty. Her-red expressed his innocence to Bland, but he pleaded guilty because he wanted the mother of his children to take care of the children. He did not feel that Bland was prepared to try the case. Bland told him that he would get life if he went to trial. Herred testified that he fled in answering the questions asked of him during the plea colloquy. He stated that he paid some bills at the Baker residence, and considered it “home” along with his mother’s house.

Lovell Ashley Higgins was then the circuit judge who took Herred’s plea. He noticed nothing unusual about Herred’s appearance or demeanor on December 12 while he took the plea. Judge Higgins had been in Herred’s presence for at least one hour before the plea was taken. Part of that time was in the close confines of the judge’s chambers where he saw no signs of intoxication. Nor did he smell the odor of intoxicants. Judge Higgins did have concerns about Etoch trying to manipulate Herred.

Following this evidentiary hearing, the trial court entered an order on April 10, 1997, vacating Herred’s plea and granting him a new trial. The trial court found that Herred’s petition was untimely pursuant to Ark. R. Crim. P. 26.1, and denied Herred’s requested relief to the extent that it was a Rule 26.1 motion to withdraw guilty plea. Considering Herred’s petition as a Rule 37 motion for postconviction relief, the trial court found that Herred was denied effective assistance of counsel and that his plea was coerced. The trial court’s order contains the following findings:

•— Defense counsel had represented Herred for only a month, counsel’s time was inadequate for preparation;
— The only motions filed by defense counsel were oral motions made the morning of trial;
— Defense counsel also served as the Phillips County Public Defender during which he had a large number of cases set for trial;
— Defense counsel testified that the prosecutor had voluntarily given him discovery;
— Defense counsel made no motion to suppress the drugs and gun seized pursuant to the nighttime search warrant;
— It was unclear whether the search warrant was properly executed so as to authorize a nighttime search;
— Defense counsel testified “the whole case created a problem”;
— Defense counsel issued no subpoenas and did not respond to discovery motions;
— Defense counsel did not move for a continuance;
— Defense counsel testified that he knew that Sadere Baker, Herred’s girlfriend and the mother of his children, would receive a five-year suspended sentence if Herred pleaded guilty;
— Defense counsel testified that there was “pressure” on Herred;
— Defense counsel testified that “I think what persuaded him to take the plea ... he was looking out for Sadera [sic]”;
— Herred and Sadere Baker were outside the courtroom crying immediately before entering the plea;
— The State did not “deny or refute” Herred’s contention that he must plead guilty before the State would offer Baker a suspended sentence;
— Defense counsel testified that the prosecutor reminded him of the “Sam Lanford” case (Herred’s defense counsel had also represented Lanford), where the defendant refused a plea bargain, went to trial and received a 120-year sentence;
— Defense counsel testified that the prosecutor “pushed his chest out”;
— A longtime friend of Herred’s testified that the night before the plea was entered Herred expressed concern for his children, “needed someone to talk to,” and consumed substantial amounts of alcoholic beverages;
— “Defendant Herred was granted a hearing and given an opportunity to prove that the entry of the plea was the result of fear or threats that his wife would be tried or brought to trial”;
— The trial court found that the State insisted on Herred’s guilty plea before offering a suspended sentence to Sadere Baker the next day;
— Sadere Baker was the mother of Herred’s children, ages one, two, and three;
— Herred entered the plea as a result of “threats of prosecution of the mother of his children”;
— Defense counsel testified that “I might have told him that the manly thing to do was take the charge.”

Following these findings, the trial court’s order concludes as follows:

A two part test for reviewing claims of ineffective assistance of counsel was adopted by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984): (1) The Defendant must show that counsel’s representations fell below an objectionable [sic] standard of reasonable [sic] and (2) The Defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Based upon the totality of the circumstances and the record herein, the Court finds that the counsel’s assistance was ineffective.
The Court hereby grants Defendant’s petition to set aside the guilty plea and orders a new trial.

The State brings the present appeal.

I.

The State first argues that the trial court lacked jurisdiction to grant Herred Rule 37 relief because he was not “in custody” when he filed his petition. Rule 37.1, defining the scope of the rule, provides that relief is available to “[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 . . . .” In support of this proposition the State primarily relies on Coplen v. State, 298 Ark. 272, 766 S.W.2d 612 (1989) and Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988). In Copien the appellant was convicted of two counts of battery and later sought postconviction relief. At the time petitioner filed his petition with the trial court, “he was not in custody.” The Coplen court affirmed the trial court’s denial of postconviction relief because the petition failed to state any grounds for either habeas corpus relief or relief under Rule 37. In conclusion the court notes that “[petitioner] was not in custody when his petition was filed, a prerequisite for Relief.” Id. (citing Ark. R. Crim. P. 37.1; Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988)).

In Malone, supra, the appellants pleaded guilty to charges of criminal mischief and theft by receiving and were sentenced to two years’ imprisonment. They subsequently argued that the trial court erred in denying their motions to withdraw their pleas, in rejecting their contention that they received ineffective assistance of counsel, and in denying their alternative request for Rule 37 relief. The Malone court affirmed the denial of relief under Rule 26, noting that their motion was untimely in that it was made more than one month after their conviction orders were entered. The court then noted that “the ‘Scope of the Remedy’ for proceedings under Rule 37 is confined to a prisoner, in custody under sentence of a circuit court, [citation omitted]. Here, the appellants were out of custody on their original bonds when they filed their motion for relief under Rule 37.” Id. Continuing to the merits, the Malone court concluded that the appellants’ allegations failed to justify postconviction relief.

We must reject the State’s argument that the trial court lacked jurisdiction to grant Herred Rule 37 relief. First, Herred in his petition purported to seek relief under Rule 26.1 as well as Rule 37. Rule 26.1(b) provides as follows:

(b) A motion to withdraw a plea of guilty or nolo contendere to correct a manifest injustice is timely if, upon consideration of the nature of the allegations of the motion, the court determines that it is made with due diligence. Such motion is not barred because it is made after the entry of judgment upon the plea. If the defendant is allowed to withdraw his plea after judgment has been entered, the court shall set aside the judgment and the plea.

We have allowed a petitioner to proceed under this rule when his motion to withdraw a guilty plea has been filed prior to the time sentence has been entered and placed in execution. Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997). A judgment has been placed in execution “when the court issues a commitment order unless the trial court grants appellate bond or specifically delays execution of sentence upon other valid grounds.” Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987).

While the trial court entered the judgment and commitment order on December 18, before Herred’s petition was filed, the trial court specifically delayed the execution of sentence until December 26, allowing Herred to remain free on bond. Thus, Herred’s Rule 26.1 motion to withdraw was timely filed, unlike the appellants in Malone. Just as in Johninson, supra, “Rule 26.1(a) is obviously not applicable because the motion was not made prior to the pronouncement of sentence, we are relegated to subsection (b) and Rule 37.” Because Herred was in custody when the trial court ultimately disposed of his motion, and because his motion was otherwise timely under Rules 26.1(b) and 37.2, we conclude that the trial court had jurisdiction to consider the merits of Herred’s Rule 37 motion. Cf. Johninson, supra.

II.

