text:
    IN THE MATTER of the Estate of Charlye Vera Forrester DAVIDSON
    91-326
    839 S.W.2d 214
    Supreme Court of Arkansas
    Opinion delivered October 19, 1992

      Kay L. Matthews and James L. Sloan, for appellant.

      Hardin, Jesson, Dawson & Terry, by: P.H. Hardin, for appellee.
   Robert L. Brown, Justice.

This appeal presents two points for our review: (1) whether the probate court erred in failing to find either that the testatrix was of unsound mind when she executed her 1984 and 1985 wills or that the wills were procured through her lawyer’s exercise of undue influence upon her; and (2) whether the non-contest clauses to the two instruments are enforceable. We agree with the probate court that the 1985 will is valid and that it revoked the 1984 will, and we affirm.

The decedent, Charlye Vera Forrester Davidson, a resident of Waldron, died on February 3, 1989, at the age of ninety. She was living in a nursing home at the time of her death and left an estate in excess of two million dollars. For a number of years, Mrs. Davidson received legal representation from Donald Goodner, who, with his wife, also ran personal errands for the decedent. On February 24, 1984, Goodner prepared a will for Mrs. Davidson, in which, among other things, he was appointed her executor and was given, after other bequests, the residue and remainder of her property. Subsequently, on December 11, 1985, Goodner prepared another will for the decedent in which he was named co-executor and from which he was dropped as a residual beneficiary in favor of Mrs. Davidson’s nephews, John Charles Forrester and William Hughes Forrester. The nephews’ names, according to Goodner, were added as residuary beneficiaries on a blank line after the will was typed. Both wills contained no-contest clauses which provided for disinheritance in the event that a contest was filed. Over the next three years, Goodner and his wife received gifts from the decedent totaling $60,000.

Following Mrs. Davidson’s death, the 1984 will was admitted to probate on March 27, 1989. William Forrester then petitioned the probate court to set it aside and alleged that at the time the instrument was executed, the decedent was not of sound mind and was acting under the influence of her lawyer, Donald Goodner. After the will contest was filed, Goodner discovered the decedent’s 1985 will behind a dishwasher in the decedent’s house. A petition to admit the 1985 will to probate was filed on September 19, 1989, and that will was contested by William Forrester with the same allegations of unsound mind and undue influence advanced.

The probate court heard Goodner’s petition to admit the 1985 will and nephew William Forrester’s contest on April 9, 1991. In the resulting decree, the probate court declared that the 1985 will revoked the 1984 will, and it admitted that 1985 will to probate. The court also found that at the time of the execution of the two instruments, the decedent was “in all respects competent, was not acting under restraint or undue influence, and that the execution, subscription, and publication of each of the instruments were not procured by fraud practiced upon her by anyone, but each of the wills was her free act and deed.” The court then appointed Goodner as executor of the decedent’s estate.

I. SOUND MIND

William Forrester now seeks to invalidate both the 1984 and 1985 wills on grounds of lack of testamentary capacity in an effort to have the estate pass by intestacy. In this effort, he presented evidence of the testatrix’s developing dementia, aging diseases, and paranoid ideation regarding her house. There was also testimony that the testatrix suffered from near-total blindness.

We try probate cases de novo on appeal, and the decision of the probate judge will not be reversed unless it is clearly erroneous, that is, clearly against the preponderance of the evidence. Gifford v. Estate of Gifford, 305 Ark. 46, 805 S.W.2d 71 (1991); Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963). In our review, we give due deference to the superior position of the probate judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992).

Once the proponent of a will shows that the will is rational on its face and has been executed and witnessed in accordance with testamentary formalities, the party challenging the will’s validity is required to prove by a preponderance of the evidence that the testator lacked mental capacity or was unduly influenced at the time the will was executed. In Re Conservatorship of Kueteman, 309 Ark. 546, 832 S.W.2d 234 (1992); Reddoch v. Blair, 285 Ark. 446, 688 S.W.2d 286 (1985); Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Thompson v. Orr Estate, 252 Ark. 377, 479 S.W.2d 229 (1972).

The decedent’s physician, Dr. Louis O. Lambiotte, testified that between 1960 and 1985, Mrs. Davidson began suffering from diseases associated with aging, including macular degeneration, arteriosclerosis, mild hypertension, abnormal glucose tolerance, a systolic murmur of the aortic valve, and paranoid ideation with reference to her house and the objects in it. He further testified that she always recognized him and knew where she was. In his view, “her delusional thinking . . . represented a slot of abnormality” which would not have prevented her from recognizing family members, and specifically her two nephews.

A psychiatrist, Dr. Joe H. Dorzab, who saw the decedent in April 1985, diagnosed her primary problem as deteriorating memory caused by either Alzheimer’s dementia or multi-infarct dementia. Other witnesses described Mrs. Davidson as strong-willed, eccentric, and “nutty.” Toward the end of her life, and in 1985, she was obsessed by the fact that someone was trying to enter her house and take her things. This caused her to lock her house and nail her doors shut. The probate court also had the benefit of a lengthy telephone conversation between William Forrester and the testatrix which was taped on May 6, 1987. That tape, which provided some insight into the testatrix’s mental state, was played at trial.

Our generally expressed rule for testamentary capacity is that the testatrix must be able to know the natural objects of her bounty and the extent of her property; to understand to whom the property is being given; and to realize those who are being excluded from the will. Daley v. Boroughs, supra; In Re Conservatorship of Kueteman, supra; Hiler v. Cude, 248 Ark. 1065, 455 S.W.2d 891 (1970).

In the present case, nothing before us suggests that the elements of mental competency were not present when Mrs. Davidson executed her December 11, 1985 will. No expert opinion contravenes her testamentary capacity on that date. On the contrary, three witnesses attested to her signature on the will, and none espoused the view that there was any unusual behavior on Mrs. Davidson’s part or any problem concerning soundness of mind. Two witnesses in fact recall Mrs. Davidson’s specifically declaring that she was there to sign her will. Morepver, there was testimony that at the time Mrs. Davidson was aware of the property she owned by Lake Waldron and of her properties in Colorado and Texas.

Our probate law does not require that a testatrix mete out exact justice in the devise of her property. See Bruere v. Mullins, 229 Ark. 904, 320 S.W.2d 274 (1959). So long as she has the capacity to make a will, she may be unfair, eccentric, injudicious, or capricious in making distribution. Id. Moreover, the fact that Mrs. Davidson was suffering ideation relative to her house and incipient dementia does not, in itself, establish an impairment of testamentary capacity. Id. As Dr. Lambiotte testified, this could represent only “a slot of abnormality.”

