author: Robert L. Brown, Justice.

text:
    Freddie Mark FIELDS, as Parent and Next Friend of Stephen Hunter Fields, a Minor v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY
    02-121
    87 S.W.3d 224
    Supreme Court of Arkansas
    Opinion delivered September 19, 2002

      Laws & Murdoch, P.A., by: Hugh R. Laws, for appellant.

      Hardin, Jesson & Terry, PLC, by: J. Rodney Mills and J. Gregory Magness, for appellee.
   Robert L. Brown, Justice.

This is an appeal by appellant Freddie Mark Fields (Fields), as parent and next friend of Stephen Hunter Fields, a minor (Hunter), from an order of summary judgment granted in favor of appellee Southern Farm Bureau Casualty Insurance Company (Southern Farm). Fields urges that this court should abrogate the parental-immunity doctrine altogether or, alternatively, create an exception to the doctrine where the motor vehicle accident is covered by liability insurance. We agree that a new exception to the parental-immunity doctrine is warranted under the facts of this case, and we reverse the order of summary judgment and remand the case for further proceedings.

This is a direct-action lawsuit brought by Fields against Southern Farm for payment of benefits under the uninsured motorist provision of Fields’s motor vehicle liability insurance policy. The dispute centers on the injuries to Hunter. Hunter’s mother, Cheryl D. Fields (Cheryl), and Fields had been married and were divorced in April 1996. Following the divorce, the parents had joint custody of Hunter at all times relevant to this case.

On January 10, 1997, Hunter was riding in an automobile with his mother when they were injured in a single-car accident. According to the motor vehicle accident report, Cheryl lost control of her 1990 Ford Van during heavy snowfall while traveling westbound on Interstate 40 just outside of Russellville. Her van spun counter-clockwise once, went off the road and into the median, and tumbled down a steep embankment, rolling three times before coming to rest.

According to the complaint, Hunter was thrown from the vehicle and severely injured. He suffered a broken right femur and numerous bruises and contusions over his entire body. As a result of the accident, he now suffers from “residual leg length discrepancy,” which presumably means that his right leg after the accident was shorter than his left leg. He suffered extreme pain throughout his recovery, according to the complaint, including nightmares and restlessness.

It is undisputed that Cheryl was driving her van negligently at the time of her accident. Also, when the accident occurred, she had no liability insurance on her van. Fields had a motor vehicle insurance policy with Southern Farm, which included a standard uninsured motorist coverage endorsement, with bodily injury limits of $25,000 per person and a medical benefit of $5,000. The endorsement included coverage for members of Fields’s family residing in his household, which meant that Hunter was covered. On June 7, 2001, Fields sued Southern Farm in a direct action for uninsured motorist coverage for Hunter’s injuries, which resulted from Cheryl’s negligent driving. He prayed for damages of $30,000 for his medical injuries and for pain and suffering. As Exhibit A to his complaint, Fields attached Southern Farm’s uninsured motorist endorsement to his automobile liability insurance policy. Southern Farm answered and denied liability. The insurer then moved for summary judgment based on the parental-immunity doctrine. The insurer contended in its supporting brief that because Hunter was not “legally entitled to collect” damages from his mother, the uninsured driver, Southern Farm was not obligated to pay under the policy. On January 10, 2002, the trial court entered an order granting summary judgment to Southern Farm based on parental immunity.

I. Parental Immunity

Fields now appeals on behalf of Hunter and argues that the parental-immunity doctrine should be abrogated in toto or rendered inapplicable to direct-action lawsuits where motor vehicle liability coverage provides uninsured motorist benefits to a child for the negligent acts of a parent. We begin our analysis by referencing the appropriate standard of review to be applied for an appeal from an order of summary judgment:

We have repeatedly held that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998); Pugh, 327 Ark. 577, 940 S.W.2d 445. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998); Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. George, 337 Ark. 206, 987 S.W.2d 710.

Worth v. City of Rogers, 341 Ark. 12, 20, 14 S.W.3d 471, 475 (2000). See also Ark. R. Civ. P. 56(c)(2).

Both parties agree that under current law, Hunter’s complaint would be barred because Cheryl negligently caused his injuries, and the parental-immunity doctrine bars suits by children for the negligence of their parents. Nevertheless, in 1999, this court stated that it planned to reexamine the parental-immunity doctrine, when the issue was appropriately developed. Spears v. Spears, 339 Ark. 162, 3 S.W.3d 691 (1999). Fields argues that in Spears, this court refused to entertain an argument to abolish the parental-immunity doctrine only because the appellant had failed to present an adequate argument on appeal. We did note in Spears that the appellant argued “in conclusory fashion, that thirty states have allowed suits against parents involving automobile accidents but cites no caselaw to support the conclusion and otherwise provides us with a paucity of cases to warrant changing our common law.” Spears, 339 Ark. at 165-166, 3 S.W.3d at 693-694. Noting that “[w]e do not overrule our common law cavalierly or without giving considerable thought to the change,” this court refused to consider the appellant’s argument to do away with parental immunity. Id. at 166, 3 S.W.3d at 693-694. Finally, we observed in Spears that the appellant had failed to plead insurance coverage in the trial court which rendered this court unable to consider the issue on an appeal from a judgment on the pleadings. Id.

Fields now urges that he has met the standard we set out in Spears by specifically pleading liability insurance and by bolstering his argument with supporting authorities. Specifically, he points to the decline of the parental-immunity doctrine throughout the country and cites us to case authority from a variety of jurisdictions. Fie further emphasizes that the Restatement (Second) of Torts § 895 G supports the complete abrogation of the doctrine, and he argues that the policies underlying the doctrine — family harmony, maintenence of parental discipline, the potential for fraud, and the adequacy of criminal sanctions to punish child abuse — are no longer sufficient to support the doctrine.

Southern Farm counters these assertions with three principal arguments: (1) the doctrine of stare decisis requires adherence to the parental-immunity doctrine; (2) the public policies underlying the parental-immunity doctrine are still as valid as they were in 1891 when the doctrine had its genesis in Mississippi; and (3) the separation of powers dictates that this court defer to the General Assembly in fashioning exceptions or abolishing a doctrine that has been a part of Arkansas common law for over sixty years.

The parental-immunity doctrine was created judicially in this state in the case of Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938). In that case, we held that “an unemancipated minor may not maintain an action for an involuntary tort against his parent in this state.” Id. at 837, 114 S.W.2d at 470. The policy reasons cited by this court in support of the doctrine were the State’s interest in maintaining family peace and harmony, the adequacy of criminal sanctions to punish child abuse, and the upholding of parental authority. Id. at 834-836, 114 S.W.2d at 469-470. This court further underscored the lack of statutory authority for an unemancipated minor to maintain an action for an involuntary tort against a parent. Id. at 836-837, 114 S.W.2d at 470. The fact that the parent carried liability coverage was not sufficient reason to refuse to adopt the rule, according to the Rambo court.

A year after handing down Rambo, this court refused to apply the parental-immunity doctrine to a case where an adoptive father poisoned his adopted son. Brown v. Cole, 198 Ark. 417, 420, 129 S.W.2d 245, 247 (1939) (“[w]e are not willing to extend the doctrine [of parental immunity] so as to prevent an adopted child from bringing suit against his adoptive father for a voluntary tort committed upon him by his adoptive father.”). The Court explained that the reason for adopting the parental-immunity doctrine was to prevent strife among family members, who were “bound by the same blood and natural ties of affection.” Id. at 420, 129 S.W.2d at 247. This court reasoned that the lack of blood ties between the adoptive father and adoptive son arid the fact that the son was subjected to a voluntary tort rather than an involuntary tort distinguished the case from Rambo. Id. at 421, 129 S.W.2d at 248.

In 1980, we extended the doctrine to persons standing in loco parentis to an unemancipated minor for liability for an involuntary tort committed against that minor. Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980). In Inmon, we said: “We are not persuaded by appellant’s contentions that the family immunity doctrine has become a legal anachronism. Nor do we believe that the policy considerations of family harmony and prevention of collusion and fraud are no longer valid.” Id. at 223, 594 S.W.2d at 854.

In 1982, this Court held that the parental-immunity doctrine did not apply to a case where a father became willfully and intentionally intoxicated and then drove a vehicle while intoxicated with his child as a passenger and injured that child. Atwood v. Atwood’s Estate, 276 Ark. 230, 633 S.W.2d 366 (1982). We refused to apply the doctrine to those facts, and held that “it is clear that a willful tort is beyond the scope of the parental-immunity doctrine as it is applied in Arkansas.” Id. at 238, 633 S.W.2d at 370.

In 1986, this court held that a parent or person acting in loco parentis is immune from suit for an unintentional injury to his child but not for an intentional injury to that child. Carpenter v. Bishop, 290 Ark. 424, 720 S.W.2d 299 (1986). In Carpenter, the issue was whether a viable fetus born dead as a result of a mother’s negligence has a cause of action against the mother. We reviewed our prior parental immunity decisions and summarized the doctrine:

[A] parent or person acting in the place of a parent is immune from suit for unintentional injury to his child, but the parental immunity doctrine does not protect a parent for liability for an intentional or willful injury to his child.