When a defendant pleads guilty, the only claims cognizable in Rule 37 proceedings are those which allege that the plea was not made voluntarily and intelligently or was entered without effective assistance of counsel. Bryant v. State, 323 Ark. 130, 913 S.W.2d 257 (1996). We will not reverse the trial court’s findings granting or denying postconviction relief absent clear error. See Rowe v. State, 318 Ark. 25, 883 S.W.2d 804 (1994). To be entided to withdraw a guilty plea due to ineffective assistance of counsel, the petitioner must show as follows:

In Hill v. Lockhart, 474 U.S. 52 (1985), [it was held that] the two-part standard adopted in Strickland v. Washington, 466 U.S. 668 (1984), for evaluating claims of ineffective assistance of counsel — requiring that the defendant show that counsel’s representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different ■— applies to guilty plea challenges based on ineffective assistance of counsel. In order to satisfy the second requirement, the defendant must show that there is a reasonable probability that, but for counsel’s error, he would not have pleaded guilty and would have insisted on going to trial. It is the defendant’s burden to prove ineffective assistance of counsel, and it is a heavy burden because counsel is presumed effective. Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986).

Johninson, supra (quoting Duncan v. State, 304 Ark. 311, 802 S.W.2d 917 (1991) (emphasis supplied in Johninson)). A defendant who has pleaded guilty necessarily has difficulty in establishing prejudice given that his or her conviction is premised on an admission of guilt of the crime charged. See Thompson v. State, 307 Ark. 492, 821 S.W.2d 37 (1991).

To the extent that the trial court found that Her-red would not have pleaded guilty but for ineffective assistance or that his plea was coerced due to the State’s threats of prosecution against Baker, it was clearly erroneous. The State cites us to a number of federal circuits which hold that when a prosecutor threatens or offers leniency to a third party during plea negotiations with a defendant, the prosecutor is held to a “high standard of good faith” in such circumstances that is satisfied by probable cause to prosecute the third party. See Miles v. Dorsey, 61 F.3d 1459 (10th Cir. 1995)(“The government acts in good faith when it offers leniency for an indicted third party or threatens to prosecute an unindicted third party in exchange for a defendant’s plea when the government has probable cause to prosecute the third party .... Consequently, so long as the government has prosecuted or threatened to prosecute a defendant’s relative in good faith, the defendant’s plea, entered to obtain leniency for the relative, is not involuntary.”); United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1991)(“Where, as here, the government had probable cause to arrest and prosecute both defendants in a related crime, and there is no suggestion that the government conducted itself in bad faith in an effort to generate additional leverage over a defendant, we think a wired plea is constitutional.”); Martin v. Kemp, 760 F.2d 1244 (11th. Cir. 1985) (threats against third party impose “high burden of good faith” on prosecutor that is met by probable cause to believe that the third party had committed a crime at the time of threat — case remanded to determine what the police knew at the time of the threat); see also Stanley v. State, 280 Ark. 245, 657 S.W.2d 285 (1983) (affirming denial of postconviction relief based on involuntary plea despite threats of a quicker trial and a substantial sentence for the appellant’s wife, a co-defendant). Under the facts of the present case, there is no doubt that the State had probable cause to prosecute Baker when it informed Herred that it would offer Baker leniency in exchange for Herred’s guilty plea. And, there is no doubt that the State had probable cause to search the residence Herred considered his “home.” Thus, where the State had probable cause to arrest and prosecute Herred and Baker, Herred’s guilty plea could not have been coerced as a result of promises of leniency or threats of prosecution made against Baker.

We also agree with the State that the trial court clearly erred in granting postconviction relief because it failed to find that any of counsel’s purported deficiencies prejudiced Herred. The trial court’s order simply recites a number of factual findings and ends with a conclusory remark that “counsel’s assistance was ineffective” “[b]ased upon the totality of the circumstances.” The trial court never specifically found that but for any of counsel’s deficiencies, Herred would not have pleaded guilty and proceeded to trial. The order not only fails to set forth what, if any, additional information or defenses would have been discovered but for one or any combination of counsel’s deficiencies. It also fails to find that, with the benefit of this additional information, there existed a reasonable probability Herred would have insisted on going to trial.

Indeed, the record of this case suggests otherwise. Herred initialled and signed a plea statement where he fully acknowledged that he knew what he was doing. Among other things, he initialed statements such as “Have you discussed your case fully with your attorney and are you satisfied with his services?” and “Are you entering a plea of guilty on your own free will and accord without anyone causing you to do so on account of any promises or threats or any force?” Judge Higgins specifically asked Herred if his attorney had gone over the document with him and if he understood the contents of the document — Herred responded afiirmatively. In fact, Judge Higgins extensively queried Herred as to whether he understood his rights and the consequences of his actions, to which Herred repeatedly answered yes. Herred never expressed any dissatisfaction with his attorney at this time, and never suggested any coercion or threat, despite every opportunity to do so. Quite the contrary, Herred gained a considerable benefit from the plea. He was able to plead guilty to a substantially reduced charge, a class A felony, rather than two Class Y felonies.

Moreover, none of the purported deficiencies prejudiced Herred. The prosecutor had voluntarily given Herred all of the discovery and all witnesses were available to testify at trial. While the trial court appeared to criticize Herred’s failure to file a motion to suppress because of facial deficiencies in the nighttime search warrant, the warrant itself demonstrated the factual basis required to justify a nighttime search. See Ark. R. Crim. P. 13.2(c); Neal v. State, 320 Ark. 489, 898 S.W.2d 440 (1995). The warrant form used in the present case had three boxes allowing the judicial official to indicate a finding of reasonable cause to believe that circumstances justifying a nighttime search existed by checking three boxes. Two of these boxes were marked, the one providing “the objects to be seized are in danger of imminent removal,” and the other providing “the warrant can only be safely or successfully executed at nighttime or under circumstances, the occurrence of which is difficult to predict with accuracy.” Underneath this, there are instructions to “(State the facts relied on in determining the reasonable cause to believe one or more of the circumstances listed above existed.)” In this space, the following is typed:

(1) . THE SUBSTANCES TO BE SEIZED ARE IN DANGER OF IMMINENT REMOVAL, AN [sic] THE SUSPECTS ARE SELLING THE CONTROLLED SUBSTANCES AT THIS TIME.
(2) . THE MARRED BUY MONEY IS IN DANGER OF IMMINENT REMOVAL.
(3) . IT IS REPORTED THAT THERE ARE WEAPONS IN THE HOUSE, AND THIS INVESTIGATOR FEELS THAT IT WOULD CONTRIBUTE TO OFFICER SAFETY.

These facts were corroborated by the warrant’s supporting affidavit, which showed that the controlled buy had taken place hours before and that marked buy money had been used in the transaction. Thus, to the extent that the trial court ruled that counsel was unconstitutionally deficient in failing to object to the warrant’s facial sufficiency because “ [i]t [was] difficult for the Court to make a determination as to whether or not a night time search was authorized,” it was clearly erroneous.

Based on the foregoing, the trial court clearly erred in granting Herred Rule 37 relief. The judgment of the trial court is reversed.

Reversed.

Glaze, J.,

concurring. I concur and would dismiss based upon the trial court’s lack of jurisdiction.