Any assertion that Mrs. Davidson was unfair to her nephews is difficult to fathom in light of the fact that they received almost ninety percent of the estate’s assets as residuary beneficiaries under the 1985 will. But, more importantly, the proposition that she did not know her property or who her heirs were and was unable to interrelate those factors was simply not proven.

Because there was insufficient proof that the testatrix lacked the requisite mental capacity to make a will on in December 11, 1985, Forrester’s contest must fail.

II. UNDUE INFLUENCE

The additional assertion of undue influence really pertains more to the 1984 will where Goodner was a residuary beneficiary than to the 1985 will where he was not a recipient of the residuary estate. William Forrester contends, however, that the circumstances surrounding the two wills taints the 1985 will. He further looks to the testator’s signature on the 1985 will which, he urges, indicates that she was assisted in her execution, the $60,000 in gifts to Goodner and his wife, and the line and different type for the residuary beneficiaries in the 1985 will as highly suspicious. Lastly, he contends that Mrs. Davidson would never have left his infirmed son, Billy, out of the 1985 will.

Undue influence sufficient to void a will must not spring from natural affection but must result from fear and coercion so as to deprive a testatrix of free will and direct the benefits of the will to particular parties. Rose v. Dunn, supra. We discussed the manner of proof required for undue influence sixty years ago:

Undue influence is generally difficult of proof. It is generally exercised in secret, not openly, and, like a snake crawling upon a rock, it leaves no track behind it, but its sinister and insidious effect must be determined from facts and circumstances surrounding the testator, his physical and mental condition as shown by the evidence, and the opportunity of the beneficiary of the influenced bequest to mold the mind of the testator to suit his or her purposes.

Hyatt v. Wroten, 184 Ark. 847, 853, 43 S.W.2d 726, 728 (1931).

Because of the allocation of the assets of her estate, it is difficult to discern a sinister or insidious effect from the 1985 will. It is true that Goodner had a confidential relationship with Mrs. Davidson. Beyond that, we can only speculate about what her susceptibility to any testamentary suggestions by Goodner might have been. Our major problem with the contestant’s argument is that neither Goodner nor any persons associated with him are distributees under the 1985 will. Without some assets flowing to particular parties sought to be benefitted by the supposed culprit, an undue influence claim is hard to sustain.

Forrester asserts that the will was unjust and unnatural and is, therefore, invalid. He adduces the following authority to support his argument:

The expression “unjust and unnatural will” is usually applied when a testator leaves his estate, or a large portion of it, to strangers, to the exclusion of natural objects of his bounty without any apparent reason. [Citations omitted.] A will cannot be said to be unnatural because a testator preferred one for whom she had developed a close and affectionate relationship [citations omitted], or when the natural objects of the testator’s bounty are in no need of funds, aid or assistance. [Citation omitted.]

Abel v. Dickinson, 250 Ark. 648, 653-654, 467 S.W.2d 154, 156 (1971); see also Edwards v. Vaught, 284 Ark. 262, 269, 681 S.W.2d 322, 326 (1984).

Here, roughly ninety percent of the benefits went to the Forrester brothers, who were the testatrix’s nephews. They were not strangers but legitimate objects of her bounty. Because of this, the only remaining point of discussion is whether the bequests to the Methodist Church and its affiliates and other family members and charities were so unnatural as to evidence a deprivation of free will. We cannot say that they were. Mrs. Davidson was, during her life, a committed member of the Methodist Church, and remembering the church in her will was far from a suspicious act. She bequeathed her home and furnishings to a foster child and made other bequests to two first cousins, a cemetery park, and a recreational park. Contrary to appearing unnatural, these bequests are readily understandable and reasonable.

We observe no strangers or unnatural beneficiaries under the will and no proof of coercion waged against Mrs. Davidson. Finally, though suspicions and theories abounded in this case, allegations of undue influence must be supported by proof. Chauvin v. Johnson, 193 Ark. 600, 101 S.W.2d 432 (1937). Here, the proof was deficient and the claim of undue influence cannot prevail.

III. NO-CONTEST CLAUSES

Different no-contest clauses appeared in the 1984 will and the 1985 will. The 1984 will does not specifically address a contest by Forrester or his brother; the 1985 will does. Forrester seeks to invalidate the two clauses because he contends they are contrary to public policy. This issue was not raised before the probate court, however, and we will not consider it on appeal. See Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 837 (1992).

Because we affirm the probate court’s decision admitting the 1985 will to probate, it is not necessary for us to consider the validity of the revoked 1984 will.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Allen CLAY v. STATE of Arkansas
    CA CR 92-547
    839 S.W.2d 10
    Supreme Court of Arkansas
    Opinion delivered October 19, 1992

      Louis A. Etoch, for appellant.
    No objection.
   Per Curiam.

Appellant, Allen Clay, by his attorney, has filed for a rule on the clerk.

His attorney, Louis A. Etoch, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Patricia KOZAL v. BOARD OF CORRECTION, et al.
    92-1093
    840 S.W.2d 164
    Supreme Court of Arkansas
    Opinion delivered October 19, 1992

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Per Curiam.

Patricia Kozal seeks review of the denial of a writ of habeas corpus in this petition for a writ of certiorari. Her original complaint alleged that Department of Correction authorities were not giving her proper credit for “good time” she has earned and will earn during her incarceration. As a result of the improper computation she alleges she will be required to serve a longer term than is lawful. She first filed her complaint in the Federal Court which stayed proceedings pending exhaustion of State remedies. She then filed a petition seeking the habeas corpus writ in the Circuit Court of Jefferson County. This petition was denied and forms the basis for review.

The State argues the writ should be denied as Ms. Kozal has an adequate remedy by way of a direct appeal. We cannot agree that denial of habeas corpus may adequately be addressed only by way of a direct appeal. The proper method of bringing up proceedings on habeas corpus for review is by means of a writ of certiorari. City of Clinton v. Jones, 302 Ark. 109, 787 S.W.2d 242 (1990); Taylor v. Moore, 99 Ark. 412, 138 S.W. 634 (1911). It is clear, however, that the habeas corpus writ is granted only when a person is detained without lawful authority or imprisoned when by law he or she is entitled to bail. This is not such a case, and thus the writ of certiorari must be denied. There may be other ways of addressing the relief sought here, such as, for example, by declaratory judgment, but they are not before us.