Id. at 426, 720 S.W.2d at 300. Justice George Rose Smith concurred in Carpenter. He first stated that the Restatement (Second) of Torts, § 895G, rejects the parental-immunity doctrine and then said that “[t]he doctrine of parental immunity still governs in Arkansas negligence law, but it takes little prophetic ability to realize that the doctrine’s life expectancy is short.” Id. at 426-27, 720 S.W.2d at 300 (Smith, J., concurring). Justice Smith, in predicting the eventual downfall of the doctrine, was careful to state his reservation that the doctrine should not be completely abolished, and that in situations where there would be an analogy to the assumption of the risk — for common hazards that all families face and create for each other — parents would not be liable. Id. at 427, 720 S.W.2d at 301 (Smith, J., concurring).

In 1996, this court again declined to create an exception to the parental-immunity doctrine for negligent conduct. Robinson v. Robinson, 323 Ark. 224, 914 S.W.2d 292 (1996). In Robinson, a daughter sued her mother for negligently fading to prevent her father from sexual abusing her as a child. Id. at 227, 914 S.W.2d at 293. We bowed to precedent and acknowledged that the parental-immunity doctrine should not apply to voluntary torts, such as the tort for sexual abuse against her father, but should apply to involuntary torts such as the negligence of her mother. We said: “[t]he parental-immunity doctrine is the law in this jurisdiction,” and held that “the doctrine is applicable . . . where, although appellee had attained her legal age when this action was commenced, she was an unemancipated minor at the time of the alleged tort.” Id. at 227, 914 S.W.2d at 294.

In examining the current status of the parental-immunity doctrine in our sister states, we find that nine states, including Arkansas, continue to apply parental immunity to cases where automobile liability insurance coverage represents the source of funds for recovery. See La. Rev. Stat. § 9:571 (West 1997); Renko v. Renko, 346 Md. 464, 697 A.2d 468 (1997); Terror Mining Co. v. Roter, 866 P.2d 929 (Colo. 1994); Mitchell v. Davis, 598 So.2d 801 (Ala. 1992); Mohorn v. Ross, 205 Ga. App. 443, 422 S.E.2d 290 (1992); Robinson v. Robinson, 323 Ark. 224, 914 S.W.2d 292 (1990); Vaughn v. Vaughn, 161 Ind. App. 497, 316 N.E.2d 455 (1974); Campbell v. Gruttemeyer, 432 S.W.2d 894 (Tenn. 1968); Pullen v. Novak, 169 Neb. 211, 99 N.W.2d 16 (1959).

However, eleven states have abrogated the doctrine altogether. See Broadbent v. Broadbent, 184 Ariz. 74, 907 P.2d 43 (1995); Hartman v. Hartman, 821 S.W.2d 852 (Mo. 1991); Kirchner v. Crystal, 15 Ohio St. 3d 326, 474 N.E.2d 275 (1984); Winn v. Gilroy, 296 Or. 718, 681 P.2d 776 (1984); Guess v. Gulf Ins. Co., 96 N.M. 27, 627 P.2d 869 (1981); Anderson v. Stream, 295 N.W.2d 595 (Minn. 1980); Elam v. Elam, 275 S.C. 132, 268 S.E.2d 109 (1980); Holodook v. Spencer, 36 N.Y.2d 35, 324 N.E.2d 338, 364 N.Y.S.2d 859 (1974); Gibson v. Gibson, 3 Cal.3d 914, 479 P.2d 648 (1971); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971); Nuelle v. Wells, 154 N.W.2d 364 (N.D. 1967).

In four states and the District of Columbia, the doctrine was never adopted. See Rousey v. Rousey, 528 A.2d 416 (D.C. 1987); Elkington v. Foust, 618 P.2d 37 (Utah 1980); Wood v. Wood, 135 Vt. 119, 370 A.2d 191 (1977); Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974); Petersen v. City and County of Honolulu, 51 Haw. 484, 462 P.2d 1007 (1969). In South Dakota, adoption of the doctrine has never been addressed, while in Idaho, adoption of the doctrine is unclear. See Pedigo v. Rowley, 101 Idaho 201, 610 P.2d 560 (1980).

Twenty-one states have abrogated the doctrine for the negligent operation of a motor vehicle where liability insurance is involved. Conn. Gen. Stat. § 52-572c (1985); N.C. Stat. Ann. § 1-539.21 (1983); Glaskox v. Glaskox, 614 So.2d 906 (Miss. 1992); Wright v. Wright, 134 Mich. App. 800, 351 N.W.2d 868 (1984); Uhan By & Through Unah v. Martin, 676 P.2d 1366 (Okla. 1984); Transamerica Ins. Co. v. Royle, 202 Mont. 173, 656 P.2d 820 (1983); Foldi v. Jeffries, 93 N.J. 533, 461 A.2d 1145 (1983); Allstate Ins. Co. v. Wyoming Dept. of Ins., 672 P.2d 810 (Wy. 1983); Ard v. Ard., 414 So.2d 1066 (Fla. 1982); Larson v. Buschkamp, 105 Ill. App.3d 965, 435 N.E.2d 221 (R.I. 1982); Silva v. Silva, 446 A.2d 1013 (1982); Turner v. Turner, 304 N.W.2d 786 (Iowa 1981); Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980); Merrick v. Sutterlin, 93 Wash.2d 411, 610 P.2d 891 (1980); Black v. Solmitz, 409 A.2d 634 (Me. 1979); Williams v. Williams, 369 A.2d 669 (Del. 1976); Lee v. Comer, 159 W.Va. 585, 224 S.E.2d 721 (1976); Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907 (1975); Wright v. Wright, 213 Va. 177, 191 S.E.2d 223 (1972); Hebel v. Hebel, 435 P.2d 8, (Alaska 1967); Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966).

Three remaining states espouse other tests for deciding liability where automobile negligence is involved. See Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex. 1971); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky. 1970); Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963).

We have now determined that we will join the majority of states in declining to enforce the parental-immunity doctrine where the source of recovery is uninsured motorist benefits under a motor vehicle liability insurance policy. In addressing the policy reasons that long have supported our adherence to parental immunity since the Rambo decision in 1938, we first see no damage to the family unit where the insurance company is the true adversary. On this point we are persuaded by the reasoning of the Delaware Supreme Court:

For these reasons, we are in agreement with the growing number of courts which have reached the following conclusion: when liability insurance exists, the domestic tranquility argument is, at best, hollow. Liability insurance impersonalizes the suit and negates the possible disruption of family harmony by easing the financial repercussions of the accident. In short, when insurance is involved, the action between parent and child is not truly adversary; both parties seek recovery from the insurance carrier to create a fund for the child’s medical care and support without depleting the family’s other assets.

Williams, 369 A.2d at 672 (quoting Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907, 914 (Mass. Supr. 1975)). We can readily understand how an action against a liability insurance carrier might ease the financial crunch caused by an car accident rather than becoming a source of family disharmony. See Ard v. Ard, 414 So. 2d 1066 (Fla. 1982).

Moreover, the potential for fraud and collusion on the part of parent and child against the insurance company seems no more a factor in this case than in any case where a parent claims benefits against a carrier on behalf of an injured child. See Ard v. Ard, supra. Plus, there are the protections against fraud and collusion which are endemic in all litigation:

Furthermore, it should not be overlooked that the testimony of both parties will be extremely vulnerable to impeachment at trial on the grounds of bias, interest and prejudice. The trial court’s responsibility, indeed, its duty, to properly instruct the jury on the credibility of witnesses and the rules governing the weight of evidence will remain unchanged, and, as was stated in United States v. Freeman, (2d Cir. 1966), 357 F.2d 606, 620, “. . . it cannot be presumed that juries will check their common sense at the courtroom door.”

Brooks v. Robinson, 259 Ind. 16, 22, 284 N.E.2d 794, 797 (1972). We are convinced that the judicial process and investigation by the carrier itself will stem the potential for abuse. See also Transamerica Ins. Co. v. Royle, 202 Mont. 173, 656 P.2d 820 (1983).

Finally, the fact that criminal laws provide penalties for child abuse seems largely irrelevant as a justification for the doctrine, since Arkansas has already qualified the parental-immunity rule and excepted intentional torts by a parent. In sum, we are not convinced that the traditional policy reasons sustaining parental immunity are persuasive when the party with the true economic interest at stake is the liability carrier. Moreover, the argument by Southern Farm that the carrier on ,a subrogation claim may ultimately go against the parent to collect benefits paid and that this would pit the child victim against the parent raises a contingency not at issue in the case before us. In any event, we do not consider it to be a persuasive reason for us not to adopt the exception requested.

Southern Farm argues stare decisis as a reason to adhere to precedent and our existing common law. But as we have often said: “The proper limitations on the doctrine of stare decisis have ever been recognized by this court. ‘Precedent, it is said, should not implicitly govern, but discretely guide . . . .’” Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968) (quoting Roane v. Hinton, 6 Ark. 525, 527 (1846)). Thus, we have made it clear that we will not blindly follow precedent where that precedent no longer gives a just result. Such is the situation in the case before us.