       We note that neither the reported facts in Coplen nor Malone clearly indicate whether the petitioners where actually in custody when their motions were disposed of.

       The trial court’s order provided “After examining the search warrant, it is unclear as to whether the appropriate boxes were checked. The second and third boxes appear to have a ‘dot’ in them. The box does not contain an X nor a Checkmark. It is difficult for the Court to make a determination as to whether or not a night time search was authorized.”


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    Marchele (Richardson) MOORE v. Curtis RICHARDSON
    97-636
    964 S.W.2d 377
    Supreme Court of Arkansas
    Opinion delivered March 12, 1998

      Amy Blackwood, for appellant.

      Dale Arnold, for appellee.
   Ray Thornton, Justice.

Appellant Marchele (Richardson) Moore brings this appeal from the ruling of the Sebastian County Chancery Court finding her in contempt for violation of its child-visitation order. For reversal, Ms. Moore argues that the chancery court’s order finding her in contempt was void for want of jurisdiction both under the Parental Kidnapping Prevention Act of 1980 (PKPA) and the Uniform Child Custody Jurisdiction Act (UCCJA), and because appellee Curtis Richardson voluntarily submitted himself to a Texas court’s jurisdiction. We hold that the Arkansas court properly exercised continuing jurisdiction and affirm.

The Sebastian County Chancery Court entered a decree of divorce on February 2, 1993, granting Ms. Moore and Mr. Richardson an absolute divorce. The chancery court also awarded Ms. Moore custody of the parties’ minor daughter, required Mr. Richardson to pay child support, and awarded him visitation rights.

Ms. Moore filed a petition for modification of this order on October 25, 1995, requesting that the court terminate visitation because Mr. Richardson was being investigated for allegedly abusing the child, and she also requested the court’s permission to move to Seymour, Texas, with the child. Debra Brown, a licensed psychological examiner, testified that these allegations had been investigated by the Arkansas Department of Human Services (DHS) and local law enforcement, who decided that the allegations did not warrant further action.

By order dated March 26, 1996, the chancery court granted Ms. Moore permission to move after May 15, but denied her request to terminate visitation with the child’s father. The court modified the visitation to require that all future visits be supervised and limited visitation to one weekend a month once Ms. Moore and the child moved to Texas. The court also held Mr. Richardson in contempt for nonpayment of child support.

Mr. Richardson filed a petition in July 1996, requesting that the court hold Ms. Moore in contempt for violating the March order when she cut off all visitation after the move to Texas. In her counterclaim, Ms. Moore contended that Mr. Richardson had failed to pay child support, asserted that the visitation was not properly supervised, and alleged that the child had told Texas DHS workers that she had been physically and emotionally abused after the Arkansas court had ordered that the visits be supervised. Ms. Moore attached copies of affidavits from Rachel Oquendo, a child sexual-assault counselor at First Step in Texas. She also responded that an active DHS case was pending in this matter in Texas, and if she allowed visitation, action would be taken against her by the Texas DHS.

A hearing was held in Sebastian County on October 21, 1996, at which time the court heard testimony from both parents and conducted an in camera interview with the child. In its October 22 order, the court expressed its reluctance to modify the supervised visitation ordered the previous March, where the court had concluded that the child was not in danger. The court then found that the allegations of child abuse in both Arkansas and Texas had not been substantiated, and decided that it would not cut off the child’s natural father’s visitation rights on the basis of the evidence and testimony presented. However, the chancery court stressed that visitation be supervised at all times by Mr. Richardson’s mother, Martha O’Neal, or by Mr. O’Neal, her husband.

On November 25, 1996, a Texas court issued an ex parte protective order finding that Ms. Moore was in “clear and present danger of family violence” and ordering Mr. Richardson to appear at a hearing in Seymour, Texas, on December 17, 1996, to show cause why this order should not become permanent. The emergency order was effective for twenty days. Mr. Richardson made a general appearance on December 17, and provided the Texas court with a certified copy of the Arkansas court’s October order.

On January 3, 1997, Mr. Richardson filed a motion for contempt in Sebastian County, asserting that he was being denied visitation and that Ms. Moore was seeking to have the State of Texas assume jurisdiction to modify visitation. Mr. Richardson’s attorney called the court’s attention to a hearing scheduled by the Texas court for February 3, 1997, to consider whether to terminate Mr. Richardson’s parental rights.

Chancellor Harry Foltz, who had been exercising continuing jurisdiction in the Arkansas court, sent Judge David Hajek of the 50th judicial district in Seymour, Texas, a letter dated January 17, 1997, attempting to resolve an apparent jurisdictional conflict. In the letter, Chancehor Foltz stated his belief that the Arkansas court retained jurisdiction in the case under 28 U.S.C. § 1738A(d) (1994), because the father continued to reside in Arkansas and the original custody determination was made in compliance with the provisions of the PKPA and the UCCJA. He informed the Texas court that he had a pending motion for contempt before him, set for hearing on March 13, and requested a response from Judge Hajek.

Ms. Moore filed a motion to dismiss the contempt proceeding on March 4, 1997, alleging that the chancery court (1) did not have personal jurisdiction over the parties, (2) did not have subject-matter jurisdiction over the issue, and (3) could not act because another action was pending between the same parties arising out of the same transaction or occurrence. In her brief in support of her motion to dismiss, Ms. Moore alleged that the Texas court now has jurisdiction over this proceeding. Ms. Moore attached a copy of the protective order that the Texas court entered on February 11, 1997, stating that both parties made a personal appearance on December 17, 1996, and finding that the Texas court properly had jurisdiction over the matter. The Texas court found that Mr. Richardson had committed family violence since the last Arkansas court order, and that it was in the child’s best interest to prohibit Mr. Richardson from contacting or approaching the child and Ms. Moore, except within the parameters approved by the court. The Texas court separately modified visitation, ordering that it occur only under the supervision of Diana Lochridge, a licensed professional counselor in Texas.

After the March 13 hearing, the Arkansas court entered an order setting forth its findings. In its March 17 order, the court denied Ms. Moore’s motion to dismiss for lack of jurisdiction, stating that it had had jurisdiction over this case and these parties since it entered the initial divorce complaint in 1993, and had exercised this jurisdiction as recently as October 22, 1996, when Ms. Moore, as well as Mr. Richardson, had requested and received relief from the Arkansas court. In the order, the Arkansas court claimed to have jurisdiction under the PKPA, 28 U.S.C. § 1738A(d). The court also stated that it had attempted to comply with the provisions of the UCCJA requiring that two courts involved in simultaneous proceedings communicate with one another, but that the Texas court did not respond. See Ark. Code Ann. § 9-13-206 (Repl. 1993). The court found Ms. Moore in contempt for violation of its visitation orders and for failing to appear in violation of its January 3 order to show cause. The court ordered the sheriff to incarcerate Ms. Moore until a hearing could be held to determine if she should be released, or until she posted a $2,500 bond to insure her presence at the next hearing. From this order, Ms. Moore brings this appeal.