Petition denied.


text:
    Albert MARTIN, JR. v. STATE of Arkansas
    CR 92-1146
    839 S.W.2d 520
    Supreme Court of Arkansas
    Opinion delivered October 19, 1992

      Robert P. Remet, for appellant.

      Winston Bryant, Att’y Gen., by: Jeff Vining, Asst. Att’y Gen., for appellee.
   Per Curiam.

In 1987 Albert Martin, Jr., was found guilty by a jury of aggravated robbery and sentenced to forty years imprisonment. No appeal was taken. Martin did not seek a belated appeal from this court within eighteen months of the date of judgment as required by Criminal Procedure Rule 36.9. Petitioner subsequently filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court in which he contended that his counsel at trial was ineffective for failing to perfect an appeal. The district court concluded that Martin had not been afforded effective assistance of counsel under federal law and entered an order stating that a writ of habeas corpus would issue unless this court granted Martin a belated appeal.

Now before us is a motion for belated appeal filed by the State. Martin by counsel has responded that he was aware of his trial attorney’s failure to perfect an appeal within time to file a timely motion for belated appeal under Criminal Procedure Rule 36.9 but that he did not do so. He further states that he has not requested a belated appeal and that he does not desire an appeal. Martin urges this court to deny the state’s motion.

This court has granted a belated appeal on the state’s motion in similar cases where the federal court concluded that a writ of habeas corpus would issue on the ground that the petitioner had been denied effective assistance of counsel for failure to perfect an appeal if this court declined to permit a belated appeal. McDuffy v. State, 307 Ark. 518, 826 S.W.2d 518 (1992); Easter v. State, 306 Ark. 517, 815 S.W.2d 391 (1991). In those cases the permission to proceed with a belated appeal was based on this court’s desire to extend the right to appeal to a convicted defendant who desired an appeal. Here, Martin has stated categorically that he was well aware of counsel’s failure to perfect an appeal and that he elected to not proceed with a timely motion for belated appeal in this court. Martin further states that he does not now desire an appeal. We surely would permit the appeal to satisfy the United States District Court’s order, but Martin has now clearly waived the right to appeal.

Motion denied.

       This court remanded the state’s motion for belated appeal to the trial court for an evidentiary hearing in Salam v. State, 300 Ark. 630, 781 S.W.2d 30 (1989), where the record before this court did not reflect whether the petitioner had waived his right to appeal. It was subsequently determined that the petitioner had not waived his appeal right and the state’s motion was granted. Salam v. State, 301 Ark. 347, 783 S.W.2d 63 (1990).


text:
    Ronnie REED v. STATE of Arkansas
    CR 92-41
    840 S.W.2d 165
    Supreme Court of Arkansas
    Opinion delivered October 19, 1992

      Ralph M. Cloar, Jr., for Petitioner.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for Respondent.
   Per Curiam.

The appellant was convicted of delivery of a controlled substance and sentenced to one-hundred years imprisonment. Attorneys first engaged by the appellant for his appeal asked to be relieved as counsel on February 14, 1992, stating that the appellant could no longer afford to pay them. Their appeal brief was due February 22, 1992. On February 28, 1992, James Massie moved to be substituted as attorney. That motion was granted, and the appeal brief in the case was due Saturday, May 2, 1992. On May 4, Mr. Massie asked for an extension until June 18. On June 18, Mr. Massie requested an additional fifteen days, which were granted. On July 6 he asked for an additional thirty days, and the time was extended until Sunday, August 2. The court declared this to be the final extension. On August 3, counsel tendered a motion requesting twelve more days, but on August 4 the clerk returned the motion because the time for filing a brief had elapsed and informed him of the need to file a motion for belated brief. Counsel has since filed no motion nor tendered a brief on behalf of the appellant. On September 29, 1992, the appellant filed a pro se motion to relieve Mr. Massie as his attorney, noting that Mr. Massie had not perfected the appeal and that there is a conflict of interest between him and Mr. Massie.

The motion to relieve Mr. Massie as counsel is denied because the appellant has not offered facts to demonstrate that counsel cannot provide the effective assistance of counsel guaranteed by the sixth amendment or that there is a genuine conflict of interest. Counsel is being directed by a separate Per Curiam order to appear on November 2, 1992, at 9:00 a.m. to show cause why he should not be held in contempt of this court for failure to file a timely appellant’s brief in this case. If information is adduced at that proceeding which indicates that counsel cannot provide effective assistance of counsel on appeal, the appellant’s motion will be reconsidered. See Bogard v. State, 307 Ark. 427, 820 S.W.2d 276 (1991).

The appellant has also filed a pro se motion for a copy of the transcript at public expense. He gives no reason for needing the transcript beyond stating that he needs the transcript to show that his counsel was ineffective at trial.

A appellant is not entitled to a free copy of the trial record or other material on file with this court unless he demonstrates some compelling need for specific documentary evidence to support an allegation contained in a petition for post-conviction relief. See Austin v. State, 287 Ark. 256, 697 S.W.2d 914 (1985); see Chavez v. Sigler, 438 F.2d 890 (8th Cir. 1971); see also United States v. Losing, 601 F.2d 351 (8th Cir. 1979). Indigency alone does not entitle an appellant to a transcript at public expense. Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980). As the appellant here has cited no reason for requiring a copy of the trial transcript the motion is denied.

It should be noted that when an appeal has been lodged in either this court or the court of appeals, the appeal transcript and briefs remain permanently on file with the clerk of the supreme court. Counsel may checkout through the clerk’s office, briefs and transcripts for a period of time, and persons who are not attorneys may review a transcript and briefs in the clerk’s office and photocopy all or portions of them. An incarcerated person desiring a photocopy of pages from a transcript or brief may write this court and request that the copy be mailed to the prison. All persons, including prisoners, must bear the cost of photocopying. Austin, 287 Ark. 256, 697 S.W.2d 914 (1985).

Motion denied.


text:
    Ronnie REED v. STATE of Arkansas
    CR 92-41
    840 S.W.2d 165
    Supreme Court of Arkansas
    Opinion delivered October 19, 1992
   Per Curiam.

Appellant’s attorney James Massie is directed to appear before this court at 9:00 a.m. on November 2, 1992, to show cause why he should not be held in contempt of court for failure to file a brief in the case.