Southern Farm also maintains that changing the parental-immunity doctrine in any fashion is a matter for the General Assembly. Not so. The doctrine is judicially created in this state, as has already been reviewed in this opinion, and has never been the subject of legislative act. Separation of powers is simply not an appropriate argument against limiting the doctrine.

As a result, we are convinced that another exception to the parental-immunity doctrine is warranted when a direct-action suit against a motor vehicle liability insurance carrier for uninsured motorist coverage is at issue and when insurance benefits are the damages requested. The exception that we carve out by this opinion is limited to those circumstances. In all other matters, where exceptions have not been made in our case law, we retain the doctrine.

II. Prospective Application

Southern Farm next contends that if this court does formulate an exception to the parental-immunity doctrine, based on motor vehicle liability coverage, it do so prospectively and not for purposes of the instant case. Southern Farm argues that it had the right to rely on the current state of the law as it existed at the time of the accident in 1997 and that “fundamental fairness” mandates that any change in the parental-immunity doctrine not be applied to this case. In making its argument, Southern Farm cites this court to cases involving a rule of law in making contracts or a rule of law in property when the parties rely on that rule in their dealings. For example, Southern Farm directs our attention to a case where this court changed a rule of law relating to misrepresentation in the issuance of insurance contracts but decided not to apply its holding to the case before it, saying, “[w]e do not know that the parties relied on our old rule in making their contract, but we must assume they did and not apply this decision retroactively.” Southern Farm Bureau Ins. Co. v. Cowger, 295 Ark. 250, 256, 748 S.W.2d 332, 336 (1988). Likewise, Southern Farm argues that in a 1952 case, we declined to apply the holding to the matter before us, stating that “the parties dealt on the strength of [our prior] holdings, which have become a rule of property, and we must not overrule these cases retroactively. Therefore, insofar as the case at bar is concerned, it must be affirmed on the strength of our prior holdings.” Hare v. General Contract Purchase Corp., 220 Ark. 601, 606-607, 249 S.W.2d 973, 977 (1952).

Fields observes, however, that this court in Spears v. Spears, supra, announced that it intended to reexamine the parental-immunity doctrine at the next available opportunity. This court has used the technique of announcing a caveat in the past to alert the bench and bar that a reexamination of the common law may be in order. For example, in the Hare case cited above, this court announced a caveat and said “the time has come when we must re-examine these holdings, so we will now give the public a caveat that the holdings in that case were under review.” Hare, 220 Ark. at 607, 249 S.W.2d at 977. See also Robinson v. Means 192 Ark. 816, 95 S.W.2d 98 (1936). Even with the caveat in Spears, we are mindful that the accident in the instant case occurred in 1997, and our caveat in the Spears decision was not issued until 1999.

Regardless of the timing of our caveat in Spears, this court has held that a party who successfully prevails in overturning precedent should be rewarded for that party’s industry, expense, and effort. See Aka v. Jefferson Hosp. Assoc., 344 Ark. 627, 42 S.W.3d 508 (2001); Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997). We added in Aka that otherwise there would be no incentive for a litigant to attack existing precedent, no matter how doubtful or unsound that precedent might be. We therefore applied our opinion retroactively to the Aka case but prospectively with regard to all causes of action arising after the opinion became final. Aka, 344 Ark. at 643, 42 S.W.3d at 519.

■ That Aka reasoning appears appropriate for the case at hand. We hold that the automobile liability insurance exception identified by this opinion applies to the instant case. With respect to all other causes of action, this opinion applies only if the cause ,of action arises after this opinion becomes final.

We reverse and remand this case for further proceedings not inconsistent with this opinion.

Reversed and remanded.

       The doctrine of parental immunity originated with the 1891 Mississippi Supreme court decision of Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891) {overruled by Glaskox v. Glaskox, 614 So. 2d 906 (Miss. 1992)). In Hewlett, a daughter brought suit against her mother for false imprisonment, alleging that she had been confined without cause to a mental hospital for eleven days. Hewlett, 68 Miss. at 711, 9 So. at 887. The court, without citing to legal authority, created the rule and announced the policy underlying it:
      [S]o long as the parent is under obligation to care for, guide, and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained. The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrong-doing, and this is all the child can be heard to demand.

        Id.

       Consistent with-Rumbo, this court in Robinson permitted the plaintiffs suit against her father for “willful, intentional, and malicious acts” of childhood sexual abuse to go forward m a new trial. See Robinson, 323 Ark. 224, 914 S.W.2d 292 (1996).


source: Caselaw Access Project

license: Public Domain

text:
    Dyrea MOSBY v. STATE of Arkansas
    CR 01-784
    85 S.W.3d 500
    Supreme Court of Arkansas
    Opinion delivered September 19, 2002

      Christopher W. Hays, for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellant.
   Robert L. Brown, Justice.

Appellant Dyrea Mosby appeals his judgment of conviction for capital murder and his sentence of life in prison without parole. He raises two points on appeal which concern whether five photographs introduced by the State were more prejudicial than probative and whether four of those photographs were cumulative. We hold that the trial court did not abuse its discretion in admitting the photographs into evidence, and we affirm.

Between 7:40 a.m. and 8:00 a.m. on August 13, 1999, Officers Michael Donigan and Thomas Wooten, who at that time worked for the Dumas Police Department, were dispatched to the home of Curtis “Cleotis” Binns in Dumas because of a shooting. When they arrived at the home, they found Mosby, who was Binns’s stepson, standing in the carport. Mosby told the police officers that someone had shot his stepdad, but he did not know who did it. At that time, his mother, Mary Binns, came out of the house and said: “No, you shot him.” Later, at trial, Mrs. Binns testified that she saw Mosby shoot her husband. Inside the house, Binns was found lying on the bedroom floor with multiple gunshot wounds.

Mosby was then placed under arrest by Officer Donigan. In a burn barrel behind the house, a .38 caliber Titan pistol was found by investigating police officers. Three bullets recovered from the victim were later found to have been fired by that pistol. Binns was transferred to the emergency room of the hospital where the deputy coroner, Jody Wilkins, pronounced him dead. On that same date, August 13, 1999, an autopsy was performed by Dr. William Sturner, Chief Medical Examiner for the State, at the State Crime Lab. Dr. Sturner found five gunshot wounds: one to the hand, two to the head, and two to the trunk area. Dr. Sturner also opined that the bullet passing through Binns’s heart and lungs was fatal and the bullet passing through the brain was also fatal.

Mosby was charged with capital murder and felon-in-possession-of-a-firearm. At the ensuing trial, the State moved to introduce seventeen photographs into evidence, five of which are at issue on appeal. Mosby objected to State’s Exhibit Six as inflammatory and State’s Exhibits Ten, Fifteen, Sixteen, and Seventeen as cumulative and prejudicial. The trial court denied the objections. There were a total of sixteen photographs admitted into evidence. The trial court gave the prosecutor the option of introducing either State’s Exhibit Nine or Ten. The prosecutor chose to introduce State’s Exhibit Ten and withdraw State’s Exhibit Nine. The following is a list of the photographs admitted into evidence and their subjects:

(1) . State’s Exhibit One: An autopsy photograph of Binns’s face.
(2) . State’s Exhibit Two: An autopsy photograph of Binns from the waist up.
(3) . State’s Exhibit Three: An autopsy photograph showing a closeup of the hand wound.
(4) . State’s Exhibit Four: Another autopsy photograph showing a closeup of the hand wound from a different angle.
(5) . State’s Exhibit Five: The bullets recovered from Binns’s scalp and brain.
(6) . State’s Exhibit Six: An autopsy photograph showing a cross section of Binns’s brain.
(7) . State’s Exhibit Seven: A photograph of the front of the Binns residence.
(8) . State’s Exhibit Eight: A crime scene photograph showing the bedroom where Binns was killed.
(9) . State’s Exhibit Nine: Withdrawn by the prosecutor.
(10) . State’s Exhibit Ten: A photograph of the same bedroom, taken from a different angle and with a closer view of the blood resulting from the head wound.
(11) . State’s Exhibit Eleven: A photograph of a bullet lying on the floor of Binns’s bedroom.
(12) . State’s Exhibit Twelve: A photograph of another bullet lying on the floor in Binns’s closet.
(13) . State’s Exhibit Thirteen: A closeup of the bullet in the closet.
(14) . State’s Exhibit Fourteen: A photograph of the backyard of the Binns residence. The photograph shows the burn barrel where police officers found the murder weapon.
(15) . State’s Exhibit Fifteen: A photograph taken at the emergency room showing the right side of Binns’s body and the head wound just after he was pronounced dead.
(16) . State’s Exhibit Sixteen: An emergency room photograph showing the left side of Binns’s body, the wound to his left arm, and a bagged hand.
(17) . State’s Exhibit Seventeen: A closeup ofBinns’s head taken at the emergency room.

Mosby was convicted of capital murder and sentenced to life without parole.