Ms. Moore argues that the Arkansas court erred in ruling that it had continuing jurisdiction because Mr. Richardson, through his general appearances before the Texas court on December 17 and February 7, “submitted himself and fully engaged in the litigation process.” She states that, by his appearance, he acquiesced and waived his right to object to the Texas court’s assumption of jurisdiction.

Ms. Moore also contends that the Texas court properly had jurisdiction under the PKPA, even though Arkansas had original jurisdiction under the UCCJA. She alleges that the Texas court correctly exercised jurisdiction for two reasons, citing 28 U.S.C. § 1738A(c): (1) because Texas is now the “home state” of the child and is therefore given jurisdictional preference under the PKPA, and 28 U.S.C. § 1738A(c)(2) because it was necessary to protect the child from continued mistreatment or abuse under the “emergency jurisdiction” provision of the PKPA.

Ms. Moore attempts to analyze jurisdiction in terms of whether Mr. Richardson’s appearance before the Texas court waived his right to object to jurisdiction, mischaracterizing the issue as one of personal jurisdiction, rather than an issue of subject-matter jurisdiction, which is a defense that cannot either be waived by the parties at any time or conferred by the parties’ consent. See Ark. R. Civ. P. 12(h)(3). Under the PKPA and UCCJA, child-custody jurisdiction is a matter of subject-matter jurisdiction. 1 Jeff Atkinson, Modern Child Custody Practice § 3.31, at 175 (1986). Therefore, the fact that Mr. Richardson may have entered a general appearance before the Texas court does not waive his right to contest the Texas court’s subject-matter jurisdiction. See, e.g., McBride v. McBride, 688 So.2d 856 (Ala. Ct. Civ. App. 1997) (stating that the UCCJA provisions relate to subject-matter jurisdiction, which cannot be vested by the parties even if all parties consent and request an adjudication on the merits).

When dealing with state conflicts over child-custody jurisdiction, we analyze the facts under the provisions of the UCCJA and PKPA. Snisky v. Whisenhunt, 44 Ark. App. 13, 17, 864 S.W.2d 875, 878 (1993). Orders providing for visitation or modifying visitation come within the PKPA’s definition of “custody determinations.” Id.; 28 U.S.C. § 1738A(b)(3). Where the UCCJA and PKPA conflict, the PKPA preempts. Garrett v. Garrett, 292 Ark. 584, 587, 732 S.W.2d 127, 128 (1987). Congress was seeking to minimize jurisdictional conflicts such as this one when it enacted the PKPA. Id. The Act specifically mandates that:

The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.

28 U.S.C. § 1738A(a).

Under these terms of the PKPA, the Texas court should not have taken jurisdiction to modify the custody or visitation order of the Arkansas court unless it met the following two conditions under subsection (f): (1) Texas must have jurisdiction under one of the criteria of 1738A(c), and (2) the Arkansas court that issued the initial custody order must have either declined jurisdiction or no longer had jurisdiction. In this case, Texas did specifically determine that it had jurisdiction under subsection (c)(2)(A) as the home state of the child; however, under the second prong of subsection (f), Texas was not permitted to exercise jurisdiction unless the Sebastian County Chancery Court had declined to exercise jurisdiction, or no longer had jurisdiction.

Because the Arkansas court had clearly not declined to exercise jurisdiction, we consider only whether the court no longer had jurisdiction. Ms. Moore claims that the Arkansas court erroneously attempted to retain jurisdiction under subsection (c) (2) (A) of the PKPA. On the contrary, Chancellor Foltz stated in his March 17, 1997, order that the chancery court retained continuing jurisdiction in the case under 28 U.S.C. § 1738A(d) because the father continued to reside in Arkansas and the original custody determination was made in compliance with the provision of the PKPA and the UCCJA. The chancery court was correct.

Subsection (d) of the PKPA holds great importance in child-custody determinations because in it Congress expressly declared that the “jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.” Subsection (c)(1) provides that a “child custody determination made by a court of a State is consistent with the provisions of this section only if— such court has jurisdiction under the law of such State.”

The Arkansas court must have had jurisdiction under its state UCCJA, Ark. Code Ann. § 9-13-201 to -228 (Repl. 1993), in order to continue to exercise jurisdiction. Under our UCCJA, the Sebastian County Chancery Court clearly had jurisdiction to modify its February 1993 order, the original order granting custody and visitation. Section 9-13-203 provides:

A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of commencement of the proceeding, ....

Ark. Code Ann. § 9-13-203(a)(l). At the time of the divorce decree, the child had lived in Arkansas all of her life. Although Ms. Moore later removed herself and the child, Mr. Richardson continues to reside in Sebastian County and that county’s chancery court has continued to exercise its jurisdiction and has modified its original order on several occasions, at both parties’ requests. We conclude that the requirements of subsection (c)(1), and therefore of subsection (d), of the PKPA have been met.

Because we have determined that the Arkansas court had neither declined nor lacked jurisdiction to modify its initial visitation decree, we conclude that the Texas court does not have jurisdiction under 28 U.S.C. § 1738A(f).

We note that at the hearing before the Sebastian County Chancery Court on March 13, Ms. Moore’s counsel alleged that perhaps the Texas court was exercising concurrent jurisdiction. The PKPA expressly provides that a court cannot exercise jurisdiction in a proceeding if a court in another state is exercising jurisdiction consistent with the provisions of the PKPA. 28 U.S.C. § 1738A(g). The purpose of this provision is to avoid “the havoc wreaked by simultaneous and competitive jurisdiction.” Murphy v. Danforth, 323 Ark. 482, 490, 915 S.W.2d 697, 702 (1996); see also Atkins v. Atkins, 308 Ark. 1, 823 S.W.2d 816 (1992). However, one state may assume jurisdiction and become an alternate forum where the initial state declines to exercise its jurisdiction. See Snisky v. Whisenhunt, 44 Ark. App. 13, 864 S.W.2d 875 (1993).

Ms. Moore argues that the Texas court’s jurisdiction takes precedence because Texas is now the “home state” of the child, a status that is given priority under the PKPA. However, we have stated that we give priority to jurisdictional bases under the PKPA in the following order:

(1) continuing jurisdiction; (2) home-state jurisdiction; (3) significant-connection jurisdiction; and (4) jurisdiction when no other jurisdictional basis is available.

Murphy v. Danforth, 323 Ark. at 490, 915 S.W.2d at 701 (citing 28 U.S.C. § 1738A(c); Atkinson, Modern Child Custody Practice § 3.24, at 165). Even if the Texas court is now the home state of the child, the Arkansas court properly exercised continuing jurisdiction because that basis has priority over home-state jurisdiction under the PKPA.

Ms. Moore also claims that the Texas court assumed emergency jurisdiction to protect the minor child from continued abuse or mistreatment, based on the child’s allegations.

The PKPA provides for emergency jurisdiction. as a means for a state that does not possess exclusive continuing jurisdiction to enter a temporary order until the state with continuing jurisdiction is able to determine the issues. Roger M. Baron, Federal Preemption in the Resolution of Child Custody Jurisdiction Disputes, 45 Ark. L. Rev. 885, 910 (1993). The PKPA and UCCJA both contain almost identical provisions that allow a court to exercise emergency jurisdiction when the child is physically present and a genuine emergency, such as abandonment or abuse, exists. Murphy v. Danforth, 323 Ark. at 491, 915 S.W.2d at 702 (citing 28 U.S.C. § 1738A(c)(2)(C); Ark. Code Ann. § 9-13-203(a)(3)). Jurisdiction based on an emergency under our version of the UCCJA may only be used in extreme or extraordinary situations where the immediate health and welfare of the child is at stake. Caskey v. Pickett, 274 Ark. 383, 386, 625 S.W.2d 473, 475 (1981).