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

text:
    Richard PLUGGE, Individually, and on Behalf of Arkansas for Representative Democracy, and All Others Similarly Situated v. W. J. “Bill” McCUEN, Secretary of State Arkansans for Governmental Reform, Inc.
    92-1074
    841 S.W.2d 139
    Supreme Court of Arkansas
    Opinion delivered October 20, 1992
    [Supplemental Opinion on Denial of Rehearing November 2, 1992.]

      Friday, Eldredge & Clark, by: Robert S. Shafer and T. Wesley Holmes, for petitioners.

      Winston Bryant, Att’y Gen., by: Jeffrey A. Bell, Deputy Att’y Gen., for respondent Secretary of State.

      Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by: Sam Hilburn, for intervenor-respondent Arkansans for Governmental Reform, Inc.

      Corbin, J., not participating.

   Tom Glaze, Justice.

Petitioners, the Arkansas Farm Bureau and a group known as Arkansas for Representative Democracy, filed this original action against the Secretary of State under Amendment 7 to the Arkansas Constitution, attacking the sufficiency of the ballot title of the proposed Arkansas Term Limitation Amendment. On July 3, 1992, the sponsors of this proposed amendment filed their initiative petitions with the Secretary of State’s office to get their measure on the 1992 General Election ballot. The Secretary of State eventually approved the signatures and ballot title submitted by the sponsors as sufficient, and on September 16,1992, he certified the proposed amendment to appear on the General Election ballot. Petitioners filed this action on September 22, 1992, and Arkansans for Governmental Reform Inc. (AGR), supporters of the amendment, intervened in the case on September 24, 1992.

Petitioners contend the proposed amendment’s ballot title is defective and misleading, and in doing so, argue significant parts and wording contained in the amendment are not, but should be, disclosed. The preamble reads as follows:

The people of Arkansas find and declare that elected officials who remain in office too long become preoccupied with reelection and ignore their duties as representatives of the people. Entrenched incumbency has reduced voter participation and has led to an electoral system that is less free, less competitive, and less representative than the system established by the Founding Fathers. Therefore, the people of Arkansas, exercising their reserved powers, herein limit the terms of elected officials.

Citing several cases, petitioners complain the first sentence of the preamble changes Arkansas’s settled law that presumes elected officials act honestly, impartially and in good faith in the performance of their official duties. Next, they disagree with the use of the terminology “entrenched incumbency” in the preamble, saying that such language carries a negative connotation that fails to reflect those other voters who favor term limitation because they believe, put in positive vernacular, that the limitation will offer greater opportunity for other citizens to be involved in government. Petitioners also take exception to the preamble language that refers to our electoral system now being less free, less competitive and less representative, again explaining others who support term limitations do so for loftier reasons than the ones expressed.

The rules of law governing sufficiency of the ballot title are well-settled. A ballot title must be (1) intelligible, (2) honest, and (3) impartial. Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960). It is not required that the ballot title contain a synopsis of the amendment or statute, but it should be complete enough to convey an intelligible idea of the scope and import of the proposed law. Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952). The ballot title must be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and it must not be tinged with partisan coloring. The Attorney General’s approval of a ballot title raises a presumption as to its sufficiency and only in a clear case should such an approval be held insufficient. See Fletcher v. Bryant, 243 Ark. 864, 422 S.W.2d 698 (1968). Finally, it is settled law that, in determining the sufficiency of a ballot title, this court must be liberal in construing the tenets of Amendment 7. Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990).

In considering petitioners’ arguments in view of the foregoing rules, we are also met with those cases indicating that a preamble or title simply is not a part of a measure. See McMahan v. Bd. of Trustees U. of A., 255 Ark. 108, 499 S.W.2d 56 (1973); Roscoe v. Water and Sewer Imp. Dist. No. 1, 216 Ark. 109, 224 S.W.2d 356 (1949); Oliver v. Southern Trust Co., 138 Ark. 381, 212 S.W. 77 (1919). A title or preamble of an act is in no sense controlling, and is only properly considered if the act itself is ambiguous. McMahan, 255 Ark. at 110, 499 S.W.2d at 57.

Here, petitioners’ concerns regarding the proposed amendment’s preamble are misplaced. In fact, if the preamble had been included, some of its language may have raised more questions in voters’ minds that it resolved. Clearly, the preamble is not a part of the text of the proposed amendment and for this reason alone, we hold its verbiage should not have been included in the amendment’s ballot title.

Petitioners next claim the text of the proposed measure limits the state’s executive officers to two four-year terms “in the same office,” but the ballot title seems to limit an elected official to two four-year terms in the Executive Department. In addition, they argue the voters will be misled by the ballot title language “limiting the number of terms that may be served by members of the House of Representatives to three (3) two-year terms and “by members of the Arkansas Senate to two (2) four-year terms.” In this respect, they complain the title does not reveal these legislative officials might run for representative or senator from a different district so as to avoid the limitations intended for such offices.

We fail to see any merit in petitioners’ arguments. Obviously, the ballot title conveys the clear message that the terms of these designated offices are limited, and we are unable to say the language describing those terms is misleading. The title is not required to be perfect, not is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke.

Petitioners’ most serious contentions concern questions surrounding the constitutionality or validity of the proposed amendments. They say that if the proposed Term Limitation Amendment is unconstitutional and invalid, the proposal would be misleading to the voters and should be stricken from the ballot or the votes cast on the measure should not be counted.

Petitioners first charge that the proposed amendment unlawfully provides that a senator or congressman who has served the specified number of previous terms “shall not be eligible to have his/her name placed on the ballot for election . . . .” Petitioners argue this language conflicts with the Standing Qualifications Clause of the Constitution of the United States. AGR responds stating, first, the measure is not a term limitation amendment, but if it is, second, Arkansas and its people acting as sovereign are within their right to enact such limitations. Third, AGR also claims this court should not reach this issue because, until the measure is passed, any opinion issued would be advisory in nature — a practice this court has steadfastly avoided. Cozad v. State, 303 Ark. 137, 792 S.W.2d 606 (1990); Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986). The Secretary of State joins in AGR’s second and third arguments.

Another argument bearing on the proposed amendment’s validity is raised belatedly by the petitioners when they amended their original petition one day before reply briefs were due in this matter. Petitioners alleged the proposed measure does not contain an enacting clause as required by Amendment 7, and for this additional reason, the proposal should not be initiated. They assert the lack of an enacting clause creates confusion and uncertainty with regard to the precise text that is being proposed.