Mosby first contends that the photographs marked Exhibits Six, Ten, Fifteen, Sixteen, and Seventeen were inflammatory and more prejudicial than probative and that State’s Exhibits Ten, Fifteen, Sixteen, and Seventeen were also cumulative. The controlling Rule of Evidence which he relies on is Rule 403, which states that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ark. R. Evid. 403. The admissibility of photographs lies in the sound discretion of the trial judge and will not be reversed absent an abuse of discretion. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002); Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001). We, therefore, examine the issues on appeal using an abuse-of-discretion standard.

Last year, this court summarized the law regarding admissibility of photographs:

When photographs are helpful to explain testimony, they are ordinarily admissible. Further, the mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Other acceptable purposes are to show the condition of the victims’ bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Absent an abuse of discretion, this court will not reverse a trial court for admitting photographs into evidence.

Barnes, 346 Ark. at 105, 55 S.W.3d at 281 (citations omitted). See also Davis v. State, supra. The trial court, accordingly, must exercise some discretion in its decisionmaking regarding the admissibility of State photographs. Stated differently, the trial court cannot simply give carte blanche to the admission of any and all photographs of the crime scene and victim offered by the prosecutor, as that would be a failure to exercise discretion. See Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). In Berry, the trial court exercised no discretion and received all offered photographs into evidence, including graphic and repetitive photographs. In doing so, the court failed to perform a Rule 403 analysis of whether the photographs were more probative than prejudicial. See id. For that reason, we reversed the judgment of conviction.

In the instant case, Mosby claims that State’s Exhibit Six, showing a cross-section of Binns’s brain, was unfairly inflammatory and prejudicial, because seeing a photograph of a human brain could easily cause a reasonable person to resort to a verdict based on emotion. We disagree because we conclude that State’s Exhibit Six could assist the trier of fact. The photograph was introduced to corroborate Dr. Sturner’s testimony about the path of the bullet through Binns’s brain and the fact that the wound contained necrotic tissue. Dr. Sturner further testified that Exhibit Six shows the bullet or bullet fragment as well as a white arrow pointing to the necrosis resulting from the wound. We conclude that the photograph, in corroborating the medical examiner’s testimony, was more probative than prejudicial.

The same holds true for State’s Exhibit Ten, which is a photograph, according to Officer Donigan, showing blood on the bedroom floor from Binns’s head wounds as well as “human debris” sprayed on the wall. This photograph shows the crime scene at close range where the body fell and from a different angle. It also confirms Officer Donigan’s testimony about the position of the body and the testimony of Mary Binns and Latara, her daughter, all of whom stated that they saw Binns’s body lying on the floor of his bedroom. As for the objection that this photograph is cumulative, each of the submitted photographs shows the crime scene from a different perspective, and new details of the room, blood, and body are visible in each photograph. Again, we hold that the trial court did not abuse its discretion in receiving this photograph into evidence.

The three photographs that show Binns’s body in the emergency room (State’s Exhibits Fifteen, Sixteen, and Seventeen) also corroborate Officer Donigan’s testimony. He testified that he recorded his observations in the emergency room of the hospital by camera. The photographs show different angles of Binns’s body close in time to the shooting and before the body underwent an autopsy. State’s Exhibit Fifteen shows the right side of Binns’s body and a head wound. State’s Exhibit Sixteen shows the left side of Binns’s body, a wound to his left arm caused by a bullet passing through his chest, and his bagged hand. State’s Exhibit Seventeen is a closeup photograph oí Binn’s head wound. We cannot say that these photographs were not helpful to the jury in understanding Binns’s condition after the multiple gunshots. Accordingly, we agree with the trial court that these photographs were also more probative than prejudicial.

Unlike the situation that occurred in Berry, in the case at bar, the trial court did not agree to a carte blanche introduction of all state photographs without a Rule 403 analysis. Rather, the court exercised its discretion and in one case advised the prosecutor to choose between two photographs that appeared to be similar. The prosecutor withdrew one of those photgraphs.

We hold, then, that gruesome though the challenged photographs may have been and arguably cumulative in some instances, they were reviewed by the trial, court and served to assist the trier of fact in understanding the testimony. For those reasons, their introduction into evidence did not constitute an abuse of discretion on the part of the trial court.

A review of the record has been conducted in accordance with Arkansas Supreme Court Rule 4-3 (h), and no reversible error has been found.

Affirmed.

       Officer Wooten was working for the Springdale Police Department at the time of the trial.


author: Annabelle Clinton Imber, Justice.

text:
    Peggy GULLEDGE; Kenneth Harrison v. Dick BARCLAY, in His Official Capacity as Director of the Arkansas Department of Finance and Administration; Tim Leathers, in His Official Capacity as Revenue Commissioner and Deputy Director of the Department of Finance and Administration; Jimmie Lou Fisher, in Her Official Capacity as Arkansas State Treasurer; Mike Huckabee, in His Official Capacity as Governor of the State of Arkansas
    02-88
    84 S.W.3d 850
    Supreme Court of Arkansas
    Opinion delivered September 19, 2002
    [Petition for rehearing denied October 24, 2002.]

      Oscar Stilley, for appellants.

      Mark Pryor, Att’y Gen., by: Mark Hagemeier, Ass’t Att’y Gen., for appellees Fisher and Huckabee.

      Beth B. Carson, Revenue Legal Counsel, for appellee Barclay.
   Annabelle Clinton Imber, Justice.

On December 15, 2000, the General Assembly convened in extraordinary session at the call of the Governor to address a single issue, the need for a one-half percent sales and use tax increase. The General Assembly acted expeditiously and passed Act 1 of the Second Extraordinary Session of 1999 (Act l). On December 17, 2000, the Governor signed Act 1, and the General Assembly adjourned. Appellants Peggy Gulledge and Kenneth Harrison, acting on their own behalf and on the behalf of other taxpayers similarly situated, initiated this action challenging the constitutionality of Act 1, and now raise two issues on appeal: (1) whether the emergency clause of Act 1 is valid under Amendment 7 to the Arkansas Constitution; and (2) whether a bill introduced in a three-day extraordinary session of the General Assembly is unconstitutional under Article 5, § 34, of the Arkansas Constitution. The circuit court upheld the constitutionality of Act 1. We affirm.

The facts are not controverted. Act 1492 of 1999 provided for a one-half percent sales and use tax increase conditioned upon the future passage of a proposed amendment to the Arkansas Constitution that would grant a $300 property tax credit. *The validity of the proposed amendment’s ballot title was challenged and found constitutional by this court in Thiel v. Priest, 342 Ark. 292, 28 S.W.3d 296 (2000). In dicta, this court opined that conditioning a tax increase upon the approval of a constitutional amendment raised serious legal questions that could not be addressed because the issues were not before the court. Id. Purportedly in response to this court’s opinion, the Governor called an extraordinary session of the General Assembly that convened on December 15, 2000 and adjourned on December 17, 2000 — a three-day session. During that session, the General Assembly passed Act 1, which repealed the statutes concerning property tax refunds and imposed a one-half percent sales and use tax increase. Act 1 included an emergency clause so that it would go into effect on January 1, 2001.

Appellants filed suit challenging the constitutionality of Act 1 and named several state officials as defendants. All parties to the action moved for summary judgment, and the circuit court granted summary judgment in favor of appellees. The circuit court ruled that the emergency clause was valid under this court’s holding in Jumper v. McCollum, 179 Ark. 837, 18 S.W.2d 359 (1929). The circuit court found that the emergency clause presented numerous facts. Even though fair-minded and reasonable persons might differ as to the sufficiency and truth of the facts, they were sufficient to meet the highly deferential standard under which the judiciary reviews legislative emergency clauses. Id. Second, the circuit court, relying upon this court’s decision in Spa Kennel Club v. Dunaway, 241 Ark. 51, 406 S.W.2d 128 (1966), ruled that Act 1 was not in violation of Ark. Const., art. 5, § 34, because “this constitutional provision prohibiting bills from being filed during the last three days of a legislative session does not apply to any bills filed during an extraordinary session called by the Governor pursuant to his constitutional authority under Article 6, § 19.” The instant appeal arises from the circuit court’s grant of appellees’ motion for summary judgment.

Summary judgment is appropriate where no genuine issues of material fact remain to be litigated. City of Lowell v. City of Rogers, 345 Ark. 33, 43 S.W.3d 742 (2001). In cases such as the instant case, in which the facts are not in controversy, a fact issue may still exist if the facts “may result in differing conclusions as to whether the moving party is entitled to judgment as a matter of law . . . .” Id. at 39, 43 S.W.3d at 745-46. Every act carries with it a strong presumption of constitutionality, and all doubts are resolved in favor of the act’s constitutionality. State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999). The burden of proof lies on the challenging party, and the statute will not be struck down unless it conflicts with the constitution clearly and unmistakably. Id.

I. The Emergency Clause

Appellants first challenge the constitutionality of Act 1 by contending that the emergency clause fails to state facts constituting an emergency. The requirements for an emergency clause are stated in Amendment 7 to the Arkansas Constitution.