We have stated that emergency powers are limited and should not be used to permanently modify a custody order. Murphy v. Danforth, 323 Ark. at 491, 915 S.W.2d at 702. Rather, they should only be used to give a party custody for as long as it takes to travel with the child to the proper forum to seek a permanent modification. Id. “Emergency jurisdiction may be exercised independently of the order of preferences, but relief under emergency jurisdiction would normally be only temporary and the parties would be directed to return to a court with the most preferred jurisdictional basis.” Atkinson, Modern Child Custody Practice § 3.01, at 109.

In Murphy, we quoted passages from Professor Atkinson’s treatise in which he suggests that a state exercising emergency jurisdiction might act to permanently modify an order where the evidence of neglect or abuse is available in that state, but difficult or impossible to obtain in the child’s home state. Murphy v. Danforth, 323 Ark. at 491, 915 S.W.2d at 702 (quoting Atkinson, Modern Child Custody Practice § 3.18, at 148, n. 170). However, Professor Atkinson advises that this problem may be avoided by taking testimony and transmitting the evidence to the other state. Id.

In this case, the Arkansas court had affidavits before it from Texas counselors and social workers, as well as Arkansas psychological evaluations, on which it relied in its order requiring that the child’s visits with her father be supervised at all times. The Arkansas court had the benefit of evaluations and reports made both in Texas and in Arkansas; therefore, a permanent modification by the Texas court was not appropriate if Texas was exercising authority under the emergency-jurisdiction provisions of the PKPA.

Ms. Moore argues that an emergency existed that required her to turn to the Texas court for relief, and the Texas court specifically stated in its order that an emergency existed because of the family abuse. However, under the PKPA and our case law, if a true emergency did exist, the Texas court possessed only the limited jurisdiction to give relief for the period of time that it took Ms. Moore to go to the appropriate forum to seek permanent modification of the custody order. While its protective order issued on November 17, 1996, may have been a proper exercise of emergency jurisdiction, its order dated February 11, 1997, clearly attempted to modify visitation in excess of those limited terms. It appears that at all times, the child remained in Ms. Moore’s custody and was apparently safe. Under these circumstances, she should have sought relief from the Arkansas court, from which she had sought relief several times before, as the court with preferred jurisdiction to permanently modify visitation.

In summary, the Arkansas court, which entered the initial custody and visitation order, retained continuing jurisdiction over the subject-matter and parties in this case under the PKPA and our state’s UCCJA. Because the Arkansas chancery court had continuing jurisdiction that it had not declined to exercise, the Texas court was without jurisdiction to permanently modify the Arkansas court’s order. Even if the facts had shown that there was a need to exercise emergency jurisdiction, the Texas court’s order went beyond the scope of emergency jurisdiction under the PKPA.

Affirmed.


author: Per Curiam.

text:
    Benjamin H. JORDAN, Sr., d/b/a Mid-South Masonry & Mechanical Company and Amwest Surety Insurance Company v. Carrie THOMAS
    98-139
    964 S.W.2d 399
    Supreme Court of Arkansas
    Opinion delivered March 12, 1998

      Benjamin Jordan, Sr., for appellants.

      Skokos, Bequette & Billingsley, P.A., by: Keith I. Billingsley, for appellee.
   Per Curiam.

Appellant Benjamin Jordan, Sr., has filed a motion for a rule on the clerk. The motion reflects that on May 29, 1997, the Pulaski County Circuit Court entered a judgment in favor of appellee Carrie Thomas on her claim against appellants for breach of a construction agreement. Subsequently, the trial court entered an order dismissing Jordan’s personal counterclaim for damages on July 1, 1997. Jordan tendered the record from the trial court to the clerk of this court on October 29, 1997; however, the clerk refused to accept the tender of the record on the basis that it was untimely. Jordan did not pursue the matter until February 6, 1998, when he filed his motion for rule on the clerk.

Upon our review of the record, we conclude that the trial court’s May 29, 1997, decree, which granted judgment in favor of appellee, was not appealable because it did not adjudicate all of the claims of the parties. See Ark. R. Civ. P. 54(b); String v. Kazi, 312 Ark. 6, 846 S.W.2d 649 (1993). The trial court did not enter an order dismissing Jordan’s counterclaim until July 1, 1997. Jordan filed a notice of appeal from the July 1 order on July 31, 1997, and he attempted to tender the record on October 29, 1997, the ninetieth day following his notice of appeal. Under Rule 5 of the Rules of Appellate Procedure, Jordan’s tender of the record was timely, and the clerk erred in refusing to docket the appeal and file the record. However, we note that Jordan cannot perfect an appeal on behalf of Amwest Surety Insurance Company because a corporation must be represented by a licensed attorney. See McAdams v. Pulaski County Circuit Court, 330 Ark. 848, 956 S.W.2d 869 (1997) (per curiam). Jordan is not an attorney, and he cannot perfect an appeal on behalf of the corporation. Accordingly, the motion for rule on the clerk is granted in part.


author: W.H. “Dub” Arnold, Chief Justice. Donald L. Corbin, Justice, W.H. “Dub” Arnold, Chief Justice.

text:
    P.A. STRICKLIN et al. v. Patrick Henry HAYS, Mayor of North Little Rock
    97-721
    965 S.W.2d 103
    Supreme Court of Arkansas
    Opinion delivered March 19, 1998
    [Supplemental opinion on denial of rehearing issued May 7, 1998.]

      Lavey & Burnett, by: John L. Burnett, for appellants.

      Jeannette L. Hamilton, Assistant City Att’y, for appellees.
   W.H. “Dub” Arnold, Chief Justice.

This case involves a salary dispute between the appellants, P.A. Stricklin and other North Little Rock firefighters, and the City of North Little Rock, of which appellee Patrick Henry Hays serves as mayor. Resolution of this appeal requires our interpretation of an initiated ordinance, adopted by popular vote in the November 1990 general election, which provides that North Little Rock firefighters and police officers are to receive salaries and benefits commensurate with Little Rock firefighters and police officers after considering rank, seniority, time in grade, and service. The trial court found that the initiated ordinance was valid but had lapsed, and thus concluded that the city no longer had any obligation to provide “parity pay” to the firefighters. Because we agree with the firefighters that the trial court erred in interpreting the initiated ordinance, we reverse and remand.