Both AGR and the Secretary of State object to petitioners raising this enactment issue, saying petitioners are unduly late. Citing ARCP Rule 15(a), they contend they are prejudiced by such unjustified tardiness. AGR and the Secretary of State argue, too, that no enactment clause is required of initiative amendments under Amendment 7, but if such clause is required, the proposed amendment contains a sufficient one.

In trying to consider these constitutional challenges to the proposed amendment’s validity, we are hampered by the fact that none of the parties have attached to or abstracted the amendment in their briefs. In original actions, the parties are required to file abstracts and briefs as in other cases. Ark. Sup. Ct. R. 17. We are aware by reading the parties’ arguments that a copy of the amendment must have been attached as Exhibit A to the petitioners’ original petition, but the petition or exhibit have not been abstracted. Even if the pleading and exhibit had been abstracted, apparently AGR in its answer denied such exhibit was an accurate copy of a part of the initiative petition, including the popular name, ballot title and the text of the amendment. Of course, AGR’s answer also is not abstracted. Petitioners suggest the Secretary of State is competent to admit what petitioners alleged the proposed amendment provides, but for our purposes, to accept that suggestion does little to lay confusion to rest. The Secretary of State admits parts of petitioners’ allegation, but denies that the proposed Term Limitation Amendment does not have a sufficient enacting clause. Also, as discussed above, both AGR and the Secretary of State argue Amendment 7 does not require an enacting clause for initiative amendments, and petitioners, considering time constraints, have been unable to respond to this argument. We simply decline to reach this issue at this time with the confused, abbreviated state of the record being what it is. See Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984).

Nor are we inclined at this stage to decide petitioners’ constitutional challenge to the proposed amendment’s provision that determines or limits a congressman’s or senator’s eligibility to appear on the ballot after having served specified terms. As mentioned earlier, both the Secretary of State and AGR point to a long line of cases where this court has stated that it will not issue advisory opinions.

Petitioners, on the other hand, urge that, if a part or section of the proposed amendment conflicts with the- Qualifications Clauses of the United States Constitution, it is this court’s duty under Amendment 7 to enjoin placement of the amendment on the ballot because voters will not be aware of the constitutional issue involved and would be misled to believe the Amendment, if adopted, would be a validly enacted state law. Petitioners rely in part on the case of Czech, 283 Ark. 457, 459, 677 S.W.2d 833, 835, for the proposition that, under Amendment 7, the validity of a proposed measure may be considered and decided, when it is properly raised, before the election.

We note again that the proposed amendment and the parties’ pleadings are not abstracted for our review, making it difficult to follow the parties’ argument. In addition, our reading of Czeck reflects the binding-arbitration ordinance involved there was clearly contrary to law and should not have been submitted to the electorate. Whether the proposed amendment here contravenes the Qualification Clauses is not as clear, and as a consequence, we are not convinced the amendment should be stricken from the ballot.

In taking a different view, the dissenting opinion relies in part on a 1912 case, Hodges v. Dowdy, 104 Ark. 583, 149 S.W. 656 (1912), which dealt with an initiated special statute that would have served to move the county seat from Fordyce to Princeton. The Hodges case was decided under prior initiative and referendum law that existed before the adoption of Amendment 7. In addition, that case did not involve an issue under the Federal Constitution. In either circumstance, the Hodges case is not precedent in this case.

Petitioners cite the recent case of Stumpf v. Lau, 1992 W.L. 23548 (Nev.) (Sept. 18, 1992), as authority that such term limitation initiatives are unconstitutional and should not appear on a state’s ballot. Stumpf is a split decision which certainly provides no clear-cut answer to the issue here. In fact, in a well-reasoned opinion, the dissenting justices offered considerable research and thought before concluding they believed an initiative measure, placing limits on congressmen and senator terms, should be placed on Nevada’s ballot. See, e.g., Troy Andrew Eid and Jim Kolbe, The New Anit-Federalism: The Constitutionality of State-Imposed Limits on Congressional Terms of Office, 69 U. L. Rev. 1, 8 (1992), and Roderick M. Hills, Jr., A Defense of State Constitutional Limits on Federal Congressional Terms, 53 U. Pitt. L. Rev. 97 (1991).

Undoubtedly, a strong case can be made concerning the Term Limitation Amendment’s invalidity both under Arkansas’s and the United States’ Constitutions, and voters should be aware that their votes for or against this measure may ultimately have value only as an expression of public sentiment on the subject. In short, a future judicial proceeding will be required to decide the Amendment’s validity if it is adopted by the people. If that occurs, the constitutional arguments posited here will then be placed squarely before us and can be decided after due and proper consideration.

For now, we hold the ballot title is sufficient and deny petitioners’ request to remove the Term Limitation Amendment from the ballot. An immediate mandate shall issue.

Corbin, J., not participating.

Robert H. Dudley, Justice,

dissenting. Petitioners filed this original action pursuant to Amendment 7, the Initiative and Referendum Amendment, to the Constitution of the State of Arkansas seeking to enjoin the respondent Secretary of State from placing the proposed “Term Limitation Amendment” to the state constitution on the ballot for the November 3, 1992, general election. At this time, the respondent has placed the issue on the ballot and absentee voting has commenced. Thus, the only relief now available to petitioners is for this court to order that the votes not be counted or considered. I would grant such relief because one part of the proposed amendment is in violation of the Standing Qualifications Clause of the Constitution of the United States, and there is no way this court can excise the unconstitutional part of the proposed state constitutional amendment. When a proposed initiated measure is unconstitutional, it is the duty of this court to enjoin its submission to the people.

I. Duty of This Court

In Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656 (1912), a decision under our prior, but comparable, Initiative and Referendum Amendment, we construed the amendment and the enabling act in existence at that time and concluded that it was the duty of this court to examine the constitutionality of a proposed amendment. The enabling act that we construed in that case is the same in all material parts as the current act, Ark. Code Ann. § 7-9-112 (1987). In that case, the petitioners sought a writ of mandamus to force the Secretary of State to place an unconstitutional proposal on the ballot. We refused and wrote:

The act clearly makes it the duty of the court, on an application for mandamus, to inquire whether the proposed measure falls within the terms of the Constitution as if amended, and, if it does, to compel submission to the people; otherwise to restrain the submission of it to the people. It follows, therefore, that, unless it be found that the measure proposed by the plaintiffs is subject to the initiative power of the people, and that the petition is legally sufficient, according to existing laws, the Secretary of State cannot be compelled to file it and certify the measure out for submission to the people.

Id. at 591, 149 S.W. at 659.