If it shall be necessary for the preservation of the public peace, health and safety that a measure shall become effective without delay, such necessity shall be stated in one section, and if upon a yea and nay vote two-thirds of all the members elected to each house . . . shall vote upon separate roll call in favor of the measure going into immediate operation, such emergency measure shall become effective without delay. It shall be necessary, however, to state the fact which constitutes such emergency.

Ark. Const, amend. 7. The test for the validity of an emergency clause was established by this court in 1929: “If the fact which constitutes the emergency is recited, and if fair-minded and intelligent men might reasonably differ as to the sufficiency and truth of the fact assigned for placing the act in effect immediately upon its passage, the courts are concluded by the finding.” Jumper v. McCollum, 179 Ark. 837, 840,18 S.W.2d 359, 361 (1929) (emphasis added). We give great deference to a legislative determination of whether an emergency exists. ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997). However, the question of whether the General Assembly states facts constituting an emergency is subject to judicial review, and a statement of a mere administrative or factual truism is not sufficient. Burroughs v. Ingram, 319 Ark. 530, 893 S.W.2d 319 (1995). This court has noted that the test is similar to the substantial-evidence standard applied when reviewing a jury’s verdict. Cunningham v. Walker, 198 Ark. 928, 132 S.W.2d 24 (1939); Burroughs v. Ingram, supra.

Recently, we considered the requirements for an emergency clause and reaffirmed the test established in Jumper v. McCollum, supra. Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995). This court upheld an emergency clause that stated the immediate need for a constitutional convention to correct archaic and obsolete portions of the Arkansas Constitution. Id. The appellees in Priest v. Polk had successfully argued to the trial court that rewriting the constitution did not constitute an emergency. Id. Applying a test that an emergency was “some sudden or unexpected happening,” the trial court agreed with the appellees. Id. We reversed, noting that the trial court had applied the wrong test. Id. Even though everyone may not agree that the need for a new constitution constituted a “real emergency,” that was not the test; rather, “[t]he test is whether reasonable people might disagree as to whether an emergency is stated.” Id at 683, 912 S.W.2d at 908.

The question in the instant case is whether the General Assembly has stated facts constituting an emergency upon which reasonable minds might disagree, or merely administrative and factual truisms. Section 11 of Act 1 included the following emergency clause:

It is found and determined by the General Assembly of the State of Arkansas that Amendment 79 to the Arkansas Constitution requires the General Assembly to provide for a property tax credit of not less than $300 for each homestead; that providing such a property tax credit results in a significant reduction in revenues for funding county services and public schools; that without an alternative source of funding counties and public schools cannot operate effectively; that an increase in the state sales and use tax provides a source of funding for counties and public schools; that this act will accomplish the purposes of Amendment 79 in providing a property tax credit and source of funding. It is necessary that this act become effective immediately in order to facilitate the administration of the property tax credit and to generate sufficient revenues to fully fund the credit. Therefore, an emergency is declared to exist and Sections 1, 2, 3, 4, 5, 6, 8 and 9 of this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.

A summary reading of this emergency clause discloses the recitation of the following statements of fact:

• Amendment 79 provides a $300 property tax credit.
• The credit will result in a “significant reduction in revenues for funding county services and public schools.”
• “[W]ithout an alternative source of funding counties and public schools cannot operate effectively.”
• An increase in sales and use tax will provide additional funding to counties and public schools.
• The act provides for both the property tax credit and an alternate source of funding.
• Immediate effect is needed to facilitate the administration of property tax credits and to generate sufficient revenues to fully fund the credit.

In their initial argument on this point, appellants characterize these statements as “either academic statements of material fact, demonstrably false, plainly not sufficient to constitute an emergency in the mind of any reasonable person or some combination thereof.” They then proceed to suggest three different reasons why the emergency clause fails to state facts constituting an emergency.

First, appellants contend that Act 1 and Act 1492 of 1999 were substantively identical laws and, therefore, the real purpose of Act 1 was an attempt to replace Act 1492 because this court in Thiel v. Priest had suggested in dicta that “there [were] serious questions surrounding Amendment [79] and its so-called enabling legislation [Act 1492] . . . Thiel v. Priest, 342 Ark. at 302, 28 S.W.3d at 301. Appellants also argue that because Act 1 and Act 1492 are identical, there could be no emergency requiring that Act 1 become immediately effective. Appellees, however, point out several differences in the provisions of the two acts. This is nothing more that an example of reasonable minds disagreeing as to the truth and sufficiency of the facts recited in the emergency clause. ACW, Inc. v. Weiss, supra.

Next, appellants contend that the General Assembly could have acted in October of 2000 and avoided the need for the emergency clause. Contrary to appellants’ suggestion, the General Assembly could not have acted in October because the call of an extraordinary session is solely at the discretion of the Governor, not the General Assembly. Ark. Const, art. 6, § 19; Priest v Polk, supra. Moreover, the decision to call an extraordinary session is not subject to judicial review. Spa Kennel Club, Inc. v. Dunaway, supra.

Finally, appellants assert that Act 1 did not need to go into effect on January 1, 2001, to generate sufficient funds. Appellees respond by describing the timing and process involved in the collection and disbursement of sales and use tax revenues, and conclude that it was necessary for Act 1 to take effect on January 1, 2001, in order to assure adequate and timely funding for the counties and schools. Both sides make reasonable arguments based on the facts recited in the emergency clause. As previously stated, we give great deference to the General Assembly’s determination that an emergency clause was necessary, and we must uphold its validity if reasonable persons might disagree as to the sufficiency and truth of the facts stated. ACW, Inc. v. Weiss, supra. Accordingly, we conclude that reasonable people might disagree about whether the facts enunciated in Act l’s emergency clause state an emergency. We therefore uphold the validity of the emergency clause under Amendment 7 and affirm the circuit court’s grant of summary judgment on this issue.

II. Arkansas Constitution, Article 5, § 34.

For their last point on appeal, appellants argue that because the Second Extraordinary Session of 1999 lasted only three days, Act 1 was unconstitutionally introduced in violation of Article 5, § 34, of the Arkansas Constitution that provides: “No new bill shall be introduced into either house during the last three days of the session.” Ark. Const., art. 5 § 34. Appellants further contend that Act 1 does not fall within any exception recognized by this court because the act did not constitute a real emergency.

Article 6, section 19, of the Arkansas Constitution provides:

The Governor may, by proclamation, on extraordinary-occasions convene the General Assembly . . . and he shall specify in his proclamation the purpose for which they are convened, and no other business than that set forth therein shall be transacted until the same shall have been disposed of, after which they may, by a vote of two-thirds of all the members elected to both houses, entered upon their journals, remain in session not exceeding fifteen days.

Ark. Const., art. 6, § 19. We have explained that Article 6, § 19, “authorizes the governor to summon the general assembly into extraordinary session when in his judgment an emergency exists requiring same.” Spa Kennel Club, Inc. v. Dunaway, 241 Ark. 51, 56, 406 S.W.2d 128, 131 (1966). While the laws passed in an extraordinary session are reviewable by the courts, the action of the Governor in calling the session is not. Id. This court has recognized that there are two distinct types of legislative sessions — regular sessions under Article 5, Legislative Department, and extraordinary sessions under Article 6, Executive Department. Purcell v. Jones, 242 Ark. 168, 412 S.W.2d 284 (1967). Regular sessions meet every two years for a time not to exceed sixty days unless extended by the General Assembly. Ark. Const, art. 5, §§ 5, 17. Extraordinary sessions meet only at the call of the Governor, and after completion of the Governor’s business, an extraordinary session may not be extended except by two-thirds vote of each house and then the extension may not exceed of fifteen days. Ark. Const, art. 6, § 19. The constitution does not establish a minimum amount of time that an extraordinary session must last.

In Spa Kennel Club, Inc. v. Dunaway, 241 Ark. 51, 406 S.W.2d 128 (1966), the appellants challenged the constitutionality of an act introduced within the last three days of an extraordinary session. Id. They argued, as do the appellants here, that the bill’s introduction was in violation of Article 5, § 34’s prohibition against introducing bills within the last three days of a legislative session. Id. This court noted that extraordinary sessions are not included in Article 5 of the Arkansas Constitution under the heading “Legislative Department,” but are placed in Article 6 under the heading of “Executive Department,” and are within the control of the Governor. Id. We declined in Spa Kennel Club to apply the time limitation referred to in Article 5, § 34, to bills introduced during extraordinary sessions of the General Assembly. Id.

In the instant case, appellants make two arguments in support of their contention that Article 5, § 34, makes any law enacted in a three-day (or less) extraordinary session unconstitutional. Both arguments, however, are based on the assumption that an exception to Article 5, § 34, must be established. Furthermore, appellants suggest that our opinion in Spa Kennel Club sets out “two bases for excluding an act from the operation of Article 5, § 34. The first is for an emergency. The second is for acts that are not legislative in nature.”