A procedural review of the history of the initiated ordinance is as follows. On June 18, 1980, an initiative petition was filed in the office of the North Little Rock City Clerk’s office. The text of the proposed ordinance read as follows:

“AN ORDINANCE TO PROVIDE THE NORTH LITTLE ROCK POLICE AND FIREMEN WITH SALARIES AND BENEFITS COMMENSURATE WITH THOSE OF THE LITTLE ROCK POLICE AND FIREMEN.”
BE IT ENACTED BY THE PEOPLE OF THE CITY OF NORTH LITTLE ROCK, ARKANSAS:
SECTION 1. That the North Little Rock Police and Firemen are to be provided with salaries and benefits commensurate with or greater than those of the Little Rock Police and Fire Departments, rank, seniority, time in grade and service considered.
SECTION 2. That the number of employees, ranks, and positions within each rank for the North Little Rock Police Department and Fire Department shall not be reduced to a level below that authorized as of January 1, 1980, except in case of extreme emergency.

After the citizens of North Little Rock approved this initiated ordinance in the November 1980 election, the city council passed Ordinance No. 5203 on January 5, 1981, adding the following two sections:

SECTION 3. That the sum of $700,000 is hereby appropriated from the general fund of the City of North Little Rock to fund the provisions of this ordinance.
SECTION 4. That the present salaries and benefits of the North Little Rock police and firemen have caused many of the policemen and firemen in the City to seek higher paying jobs leaving a serious shortage of trained police and firemen, therefore an emergency is hereby declared to exist and this Ordinance being necessary for the preservation of the public peace, health and safety, shall be in full force retroactive to January 2, 1981.

In December 1981, the city council passed Ordinance No. 5363, which directed the mayor to negotiate with each department head and assistant department head in the city to establish a salary. The ordinance contained a repealer clause, specifically repealing Ordinance No. 5203. Thereafter, Police ChiefWilliam Younts and his assistant filed suit against the city in Pulaski County Circuit Court, alleging that the city had considered factors other than rank, seniority, time in grade, and service in determining their salaries. The trial court found that the city council had not complied with Ordinance No. 5203, and that Ordinance No. 5363, purportedly repealing Ordinance No. 5203, was void. This court affirmed in Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984).

In 1983, the city council passed Ordinance No. 5494, amending Ordinance No. 5203 to exclude the Police Chief, Assistant Police Chief, and Fire Chief from the parity-pay obligation. Later in 1983, the city council referred to the voters Resolution No. 2521, a proposal to repeal parity pay, and, specifically, Ordinance No. 5203. At a special election held on February 7, 1984, the voters defeated this proposal.

In 1994, the requirements of the parity-pay ordinance were met by an agreement between the city and the firefighters’ union. This agreement expired by its own terms on December 31, 1994. The agreement renewed automatically for one year and expired on December 31, 1995. After the parties were unable to reach a new agreement, the firefighters filed the present complaint in Pulaski County Circuit Court on January 15, 1996, claiming that their salaries and benefits are not commensurate with or greater than those firefighters in Little Rock.

The parties agreed to file motions for summary judgment on the issue of the validity of the initiated ordinance. The city maintained in its motion that, when it provided the increases by making the $700,000 appropriation in Ordinance No. 5203 in 1981, it met its obligation under the initiated ordinance regarding parity pay. The city further claimed that it had no “continuing obligation” to provide further parity-pay increases after the increases it provided in January 1981.

In the firefighters’ motion for summary judgment, they argued that the city’s interpretation was inconsistent with its own previous treatment of the ordinance, and that the ordinance contained no language that parity-pay requirement was a “one-time-only” obligation. The trial court agreed with the city and dismissed the firefighters complaint. The firefighters appeal that decision.

We apply the same statutory construction rules to ordinances as we do to statutes. Tackett v. Hess, 291 Ark. 239, 723 S.W.2d 833 (1987). In interpreting a statute, we will give the words in the statute their ordinary meaning and common usage. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). If the language of a statute is plain and unambiguous, our analysis need go no further. Id.

In reviewing the text of the initiated ordinance in question, we observe that it does not contain a “sunset provision,” whereby the ordinance would expire on a certain date. See Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). Were we to agree with the trial court’s interpretation that the ordinance has “lapsed,” we would be “resorting to subtle and forced construction for the purpose of limiting or extending the meaning.” Thompson v. Younts, 282 Ark. at 527, citing City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977); Hicks v. Ark. State Medical Board, 260 Ark. 31, 537 S.W.2d 794 (1976). Moreover, as the firefighters point out in their brief, the city’s interpretation of the ordinance in question is inconsistent with its previous interpretations of the measure. Particularly, the city observed the obligation under Ordinance No. 5203 as continuing when it referred Resolution No. 2521 to the people in 1984, proposing to repeal the ordinance and the parity pay requirement. As we have recognized, “[a] cardinal rule in dealing with a statutory provision is to give it a consistent and uniform interpretation so that it is not taken to mean one thing at one time and something else at another time.” Morris v. McLemore, 313 Ark. 53, 852 S.W.2d 135 (1993). It is also significant that the voters rejected the proposal to repeal Ordinance No. 5203 and parity pay. As any doubtful interpretation of the initiated ordinance must be resolved in favor of the popular will, see Thompson v. Younts, supra, we must conclude that the trial court erred in accepting the city’s interpretation that the initiated ordinance had lapsed and that the city no longer had an obligation to provide parity pay to the firefighters.

The dissent raises an interesting issue; however, it was not developed below and the trial court did not consider it. While it might be appropriate for future consideration, under these circumstances, we will not consider it at this time.

Reversed and remanded for entry of an order consistent with this opinion.

Corbin, J., dissents.

Donald L. Corbin, Justice,

dissenting. I am concerned that this court is overlooking an important principle of law regarding the authority of city councils, and I dissent. I believe the initiated ordinance passed by the citizens of North Little Rock is invalid, as it is not the type of ordinance subject to the initiative power of the people as stated in Amendment 7 to the Arkansas Constitution of 1874. The ordinance is administrative in nature and infringes upon the duties given to the city councils by the General Assembly.

Arkansas Code Annotated § 14-43-502 (1987) provides in pertinent part:

(a) The city council shall possess all the legislative powers granted by this subtitle and other corporate powers of the city not prohibited in it or by some ordinance of the city council made in pursuance of the provisions of this subtitle and conferred on some officer of the city.
(b) (1) The council shall have the management and control of finances, and of all the real and personal property belonging to the corporation.

Arkansas Code Annotated § 14-55-101 (1987) provides that municipal corporations shall have the power to make and publish ordinances. Arkansas Code Annotated § 14-55-301 (1987), on the other hand, provides that the city council may refer any proposed ordinance to the people for its adoption or rejection, in accordance with the procedures outlined in Amendment 7.

Amendment 7, in turn, establishes that the legislative power of the people of this State shall be vested in the General Assembly, but that the people reserve the power to propose legislative measures, including those on a local level. This authority does not, however, include the right to initiate administrative measures, such as the fixing of salaries for employees of a city’s police and fire departments. This authority was granted to the city council by the General Assembly in Ark. Code Ann. § 14-51-304 (1987), which provides:

The city council or board [of civil service commissioners] shall from time to time fix the number of employees and the salaries to be drawn by each rank in the fire and police departments of their respective cities.