The opinion in that case set out the language of the then current Initiative and Referendum Amendment under which the people “reserved” to themselves the power to amend the state constitution. The present Initiative and Referendum Amendment, Amendment 7, contains the same provision:

The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls. . . .
The first power reserved by the people is the initiative. [Emphasis added.]

The amendment does not confer power; it reserves power. Because the people of this State have never had the power to enact a law contrary to the United States Constitution, they could not reserve such a power. Hodges v. Dawdy, 104 Ark. at 595, 149 S.W. at 660-61. For that reason, we expressly stated that if a proposed measure is unconstitutional it should not be placed on the ballot. Id. That reasoning is just as valid today as it was then.

In Dust v. Riviere, 211 Ark. 1, 4, 638 S.W.2d 663, 665 (1982), we defined the scope of our Initiative and Referendum Amendment as: “The voters of this state essentially have, within constitutional limits, a right to change any law or any provision of our Constitution they deem appropriate through Amendment 7 to the Constitution.” [Emphasis added.]

In Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984), a case squarely on point, the city clerk refused to certify two initiated measures to the election commission because the city attorney doubted the validity of the measures. Suit was filed and the circuit court held that the clerk had improperly exercised her authority, and issued a writ of mandamus. The city appealed and, in reversing and holding the matter should not be placed on the ballot, we wrote:

At the outset the appellees argue that we should permit the measures to be placed on the ballot without first determining their validity. Certainly it is true that a party who resists an initiated petition on grounds such as insufficiency of signatures or improper ballot title is not required to question the validity of the proposed measure. On the other hand, that question may be considered and decided when it is properly raised, even before the election. Proctor v. Hammons, 211 Ark. 247, 640 S.W.2d 800 (1982); Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656 (1912).

We then held that one of the measures was invalid and ordered that it “not be submitted to the electorate, or, to the extent that such a directive may be too late to be effective, that the votes not be counted or considered.’’'’

In Proctor v. Hammons, 277 Ark. 247, 640 S.W.2d 800 (1982), we wrote:

Appellants argue that Amendment 7 to the Constitution, providing for Initiative and Referendum, prohibits a referendum by a municipality or county when such initiative or referendum is contrary to the constitution or any general law of the state. We agree with this statement of the law.

Id. at 250, 640 S.W.2d at 802. We then held that the proposal did not violate state law.

It is axiomatic that there is no power reserved in the people to initiate a state proposal that is in violation of the federal Constitution, and that under our prior interpretations of Amendment 7 and its enabling statutes we will enjoin such an unconstitutional proposal. This construction of the statute and of Amendment 7 has become “as much a part of the statute as if written in it.” Merchants Transfer and Warehouse Co. v. Gates, 180 Ark. 96, 21 S.W.2d 406 (1929). If stare decisis were not a controlling precept of statutory construction, this court would, in effect, be sitting as a second General Assembly. See Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977).

The intervenors, who are the sponsors of the proposal, argue that we should not determine the constitutionality of the proposal because we would be issuing only an advisory opinion and we do not issue mere advisory opinions. The majority opinion adopts that specious rationale. Many times we have said that we will restrain a ballot title, or proposed issue, that misleads the voters. Each of the cases cited above is authority that a justiciable controversy exists at the time of certification, and not just after the people have voted. It is incongruous to think that this court must wait to act until after voters have been misled. The intervenors also suggest that we should wait until the Supreme Court of the United States decides the issue. Again, the argument may at first blush seem attractive, but is not so in reality. State courts frequently must decide issues that are governed by the United Stated Constitution, and at times they must do so before there is a decision by the Supreme Court. A large percentage of our criminal cases are governed by federal issues, and at times we must decide such an issue before the Supreme Court rules on some particular constitutional aspect of the criminal law. For example, this court had to decide initially whether “death qualified” juries violated a defendant’s Sixth Amendment right. We held that such juries were constitutionally valid. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983). A federal district court and a sharply divided circuit court of appeals held to the contrary, Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983) and Grigsby v. Mabry, 758 F. 2d 226 (8th Cir. 1985), and eventually the question was decided by the Supreme Court, and it agreed with the result of our holding. Lockhart v. McCree, 476 U.S. 162 (1986). Thus, at times, it is necessary for us to decide federal constitutional issues before the Supreme Court does. In sum, our cases and our dual court system require that we decide whether the proposed amendment is constitutionally valid, and I dissent from the majority opinion’s refusal to do so.

The result of this case is incongruous in still another manner. We have a litany of cases which recite that the popular name or ballot title of an initiated proposal must not be misleading. See, e.g., Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960). We have often said a ballot title or popular name must be “honest.” See, e.g., Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984). Yet, under the precedent of the majority opinion, the unfair political device of “logrolling” is authorized. A hypothetical example is as follows: Suppose a political action group wanted to propose an initiated act that required judges, rather than juries, to fix sentences for convicted felons, but the group knew that the voters would be reluctant to take sentencing of criminals away from the citizens. The group would add to the proposed initiative a provision that criminals could not take the Fifth Amendment. This second provision, even though blatantly unconstitutional, might be popular enough to give the sentencing part of the “criminal procedure” initiative enough votes to pass. Under today’s precedent, this court could not hear a contest of the issue, and the public would be mislead into voting for the sentencing provision.

In addition, the result of the majority opinion seems unfair to both the supporters and opponents of the current proposal and to those elected officials who might be affected. Both sides must now spend resources on the issue, and that is an unnecessary waste of those resources. The proponents of the proposed amendment must campaign under the cloud of constitutional invalidity. If the measure passes, incumbent office holders will have to campaign under the cloud of ineligibility and then those individuals might have to bear the expense of a lawsuit. I would not leave both sides in such suspension. Instead, I would follow our cases and decide the issue.

II. Validity of the Term Limitation Amendment.

The proposed amendment to the state constitution is invalid for three basic reasons. First, a review of the long history of term limitation compels the conclusion that the framers rejected the idea in drafting the Constitution. Second, the imposition of term limitations upon members of the United States Senate and the House of Representatives would add a qualification not mentioned in the Constitution — lack of incumbency — to the membership requirements that are fixed by the Constitution and the several states do not have this power. Third, allowing a several state to create qualifications for national officeholders is antithetical to both the supremacy concept and to republican values.