As to the first alleged “exception,” appellants read too much into our opinion in Spa Kennel Club in concluding that the General Assembly must prove that some “real emergency” exists in order to create an exception to Article 5, § 34. The phrase “such emergency legislation” used in Spa Kennel Club clearly refers to legislation enacted during an extraordinary session — a session called by the Governor to deal with an “emergency” situation, i.e., one that cannot wait until the next regular session. Whether an emergency exists requiring an extraordinary session is a decision made by the Governor and not subject to judicial review. Spa Kennel Club, Inc. v. Dunaway, supra.

Likewise, appellants draw a mistaken conclusion when they extrapolate “an executive action” exception from our decision in Spa Kennel Club. This court’s comments in that case concerning the executive branch related solely to the calling of an extraordinary session under Article 6, § 19, rather than Article 5, §§ 5, 17. Spa Kennel Club, Inc. v. Dunaway, supra. Even though the General Assembly meets in extraordinary session as a result of an executive action, all laws enacted by the General Assembly are, by definition, legislative actions, whether enacted during a regular session or an extraordinary session. Appellant simply misconstrues our holding in Spa Kennel Club.

Article 6, section 19, empowers the Governor to call an extraordinary session and mandates that the General Assembly may only stay in session after disposing of the Governor’s business upon a two-thirds vote of the General Assembly, and then for no more than fifteen days. In Spa Kennel Club, we found no merit in the argument that a bill introduced within the last three days of an extraordinary session was unconstitutional under Article 5, § 34. Spa Kennel Club, Inc. v. Dunaway, supra. Under appellants’ suggested interpretation, the General Assembly would have to stay in session, at the taxpayer’s expense, for at least four days, even if the Governor’s business could be finished in one day. Based on appellants’ reasoning, we would be rewriting Article 6, § 19, of the Arkansas Constitution to require that an extraordinary session last at least four days. This we will not do.

Affirmed.

       Act 1 is also referenced as: 2000 Acts 1 (2nd Ex. Sess.)

       On motion of appellants5 counsel, one of the original plaintiffs, Jim Wilson, Jr., was dismissed from the appeal.

       The proposed amendment, now Amendment 79 to the Arkansas Constitution, was approved by the voters at the November 2000 general election.

       Appellees Dick Barclay, in his official capacity as Director of the Arkansas Department of Finance and Administration, Tim Leathers, in his official capacity as Revenue Commissioner and Deputy Director of the Department of Finance and Administration, Jimmie Lou Fisher, in her official capacity as Arkansas State Treasurer, and Mike Huckabee, in his official capacity as Governor of the State of Arkansas.


author: Per Curiam.

text:
    Michael Jay VENIS v. STATE of Arkansas
    CR 02-920
    84 S.W.3d 867
    Supreme Court of Arkansas
    Opinion delivered September 19, 2002

      Jay Saxton, Chief Public Defender, for appellant.
    No response.
   Per Curiam.

Appellant Michael Jay Venis, by and through the Benton County Public Defender’s Office, has filed a motion for belated appeal from his convictions of manufacturing a controlled substance (methamphetamine) and possession of pseudoephedrine with intent to manufacture methamphetamine in the Benton County Circuit Court, Division I. The motion reflects that Appellant was represented at trial by privately retained counsel John Gross. The jury trial was held on March 21, 2002. Following his convictions, Appellant retained attorney Eric Flagler for the purpose of pursuing a motion for new trial based on ineffective assistance of counsel. A hearing was held in the circuit court, after which the motion for new trial was denied. Thereafter, on April 30, 2002, the trial court sentenced Appellant to twenty-five years’ imprisonment on the manufacturing charge and six years’ imprisonment on the possession charge. The judgment'and commitment order was filed on June 7, 2002.

In the meantime, the Benton County Public Defender was appointed to represent Appellant in another criminal matter in Division II of the Benton'County Circuit Court. Through its representation of Appellant, the public defender’s office had several discussions with Mr. Gross regarding his participation in Appellant’s appeal from his convictions in Division I. According to the motion, Mr. Gross had never been relieved as attorney of record in the Division I case.

An affidavit filed by Chief Deputy Public Defender Kristin Pawlik reflects that she discussed the matter with Mr. Gross, verbally and through written correspondence. According to her affidavit, she spoke with Mr. Gross on May 9, 2002, prior to the date that the judgment was entered, and that he had assured her that he was monitoring Appellant’s case and filings for the purpose of appeal and that, despite his concern that a conflict may have arisen between himself and Appellant during the hearing on the motion for new trial, he would take steps to ensure that the notice of appeal was filed. On July 31, 2002, Ms. Pawlik wrote a letter to Mr. Gross stating that Appellant’s family had been in contact with her office about the status of his appeal. She informed him that she had reviewed the court’s file and noticed that the judgment had been entered on June 7, 2002, but that no notice of appeal had yet been filed. On August 1, 2002, Ms. Pawlik spoke with Mr. Gross by telephone, during which conversation Mr. Gross informed her that he would file a motion to address .the belated notice of appeal. Again, on August 2, Mr. Gross assured Ms. Pawlik that he would file a motion for belated appeal.

Chief Public Defender Jay Saxton also filed an affidavit regarding his communications with Mr. Gross. Specifically, Mr. Saxton’s affidavit reflects that on August 16, 2002, he spoke with Mr. Gross about Appellant's appeal. During that conversation, Mr. Gross stated that he had consulted with his malpractice insurer and two other (unknown) persons and had decided that he would not file a notice of appeal, nor would he take any further action on Appellant’s behalf. Mr. Gross acknowledged his continuing responsibility and duty as attorney of record to file the notice of appeal for Appellant’s case. Mr. Gross further acknowledged that it was his lack of due diligence that had resulted in no notice of appeal being timely filed in Appellant’s case.

While acknowledging that his office is not the attorney of record, Mr. Saxton now moves this court for permission to file a belated appeal in Appellant’s Division I criminal case. For over twenty years, this court has consistently granted motions for belated appeals brought on behalf of criminal defendants where the attorney admits that an error has been made and accepts responsibility for that error. See, e.g., Ray v. State, 348 Ark. 304, 73 S.W.3d 594 (2002) (per curiam); Brown v. State, 347 Ark. 362, 64 S.W.3d 274 (2002) (per curiam); Ross v. State, 346 Ark. 8, 53 S.W.3d 519 (2001) (per curiam); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).

In this case, however, we cannot grant the motion at this time, because the record before us does not demonstrate whether Mr. Gross has ever been relieved of his duties as attorney of record or whether the public defender’s office has been appointed to represent Appellant’s appeal from his Division I convictions. Accordingly, we must remand this matter to the trial court to determine whether Mr. Gross was relieved of his responsibility to represent Appellant in this matter, whether Appellant requested that Mr. Gross file a notice of appeal on his behalf, and whether the public defender’s office has been appointed to represent Appellant in this appeal. We therefore grant the parties thirty days from the date of this per curiam order to settle these issues.

Remanded.


text:
    Harry WARD, Individually, and On Behalf of Arkansans To Protect Police, Libraries, Education & Services v. Sharon PRIEST, Secretary of State; Karl Kimball, Gerhard Langguth, and Jeff Cantwell, Individually, and on Behalf of the Arkansas Libertarians Eliminating Regressive Taxes (ALERT) d/b/a Committee to Axe the Food Tax
    02-954
    86 S.W.3d 383
    Supreme Court of Arkansas
    Opinion delivered September 20, 2002

      Williams & Anderson, by: Jeff Askew, III, for intervenors.
    No response.
   Per Curiam.

We grant Intervenors’ Motion to Intervene.

Intervenors’ briefing schedule will be the same as Respondent’s. Intervenors’ response is due on October 7, 2002.

There will be no reply brief.

Thornton, J., not participating.


author: W.H. “Dub” Arnold, Chief Justice. Robert L. Brown, Justice, Tom Glaze, Justice,

text:
    Jeffrey L. BALDRIDGE v. Jana CORDES, Arkansas State Police
    02-66
    85 S.W.3d 511
    Supreme Court of Arkansas
    Opinion delivered September 26, 2002

      Cindy M. Baker, for appellant.

      Mark Pryor, Att’y Gen., by: Jill Jones Moore, Ass’t Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellant Jeffrey Baldridge filed a civil-rights suit in the Carroll County Circuit Court against Appellee Jana Cordes, an Arkansas State Trooper. The suit stems from Baldridge’s arrest for driving while intoxicated, no liability insurance, and careless and imprudent driving. The trial court granted summary judgment to Cordes, and Baldridge appealed. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(8) and (b)(5), as it presents issues needing clarification or development of the law. We find no error and affirm.

On August 9, 2000, Baldridge, and another individual were riding horses along the right-of-way US Highway 62 in eastern Carroll County. The horse Baldridge was riding became frightened, and shied onto Highway 62, where a car hit the animal with the mirror of the automobile. The accident occurred after dark. At the scene, Arkansas State Trooper Cordes determined that Baldridge was intoxicated given her perception that he smelled of intoxicants, his eyes were bloodshot, his speech was slurred, he was loud, and he appeared unsteady on his feet.