This court has long recognized that not all ordinances enacted by a city council are considered to be municipal legislation. Scroggins v. Kerr, 217 Ark. 137, 228 S.W.2d 995 (1950). “City governments in Arkansas know no such complete separation of powers as would automatically classify all aldermanic activities as legislative in character.” Id. at 142, 228 S.W.2d at 998. City councils also possess quasi-judicial functions to which Amendment 7 reserves no power of referendum to the people of those cities. Id. Moreover, city councils often enact resolutions and ordinances that are administrative or executive in nature. Id. This court explained the difference between such council functions:

“Both legislative and executive powers are possessed by municipal corporations .... The crucial test for determining what is legislative and what is administrative is whether the ordinance is one making a new law, or one executing a law already in existence .... Executive action evidenced by ordinance or resolution is not subject to the power of the referendum, which is restricted to legislative action as distinguished from mere administrative action. The form or name does not change the essential nature of the real step taken. The referendum ... is designed to be directed against 'supposed evils of legislation alone’. ‘To allow it to be invoked to annul or delay executive conduct would destroy the efficiency necessary to the successful administration of the business affairs of a city.’” 1 McQuiUin, Municipal Corporations (2d Ed., Rev., 1940) 1000.

Id. at 143, 228 S.W.2d at 998 (emphasis added). This court explained further:

[I]f there is a law already enacted which authorizes the very action provided for by a later resolution or ordinance, then there is no right to have a referendum on the new measure. It is not a new law, but only a procedural device for administering an old law. The right of referendum should have been exercised when the original measure, the enactment that put the law on the books, was newly adopted.

Id. at 145, 228 S.W.2d at 999. See also City of North Little Rock v. Gorman, 264 Ark. 150, 568 S.W.2d 481 (1978). This court similarly held that, under Amendment 7, the right of referendum “may not be invoked except against a ‘legislative proposal or enactment.’” Chastain v. City of Little Rock, 208 Ark. 142, 144, 185 S.W.2d 95, 96 (1945) (quoting Amendment 7). Thus, it is clear from these decisions that the power of the people to initiate measures by referendum, as outlined in Amendment 7, applies only to laws and ordinances that are legislative in nature. Conversely, those laws or ordinances that are administrative or executive in nature are not subject to the power of referendum.

Correspondingly, in Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984), where the proposed city ordinance involved the fixing of salaries of police and fire personnel and an agreement to binding arbitration in such matters, this court held:

The basic defect in this ordinance lies in the rule of law, twice stated in the Constitution, that no municipal corporation shall be authorized to pass any law contrary to the general laws of the state. Ark. Const., Art. 12 § 4, and Amendment 7. It is provided by state law that a city’s legislative body is to fix the number and salaries of its policemen and firemen. Ark. Stat. Ann. § 19-1617 (Repl. 1980) [currently codified as section 14-51-304]. It is fundamental that a city’s legislative power cannot be delegated to a committee or an administrative body. City of Harrison v. Snyder, 217 Ark. 528, 231 S.W.2d 95 (1950). Nor can the city directors delegate or bargain away their legislative authority. In holding that a city cannot be compelled to bargain collectively with its employees, we have said:
Basically, the reason for the rule is that the fixing of wages, hours, and the like is a legislative responsibility which cannot be delegated or bargained away.

Id. at 460, 677 S.W.2d at 835-36 (emphasis added) (quoting City of Fort Smith v. Council No. 38, AFL-CIO, 245 Ark. 409, 413, 433 S.W.2d 153, 155 (1968)). This court held further:

As we have noted, the Initiative and Referendum Amendment itself provides that “no local legislation shall be enacted contrary to the Constitution or any general law of the State.” Since state law prohibits a city from abdicating or delegating its legislative power to fix its employees’ pay, that result cannot be accomplished by an initiated ordinance. Hence the binding-arbitration ordinance would be invalid even if approved by the voters.

Id. at 461, 677 S.W.2d at 836 (emphasis added). Thus, the decision in Czech demonstrates that the people’s power to initiate ordinances by referendum has no application where there is state law to the contrary, and that any ordinance so initiated would be invalid.

Accordingly, the ordinance passed by the voters of North Litde Rock establishing that the police and fire personnel of that city would be paid a salary commensurate with similar positions and seniority occupied by such persons employed by the city of Little Rock is invalid. State law had already established that only the city council or the board of civil service commissioners is to fix such employees’ salaries. An ordinance that effectively strips these legislative bodies of their statutory authority to make such determinations is invalid for the reasons outlined in Czech. Furthermore, beyond its invalidity, the practical implications of the ordinance creates a potential crisis for the city of North Little Rock, were it ever unable to fiscally fund such commensurate salaries.

In sum, whether we consider this ordinance to be administrative in nature or a legislative ordinance that is in conflict with an already established law of this State, the ordinance is not the type subject to the people’s power of referendum and is, thus, invalid. It impermissibly infringes upon the power of the city council to fix the salaries of its police and fire personnel and effectively ties the hands of the individual council members, such that they are no longer part of a deliberative body acting independently, exercising their best judgments on this issue. See Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996), cert. denied, 117 S. Ct. 1081 (1997). The ordinance should be considered as nothing more than an advisory indication of how the voters of that city wish their tax dollars to be spent; it cannot be binding law. If it is the continuing desire of the citizens of North Little Rock that their city police and fire personnel be paid the same as their counterparts in Little Rock, they need only voice such desires to their elected council members. The council members, in turn, could debate the feasibility of the request, exercising their judgments in the best interest of both the city and its residents. Likewise, if those citizens are unhappy with the individual performances of the council members, their remedy is to voice their disapproval at the polls by voting for candidates who share their views; they have no recourse to ensure such a measure from the referendum procedure established by Amendment 7. I would thus affirm the trial court’s ruling, as it reached the right result, even though it may have been for a different reason. See Calcagno v. Shelter Mut. Ins. Co., 330 Ark. 802, 957 S.W.2d 700 (1997).

Lavey & Burnett, by: John L. Burnett, for appellants.

Jeannette L. Hamilton, Asst. City Attorney, for appellees.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

MAY 7, 1998

965 S.W.2d 103

W.H. “Dub” Arnold, Chief Justice.

The appellants, P.A. Stricklin and other North Little Rock firefighters, challenged an initiated city ordinance that provided that North Little Rock firefighters and police officers are to receive salaries and benefits commensurate with Little Rock firefighters and police officers after considering rank, seniority, time in grade, and service. Specifically, the firefighters appealed the trial court’s decision that the ordinance had lapsed. We reversed, noting that there was no “sunset provision” in the ordinance indicating that it expired on a certain date. The dissenting opinion responded that the people had no power to initiate the ordinance in the first place, since the subject matter involved a power reserved to the city council under Ark. Code Ann. § 14-51-304 (1987), namely the power to fix salaries of employees in the fire and police departments. Under Amendment 7 to the Arkansas Constitution, the dissenting justice wrote, the people only reserve the power to propose legislative measures.

The majority opinion included the following language:

The dissent raises an interesting issue; however, it was not developed below and the trial court did not consider it. While it might be appropriate for future consideration, under these circumstances, we will not consider it at this time.