The American Colonists were well aware of the shortcomings of the “imperial parliament” of King George III, for they were its victims. They knew that the House of Commons existed in name only and that the vast majority of the British people would be denied membership even if elected because of the House of Commons self-proclaimed right to refuse to seat even duly elected members without justification. Eid & Kolbe, The New Anti-Federalism: The Constitutionality of The State-Imposed Limits on Congressional Terms of Office, 69 Denv. U. L. Rev. 1, 8 (1992). A reform movement in England in the early 1770’s sought to limit the seven-year parliamentary session. Id. at 11. George III consolidated his power and the reform movement languished, but the failure of that reform movement had profound consequences for the Colonists, not just in forming our own country, but in some of the governing provisions. Id.

In 1777, the Articles of Confederation limited congressional delegates to three years of service, and by 1784 a handful of members were ineligible for re-election. Rakove, The Beginnings of National Politics: An Interpretative History of the Continental Congress 218 (1979); Eid & Kolbe, supra, at 12. The Constitution, which replaced the Articles of 1789, did not incorporate any term restrictions on incumbency. This was not some mere inadvertent omission. Term limits were discussed over a period of years and were discussed in detail in the closed-door negotiations at the Convention in Philadelphia, and these discussions were replayed in the public press. Eid & Kolbe, supra, at 13.

The original draft of the Constitution, the so-called Virginia Plan offered by Edmund Randolph, declared U. S. Representatives “to be incapable of re-election for the space of_after the expiration of their term of service. . . .” James Madison, Notes of Debates in the Federal Convention of 1787, in The Anti-Federalist Papers and The Constitutional Convention Debates, at 37 (Ketcham ed. 1986).

The campaign against ratifying the Constitution was already underway when the Convention met in May 1787. The Anti-Federalists publicly condemned the proposed Constitution for its failure to forbid incumbent members of Congress from seeking re-election. The Anti-Federalist pamphleteer Cincinnatus argued that Senators, like the President, should be limited to a single term. Cincinnatus, Anti-Federalist No. 64 In The Anti-Federalist Papers 188 (Martin Borden ed. 1965) cited in Eid and Kolbe, supra, at 15. Elbridge Gerry of Massachusetts argued both at the Convention and in the press that unless congressional terms were limited, nothing could prevent “the perpetuity of office in the same hands for life.” Gerry, Replies to the Strictures of ‘A Landlord’’ (1787) quoted in Eid & Kolbe, supra, at 15. See also Smith, Speeches of Melancton Smith in The Anti-Federalist Papers, supra, at 350. It is striking that these critics understood the Constitution to exclude term limits for members of Congress. There is no indication that they believed the states retained the power to impose such restrictions on federal officeholders. On the contrary, when William Findley urged the citizens of Philadelphia to reject the proposed Constitution, he lamented: “Rotation, that noble prerogative of liberty, is entirely excluded from the new system of government and the great men may and probably will be continued in office during their lives.” [Emphasis added.] William Findley, Letter of an Officer of the Late Continental Army, Nov. 3, 1787 quoted in Eid & Kolbe, supra, at 16. Findley, like others in the Anti-Federalist camp, believed the Constitution was flawed because the republic it created “entirely excluded” term limitation, not just for the office of President, but for members of Congress as well.

On the other side, the Federalists also thought that the members of the United States Senate and House of Representatives would be eligible for re-election under the new system of government. In The Federalist No. 53, James Madison not only predicted that some House members would be returned to office repeatedly, but argued that their re-election would benefit the institution as a whole:

A few of the members, as happens in all such assemblies, will possess superior talents; will by frequent re-elections, become members of long standing; will be thoroughly masters of the public business, and perhaps not unwilling to avail themselves of those advantages. The greater the proportion of new members, and the less the information of the bulk of the members, the more apt will they be to fall into the snares that may be laid for them.

The Federalist No. 53, at 335 (James Madison) (Rossiter ed. 1961).

In The Federalist No. 60, at 371 (Rossiter ed. 1961), Alexander Hamilton noted that Congress’s membership qualifications “are defined and fixed in the Constitution, they are unalterable by the legislature.”

Madison wrote that the minimal requirements of age, residency, and citizenship were to be the sole criteria for congressional service, as follows:

Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession, is permitted to fetter the judgment or disappoint the inclination of the people.

The Federalist No. 57, at 351 (James Madison) (Rossiter ed. 1961).

Refusing to disqualify incumbents from re-election was consistent with the Federalists’ overreaching vision of Congress as a national legislature that would do something more than simply represent state and local interests, as the Continental Congress had done under the Articles. The Federalists recognized the possible dangers of congressional incumbency, but decided that the benefits in the form of institutional stability and expertise outweighed the risks. They concluded that the corrupt tendencies of individual incumbents could be controlled by requiring all federal legislators to face their electors with reasonable frequency. Eid & Kolbe, supra, at 17.

The Convention debate over two-year and six-year terms for Representatives and Senators, respectively, was reminiscent of that which had taken place in England a few years earlier over limiting the duration of parliamentary terms. Indeed, in rejecting the Anti-Federalists’ claim that “where annual elections end, tyranny begins,” Madison contrasted the Constitution’s biennial elections for Representatives with the seven-year sessions of the British House of Commons:

As it is essential to liberty that the government in general should have a common interest with the people so it is particularly essential that. . . [the House of Representatives] should have an immediate dependence on and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. But what particular degree of frequency may be absolutely necessary for the purpose does not appear to be susceptible of any precise calculation. . . . [I]f we may argue from the degree of liberty retained even under septennial elections, and all the other vicious ingredients in the [British] parliamentary Constitution, we cannot doubt . . . that biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the House of Representatives on their constituents.

The Federalist No. 52, at 327-28 (James Madison) (Rossiter ed. 1961) (emphasis supplied).

As the convention drew to a close, the Anti-Federalists’ campaign for term limitation foundered. Randolph’s Virginia Plan expressly limited Representatives to a single term, but the delegates voted to eliminate this provision. Gerry and others demanded term limits for Senators, but they too were unsuccessful. Later Convention debates further indicate that both the Federalists and the Anti-Federalists understood the final draft of the Constitution to exclude term limits for members of Congress. Eid & Kolbe, supra, at 19.

The founders’ perspective of the matter of term limits for the members of Congress was settled. Those who argue, as do the intervenors in this case, that the founders failed to speak on this issue simply must deny the thoroughness and decisiveness of the term limit debate, and they must deny that the founders deliberately rejected term limits for Congress.

After failing to enact congressional term limits in the text of the original Constitution, Anti-Federalists tried to include such restrictions in the Bill of Rights. When the first Congress convened in 1789, Representative Thomas Tucker of South Carolina introduced term limitation proposals for both the Senate and the House. 1 Annals of Cong. 790 (Joseph Gales ed. 1789) cited in Eid & Kolbe, supra, at 21. The House never voted on either of the measures.