Baldridge was arrested and taken to the Carroll County Sheriffs’s Office where Trooper Cordes provided Baldridge with a statement of rights regarding a breathalyzer, and the penalties for refusing the breathalyzer. Baldridge submitted to two breathalyzer tests, one of which showed that Baldridge’s blood alcohol content was .007, and another of .008. There were no field sobriety tests given, and no other blood alcohol tests given. Baldridge was acquitted of all charges by the municipal court.

On October 17, 2000, Baldridge filed a complaint in the Carroll County Circuit Court alleging that Jana L. Cordes, Arkansas State Police, in her individual capacity, had violated his Federal Constitutional rights and his State Constitutional rights, and also stated a claim for defamation of his character.

Cordes filed a motion for summary judgment based on the belief that her actions were covered by immunity. Despite Baldridge’s request, no hearings were held on the motions, and the trial court entered summary judgment in favor of Cordes, on grounds that Cordes was entitled to qualified immunity from suit, and that the facts stated in the Baldridge complaint were insufficient to overcome her immunity. We agree, and affirm.

Summary Judgment

The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitied to judgment as a matter of law. Bond v. Lavaca School District, 347 Ark. 300, 64 S.W.3d 249 (2001); Dodson v. Taylor, 346 Ark. 443, 57 S.W.3d 710 (2001); Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998), supp. opinion on denial of reh’g, 332 Ark. 189, 961 S.W.2d 712 (1998). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Bond, supra. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.

Qualified Immunity

A motion for summary judgment based upon qualified immunity is precluded only when the plaintiff has asserted a constitutional violation, demonstrated the constitutional right is clearly established and raised a genuine issue of fact as to whether the official would have known that the conduct violated that clearly established right. Smithson v. Aldrich, 235 F.3d 1058 (8th Cir. 2000). As applied by this court, the doctrine of qualified immunity is akin to its federal counterpart. Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999). Thus, an official is immune from suit if his actions did not violate clearly established principles of law of which a reasonable person would have knowledge. Virden v. Roper, 302 Ark. 125, 788 S.W.2d 470 (1990); Flentje v. First National Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000); Rudd v. Pulaski County Special School District, 341 Ark. 794, 20 S.W.3d 310 (2000) (qualified immunity under Arkansas law rests on the same scope and principles as under federal law.)

Arkansas Code Annotated § 19-10-305 (Supp. 1999) provides in pertinent part: “Officers and employees of the State of Arkansas are immune from liability from suit, except to the extent that they may be covered by liability insurance, for damages for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment.” This court has interpreted that section to mean that state officers and employees acting without malice and within the course and scope of their employment are immune from an award of damages in litigation. Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999); Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998); Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997). This court has recognized that the immunity provided by section 19-10-305 is similar to that provided by the Supreme Court for federal civil-rights claims. Robinson v. Langdon, 333 Ark. 662, 970 S.W.2d 292 (1998).

A court deciding the issue of qualified immunity “must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation. Pace v. City of Des Moines, 201 F.3d 1050 (2000); Conn v. Gabbert, 526 U.S. 286 (1999).

The right not to be arrested or prosecuted without probable cause has, of course, long been a clearly established constitutional right. Dunaway v. New York, 442 U.S. 200 (1979); Robinson et. al. v. Beaumont et. al., 291 Ark. 477, 725 S.W.2d 839 (1987). An arresting officer is entitled to qualified immunity if the arrest was objectively reasonable, and officers of reasonable competence could disagree on whether the probable-cause test was met. Malley v. Biggs, 475 U.S. 341 (1986). If the complaint alleges violation of a clearly established law, the suit should continue. Robinson, supra.

Baldridge asserts an unlawful arrest, unlawful search and seizure (breathalyzer), unlawful detainment (seizure of the individual without probable cause), deprivation of liberty and property (arrest without probable cause), all of which are allegations of violations of constitutional rights that were clearly established at the time of the actions complained of occurred. Baldridge also argues to this court that once a genuine issue of material fact is found to exist, the defense of qualified immunity shielding the defendant from trial must be denied.

Probable cause exists if “at the moment the arrest was made . . . the facts and circumstances within [a police officer’s] knowledge and of which [the officer] had reasonably trustworthy information were sufficient to warrant a prudent man in believing” that the person arrested committed the crime with which he was charged. Beck v. Ohio, 379 U.S. 89, 91 (1964). As this standard makes clear, there need not be actual probable cause for an officer to be shielded by qualified immunity; an objectively reasonable belief that there was probable cause is enough. Pace, supra; Thompson v. Reuting, 968 F.2d 756 (8th Cir. 1992).

In Walden v. Carmack, the Eighth Circuit stated, “A defendant need not show that there was only one reasonable conclusion ... on whether probable cause existed, but rather, a court should ask whether the . . . officials acted reasonably under settled law in the circumstances then existing, not whether another reasonable, or more reasonable interpretation of the facts can be constructed years later.” 156 F.3d 861 (8th Cir. 1998). If there is a reasonable basis to conclude that probable cause existed, qualified immunity shields the officer from suit, and courts must take caution not to simply judge the officer’s actions with the benefit of 20/20 hindsight. Tauke v. Stine, 120 F.3d 1363 (8th Cir. 1997).

Of course, the burden remains on the proponent of the immunity to establish the relevant predicate facts, and at the summary-judgment stage the nonmoving party is given the benefit of all reasonable inferences. Pace, supra; Arnott v. Mataya, 995 F.2d 121, 124 (8th Cir. 1993). In the event that a genuine dispute exists concerning predicate facts material to the qualified immunity issue, the defendant is not entitled to summary judgment on that ground. Pace, supra; Lambert, 187 F.3d at 935. What must be kept in mind, however, is that once the predicate facts have been established, for the purposes of qualified immunity there is no such thing as a “genuine issue of fact” as to whether an officer “should have known” that his conduct violated constitutional rights. Pace, supra. The conduct was either reasonable under settled law in the circumstances, or it was not, and this is a determination of law that should be made at the earliest possible stage in litigation. Pace, supra. Whether an officer acted reasonably under settled law in the circumstances is a question of law, and not itself a predicate fact. Pace, supra. “Predicate facts” include only the relevant circumstances and the acts of the parties themselves, and not the conclusions of others about the reasonableness of those actions. Pace, supra.

Baldridge’s opinion, or even those of other officers, that no reasonable or competent officer could have reached such a conclusion, does not bear upon the qualified-immunity analysis, for it is a purely legal inquiry where the court does not engage in opinion polling to determine objective reasonableness. The objective reasonable-person standard utilized in the qualified-immunity analysis ignores the factual opinions of others because it is a legal inquiry, Siegert v. Gilley, 500 U.S. 226 (1991).

Arkansas Code Annotated 5-65-103 states:

5-65-103. Unlawful acts.
(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time the alcohol concentration in the person breath or blood was eight-hundredths (0.08) or more based upon the definition of breath, blood, and urine concentration in § 5-64-204.

Ark. Code Ann. § 5-65-103 (Repl. 1997). Arkansas Code Annotated further states:

5-65-107. Persons arrested to be tried on charges No charges reduced ■— Filing citations.
(a) Persons arrested violating § 5-65-103 shall be tried on those charges or plead to such charges, and no such charges shall be reduced.
(b) Furthermore, when a law enforcement officer issues a citation for violating § 5-65-103, the citation shall be filed with the court as soon as possible.

Ark. Code Ann. § 5-65-107 (Repl. 1997). Therefore, persons arrested violating the Arkansas DWI law shall be tried on those charges or plead to such charges, and no such charges shall be reduced. Consequently, Baldridge was required under Arkansas law to be tried for driving while intoxicated, because he was arrested on those charges.

However, given Cordes’s perception of Baldridge at the scene of the accident, she had probable cause to arrest him for drinking in public. According to Arkansas Code Annotated:

5-71-212. Public intoxication Drinking in public.
(a) A person commits the offense of public intoxication if he appears in a public place manifesdy under the influence of alcohol or a controlled substance to the degree and under circumstances such that he is likely to endanger himself or other persons or property, or that he unreasonably annoys persons in his vicinity.

Ark. Code Ann. § 5-71-212 (Repl. 1997). There is no competent evidence before this court that rebuts Cordes’s perception of Baldridge’s sobriety. Cordes determined that Baldridge was intoxicated given her perception that he smelled of intoxicants, his eyes were bloodshot, his speech was slurred, he was loud, and he appeared unsteady on his feet. Given this behavior, Cordes arrested Baldridge and had a duty to remove Baldridge from the highway.

The Eighth Circuit Court of Appeals has held that “where a defendant is arrested for the wrong offense, the arrest is still valid if probable cause existed to arrest the defendant for a closely related offense.” United States v. Rambo, 789 F.2d 1289, 1294 (8th Cir. 1986); United States v. Prouse, 945 F.2d 1017 (8th Cir. 1991). It is undisputed that Baldridge was on the highway after dark when he was involved in an accident with a car. Further, given Baldridge’s behavior and physical demeanor at the scene, Cordes had probable cause to arrest Baldridge for public intoxication. Further, once probable cause is established for the arrest of the accused on one offense, it then becomes irrelevant whether probable cause existed for other offenses for which the accused was charged. Linn v. Garcia, 531 F.2d 855 (8th Cir. 1976). So long as Cordes had probable cause to arrest Baldridge for DWI or public intoxication, the fact that he was also cited for other violations becomes immaterial.