In their petition, the firefighters ask us to “correct” these sentences. They claim that these constitutional issues were raised by the City in its counterclaim, and the trial court ruled against the City. While the abstract reflects that the issue of the constitutionality of the ordinance was raised in the City’s counterclaim, as we stated in our opinion, the issues raised by the dissenting opinion were never developed below. Particularly, the firefighters responded to the City’s counterclaim that the constitutionality of the ordinance was resolved against the City in Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984). To be sure, the issues raised by the dissenting opinion in the present case are not the same as those in Thompson v. Younts, supra. In any event, the trial court dismissed the City’s counterclaim, and the City did not appeal that decision to this court. In sum, the present case was argued to the trial court and to this court on appeal on the issue of whether the initiated ordinance had lapsed. We decided that issue in the firefighters’ favor. The petition for rehearing is denied.

Petition denied.


author: David Newbern, Justice.

text:
    Michael SNYDER v. STATE of Arkansas
    CR 97-570
    965 S.W.2d 121
    Supreme Court of Arkansas
    Opinion delivered March 19, 1998

      Val P. Price, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly S. Terry, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Michael Snyder, the appellant, was convicted of two counts of rape by deviate sexual activity with an eight-year-old boy. He was sentenced to fifteen years’ imprisonment on each count, to be served consecutively. Mr. Snyder argues that the Trial Court erred by admitting evidence, during the sentencing phase of his trial, of a prior juvenile delinquency adjudication. He contends that the prior adjudication was inadmissible pursuant to the law extant at the time the prior juvienile delinquency petiton was filed and at the time the adjudication occurred. He argues that the application of the current statute, which would allow its admissibility was a violation of the ex post facto legislation principle, citing cases interpreting the United States Constitution. He also argues that the Trial Court’s order that his name be registered as an habitual child sex abuser was in error because his prior juvenile adjudication was not a “conviction,” and thus his case does not fall within the statutory mandate for registration. We agree with the latter point of appeal but not with the former; thus we affirm in part and reverse and remand in part.

1. Juvenile delinquency adjudication

Mr. Snyder fails to cite the law applicable in 1991 to admissibility of juvenile adjudications in subsequent criminal proceedings. He contends, however, that it would have made the adjudication inadmissible in the proceedings now before us.

The current law dealing with admissibility of juvenile adjudications in subsequent criminal-trial sentencing proceedings is found in Act 535 of 1993, § 2(c)(3) and Act 551 of 1993, § 2(c)(3). Those acts are codified as Ark. Code Ann. § 16-97-103 (Supp. 1997). Section 16-97-103 (3) (i) provides that prior juvenile adjudications are admissible only if the relevant value of the adjudication outweighs its prejudicial value. Mr. Snyder does not argue on appeal that his prior adjudication is inadmissible based on this provision. The statutory provision also provides that prior juvenile delinquency adjudications can only be admitted for crimes for which the juvenile could have been tried as an adult. § 16 — 97—103(3) (ii). Mr. Snyder, whose prior adjudication was based on rape, does not contend that he could not have been tried as an adult based on his crime of rape. The only time limitation on use of such an adjudication in the sentencing phase of a trial resulting from a subsequently committed offense is, “That in no event shall delinquency adjudications for acts occurring more than ten (10) years prior to the commission of the offense charged be considered; . . . .” § 16 — 97—103(3)(iii). Mr. Snyder does not contend that the acts for which he was adjudicated delinquent occurred more than ten years prior to the acts of which he stands convicted in the case now before us.

Mr. Snyder argues that the admission of the prior juvenile delinquency adjudication violates the ex post facto clause, citing Weaver v. Graham, 450 U.S. 24, 27 (1981), in which the United States Supreme Court stated: “[O]ur decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” He contends that § 16-97-103 was applied retrospectively and that he was disadvantaged by its application. Assuming that there was a law in 1991 that would have prevented admissibility of Mr. Snyder’s juvenile delinquency adjudication in a subsequent criminal trial, we cannot agree that application of the law applicable at the time of the subsequent trial would violate the ex post facto principle.

The United States Supreme Court, in California Dept. of Corrections v. Morales, 514 U.S. 499 (1995), stated that although the Weaver case “suggested that enhancements to the measure of criminal punishment fall within the ex post facto prohibition because they operate to the ‘disadvantage’ of covered offenders, . . . that language was unnecessary to the results in those cases and is inconsistent with the framework developed in Collins v. Youngblood, 497 U.S. 37, 41 (1990).” Id. at 506 n. 3. The Supreme Court further explained that “[a]fter Collins, the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of ‘disadvantage,’ nor, ... on whether an amendment affects a prisoner’s ‘opportunity to take advantage of provisions for early release,’ . . . but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Id.

Mr. Snyder does not argue that the admissibility of the evidence of the prior juvenile adjudication changed the nature or definition of the offense for which he was tried and convicted or that it increased the penalty. It is thus clear to us that the ex post facto principle was not violated. Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987); Smith v. State, 291 Ark. 163, 722 S.W.2d 853 (1987). Although not in the context of considering a prior juvenile adjudication, we have held that the provisions for admissibility of evidence in a sentencing proceeding found in § 16-97-103 do not violate the ex post facto principle. Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994). We affirm the conviction.

2. Habitual Child Sex Offender Registration Act

In his second point on appeal, Mr. Snyder argues that the Trial Court erred in certifying him as an habitual child sex offender pursuant to Act 587 of 1987, the Habitual Child Sex Offender Registration Act, since replaced by Act 989 of 1997, the Sex and Child Offender Registration Act of 1997, Ark. Code Ann. §§ 12-12-901 through 12-12-920 (Supp. 1997). His argument is that his juvenile delinquency “adjudication” should not be considered a prior “conviction” for purposes of the prior Act. At the time of Mr. Snyder’s conviction, the Act imposed a registration requirement on persons who had been “convicted” of certain sex offenses a second or subsequent time. See Act 587, §2.

We adhere to the basic rule of statutory construction which is to give effect to the intent of the General Assembly. Coleman v. State, 327 Ark. 381, 938 S.W.2d 845 (1997). Absent a clear indication that “a drafting error or omission [has] circumvent[ed] legislative intent,” we do not “interpret a legislative act in a manner contrary to its express language.” Id. See City of Little Rock v. Arkansas Corp. Comm., 209 Ark. 18, 180 S.W.2d 382 (1945) (“[I]f the words are free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation.”).

The clear language of Act 587, § 1, provided, in part, that a “‘[h]abitual child sex offender’ includes any person who, after August 1, 1987, is convicted a second or subsequent time .... [Emphasis supplied.]” The General Assembly has recognized that there is a difference between a conviction and an adjudication. See, e.g., Ark. Code Ann. § 16-97-104 (Supp. 1997) (“Proof of prior convictions, both felony and misdemeanor, and proof of juvenile adjudications shall follow the procedures outlined in §§ 5-4-502 — 5-4-504.”). See also Ark. Code Ann. § 5-73-130(a) (Repl. 1997) (“Whenever a person under eighteen (18) years of age is unlawfully in possession of a firearm, the firearm shall be seized and, after an adjudication of delinquency or a conviction, shall be subject to forfeiture.”).

We reverse the order applying the Habitual Child Sex Offender Registration Act because Mr. Snyder does not have a prior “conviction” of a sex offense. We remand the case for orders consistent with this opinion.

Affirmed in part, reversed and remanded in part.