After arresting Baldridge on DWI charges, Cordes attempted to remedy her error by amending the charge to drinking in public in violation of Ark. Code Ann. § 5-71-212 (Repl. 1997). Baldridge was served with a letter stating that Cordes was “amending the charges.” However, Cordes did not have the authority to amend the driving-while-intoxicated charge once Baldridge had been arrested under Ark. Code Ann. § 5-65-107.

However, Cordes is still entitled to qualified immunity. As an Arkansas State Trooper, Cordes had the right and duty to remove Baldridge from the highway after Baldridge was involved in an accident. Cordes did arrest Baldridge under the wrong citation, but she attempted to amend the charges once this was realized. Cordes does not lose her immunity because the charges could not be amended under Arkansas law.

Affirmed.

Corbin, Brown, and Thornton, JJ., concur.

Glaze, J., dissents.

Robert L. Brown, Justice,

concurring. I have a hard tiholding, ce, majority does, that police officers of reasonable competence would disagree on the issue of whether riding horseback while intoxicated constitutes driving while intoxicated. Clearly, riding horseback is not driving a motor vehicle. Nevertheless, by her arrest, Trooper Cordes did remove a person who had been drinking and who was on Highway 62 from that highway. This was certainly in the public interest. For that reason, I conclude that in arresting Jeffrey Baldridge, she was not plainly incompetent.

The United States Supreme Court has set the federal standard for qualified immunity:

As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law. At common law, in cases where probable cause to arrest was lacking, a complaining witness’ immunity turned on the issue of malice, which was a jury question. Under the Harlow [Harlow v. Fitzgerald, 457 U.S. 800 (1982)] standard, on the other hand, an allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner. The Harlow standard is specifically designed to “avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment,” and we believe it sufficiently serves this goal. Defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.

Malley v. Briggs, 475 U.S. 335, 341 (1986). I am more comfortable in this case using the test of “plainly incompetent” rather than “objective reasonableness.”

Having concluded that Trooper Cordes is entitled to qualified immunity for the federal claim, I question the majority’s analysis of the state civil rights claim. The pertinent state statute granting qualified immunity under state law reads:

(a) Officers and employees of the State of Arkansas are immune from liability and from suit, except to the extent that they may be covered by liability insurance, for damages for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment.

Ark. Code Ann. § 19-10-305(a) (Supp. 1999). We do not know from the majority opinion whether Trooper Cordes was covered by liability insurance and, if not, whether Baldridge alleged malice on the part of the trooper in his complaint. My reading of Baldridge’s complaint is that malice was not alleged. Because of this, I conclude that Trooper Cordes is also entitled to qualified immunity for the state claim.

I concur in the result reached by the majority.

Corbin and Thornton, JJ., join.

Tom Glaze, Justice,

dissenting. The facts are not disputed. e, August 9, 2000, Officer Jana Cordes arrested Jeffrey Baldridge for driving a motor vehicle while intoxicated, careless driving of a vehicle, and having no proof of insurance to operate a motor vehicle. Cordes charged Baldridge with these traffic offenses as a result of Baldridge’s riding a horse alongside Highway 62 in Carroll County when his horse saw something causing it to shy onto the road and hit the mirror of a car traveling on the highway.

Cordes had Baldridge submit to two breathalyzer tests that showed Baldridge’s alcohol content to be .007 and .008, weE under the .08 limit for a person operating a motor vehicle. Cordes did not administer a field sobriety test at the scene of the accident. The BerryviEe Municipal Court dismissed the charges against Baldridge, because the violations involved a horse, which the court found was not a motor vehicle as contemplated by Arkansas’s laws.

During the pendency of Baldridge’s traffic offense charges, Baldridge filed suit against Cordes, aEeging the violation of his rights under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments. Cordes responded, stating she was immune from suit except to the extent she was covered by insurance and she was protected under qualified immunity under federal law. The circuit court ruled in Cordes’s favor, granting her request for summary judgment and finding Cordes had sufficient reason and probable cause to arrest Baldridge for the offense of driving a motor vehicle while intoxicated. Baldridge appeals that decision, and this court affirms the circuit court. As hard as I try, I am simply unable to understand how anyone — much less a state police officer — can reasonably believe a horse can be characterized as a motor vehicle under Arkansas law. Therefore, I respectfuEy dissent.

It is weE settled that law enforcement officials who “reasonably but mistakenly conclude that probable cause is present” are entitled to immunity. Anderson v. Creighton, 483 U.S. 635 (1987). Government officials are qualifiedly immune from liability in civil actions to the extent their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800 (1982). The qualified immunity defense protects “aE but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335 (1986). Thus, if an officer acts in a manner about which officers of reasonable competence would disagree, the officer should be immune from liabEity. Accordingly, in Section 1983 cases involving charges of improper arrest, we have held that “the issue for immunity purposes is not probable cause in fact but arguable probable cause.” Myers v. City of Morris, 810 F.2d 1437 (8th Cir. 1987); see also Habiger v. City of Fargo, 80 F.3d 289 (8th Cir. 1996); Johnson v. Schneiderheinz, 102 F.3d 340 (8th Cir. 1996).

The Eighth Circuit, in Pace v. City of Des Moines, 201 F.3d 1050 (2000), recently held that a plaintiff can defeat a motion for summary judgment on the grounds of a qualified-immunity defense if the following three elements are present: 1) if the plaintiff has alleged a deprivation of an actual constitutional right; 2) if the right was clearly established at the time of the alleged violation; and 3) a genuine issue of fact as to whether the officer would have known that his/her alleged conduct would have violated plaintiffs rights.

In the case at bar, Baldridge alleged several deprivations of his Fourth Amendment rights, i.e., Trooper Cordes’s actions of stopping Baldridge, detaining him to issue the citation, arresting him, requiring him to submit to the breathalyzer, and requiring him to attend court. The right not to be arrested or prosecuted without probable cause is a clearly established constitutional right. Dunaway v. New York, 442 U.S. 200 (1979); Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987). Probable cause exists if “at the moment the arrest was made . . . the facts and circumstances within [a police officer’s] knowledge and of which [the officer] had reasonably trustworthy information were sufficient to warrant a prudent man in believing” that the person arrested committed the crime with which he was charged. Beck v. Ohio, 379 U.S. 89 (1964). There need not be actual probable cause for an officer to be shielded by qualified immunity; an objectively reasonable belief that there was probable cause is enough. Hunter v. Bryant, 502 U.S. 224 (1991).

The Pace court stated that courts deciding questions of qualified immunity must also recognize “that whether summary judgment on grounds of qualified immunity is appropriate from a particular set of facts is a question of law.” Pace further states the following:

What must be kept in mind, however, is that once the predicate facts have been established, for the purposes of qualified immunity there is no such thing as a “genuine issue of fact” as to whether an officer “should have known” that his conduct violated constitutional rights. The conduct was either “reasonablfe] under settled law in the circumstances,” Hunter, 502 U.S. at 228, 112 S. Ct. at 537, or it was not, and this is a determination of law that should be made at the earliest possible stage of litigation.

Pace, 201 F.3d at 1056. Also, “predicate facts” include only the relevant circumstances and the acts of the parties themselves, and not the conclusions of others about the reasonableness of those actions. When there is no dispute among the parties as to the relevant facts, a court should always be able to determine as a matter of law whether or not an officer is eligible for qualified immunity — that is, whether or not the officer acted reasonably under settled law given the particular set of facts.

The relevant facts in this case are that Baldridge was arrested and charged with three motor vehicle traffic violations while riding a horse. The issue boils down to whether it was reasonable for Trooper Cordes to believe that Baldridge had committed the offenses with which she charged him. As previously mentioned, Baldridge was charged with DWI, a violation of Ark. Code Ann. § 5-65-103. Section 5-65-103(a) provides, “It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.” (Emphasis added.) In Fitch v. State, 313 Ark. 122, 853 S.W.2d 874 (1993), this court looked at the issue as a matter of first impression when a man was charged with DWI while operating an all-terrain vehicle. The Fitch court concluded that “a motor vehicle is generally defined as a self-propelled wheeled conveyance that does not run on rails.” American Heritage Dictionary, 817 (2d Ed. 1982). Under the Transportation Title chapter on Registration and Licensing, Ark. Code Ann. § 27-14-207(b) (Supp. 1991) defines the term “motor vehicle” as follows: “ ‘Motor Vehicle’ means every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.” The term “motor vehicle” is defined the same throughout the various chapters of the Transportation Title, e.g., see §§ 27-16-207(b), 27-19-206, and 27-49-219(b) (1987).

In sum, in my view, Baldridge may have violated some law because he was riding a horse alongside a highway, but I suggest that Cordes was not reasonable or acting competently when she charged Baldridge with a motor-vehicle offense. The most she could have charged Baldridge with was public intoxication, and even with that charge, the facts are very much in question.