The intervenors argue that the Constitution does not expressly prevent a state from imposing such a restriction; that the Tenth Amendment, a part of the Bill of Rights, provides that “ [t] he powers not delegated to the United Stated by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People;” and, therefore, the State has retained the power to limit terms through the Tenth Amendment. The architects of the Constitution plainly intended the opposite result. From the outset Madison and his allies were determined that the Standing Qualifications Clauses contained in Article I, Sections 2 and 3 would be the exclusive list of qualifications for congressional service. Those sections provide: “No person shall be a representative who shall not have attained the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen,” and, “No person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of the state for which he shall be chosen.” The imposition of term limitations without a federal constitutional amendment would add an unenumerated qualification — lack of incumbency — to the membership requirements that are fixed by the Constitution.

The founders’ decision to make the Standing Qualifications Clauses the sole criteria for congressional membership is especially striking given their insistence that states be allowed to set their own restrictions on who could vote in federal elections. Article I, Section 2 provides that “the electors of each State shall have the Qualifications requisite of the most numerous branch of the State Legislature.” The states have frequently used this power to disqualify women, blacks, and others from voting while enforcing minimum property ownership requirements reminiscent of those in England. In contrast, the Constitution says nothing about letting states impose similar qualifications on federal officeholders. This silence was the product of one of the founders’ greatest debates: whether to restrict service in the national legislature to an elite few. The majority of delegates chose to reject an array of proposed membership qualifications — mostly pertaining to wealth — before approving the relatively minimal standing qualifications of age, residency and citizenship that are found in Article I. Eid & Kolbe, supra, at 23. A clear understanding of the founders’ intentions leads to the inescapable conclusion that additions to the Standing Qualifications Clauses can be achieved only by amending the text of the Constitution, as was done with the twenty-second Amendment, which limits the President to eight years of service.

In the two centuries since the Philadelphia Convention, both Congress and the Supreme Court have generally construed the Standing Qualifications Clauses to be the exclusive list of membership requirements for members of Congress. In Powell v. McCormack, 395 U.S. 486 (1969), the Supreme Court held that Congress could not exclude a duly elected member of Congress who otherwise satisfies the age, residency, and citizenship requirements contained in Article I. The Court based its decision on an exhaustive review of the “relevant historical materials.” Id. at 522. These materials were not limited to qualifications created by Congress. Rather, the Court also cited the John Wilks case and the Convention debates, to support its expansive conclusion that the standing qualifications are fixed by the Constitution. The case makes it clear that Congress cannot impose restrictions, beyond those contained in Article I, upon its membership without violating the Standing Qualifications Clauses. The holding should apply with equal force to the states.

While the Supreme Court has not squarely addressed the issue of restrictions in addition to those of age, residency and citizenship, the House of Representatives addressed the issue in a membership dispute over an 1802 Maryland state law that added an additional residency requirement. Although the final House resolution did not contain a report giving the reason for its vote, the overwhelming majority of House members felt that the additional residency requirement violated the Constitution. See Eid & Kolbe, supra, at 33 - 38. Various reasons were advanced: Allowing a state to create qualifications for national officeholder was antithetical to both federal supremacy and republican values; members of Congress were federal officers, not merely agents of the states; when a state claims the right to restrict the franchise in a federal election it constitutes a direct violation of the federal constitutional supremacy; and the founders formed not a government of states, but a national government of the people.

Thomas Jefferson was uncertain whether the House’s decision meant that the states were absolutely forbidden to impose qualifications on their federal representatives. Letter form Thomas Jefferson to Joseph C. Cabell (Jan. 31, 1814) in Eid & Kolbe, supra, at 40. He thought that the Standing Qualifications Clauses could plausibly be understood as the minimum, but not exclusive, set of requirements for congressional service when read in light of the Tenth Amendment. Jefferson’s doubts about the House’s decision were in turn questioned by Justice Joseph Story, one of the greatest constitutional scholars of the era. He explained that it was the Constitutional Convention, and not the states, that created the national government. Consequently, Congress’ authority can only come from the Constitution itself. Like other federal officeholders, members of Congress owe their existence to the people, whose delegates created the Constitution. He wrote:

The truth is, that the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the Constitution does not delegate to them. They have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a president. Each is an officer of the Union, deriving his powers and qualifications from the Constitution, and neither created by, dependent upon, nor controllable by, the states. It is no original prerogative of state power to appoint a representative, a senator, or a president for the Union. Those officers owe their existence and functions to the united voice of the whole, not a portion of, the people. Before a state can assert the right, it must show, that the Constitution has delegated and recognized it. No state can say, that it has reserved, what it never possessed.

Joseph Story, 2 Commentaries on the Constitution § 626 (Roth-man ed. 1991) (emphasis added).

The intervenors in this case also argue that the Times, Places and Manner Clause of Article I, Section 4, which permits states to establish the procedures for electing Senators and Representatives, permits states to prevent incumbents from seeking reelection. The argument is based on a subtle, and perhaps beguiling, difference between the proposed ballot title and the text of the proposed amendment. The ballot title is “Term Limitation Amendment,” but the full text of the proposal does not limit terms as such. Instead, it states that a Senator or Congressman who has served the specified number of previous terms “shall not be eligible to have his/her name placed on the ballot for election . . . from Arkansas.” Thus, the intervenors argue that theirs is not a term limitation amendment, but instead is merely a procedure for electing members of Congress, and, therefore, may be governed by the state under the Times, Places and Manner Clause.

The argument is based upon the fallacious assumption that the Standing Qualifications Clauses are not the exclusive criteria for Congressional service. Moreover, it is beyond doubt that the Times, Places and Manner Clause lets states regulate the procedural machinery of federal elections, but it does not empower states to deny congressional membership to persons who otherwise meet the requirements of the Standing Qualifications Clauses. The Standing Qualifications Clauses are substantive rules, defining who is eligible to serve in Congress. In contrast, the Times, Places and Manner Clause allows states to draft the procedure for their election. These clauses are part of a coherent design; each must be read in the context of the other. The intervenors’ interpretation would destroy their syntax.

NOVEMBER 2, 1992

Parenthetically, if a candidate were qualified under the Standing Qualifications Clauses, but his name could not be placed on the ballot, he could run only as a write-in candidate. In Anderson v. Celebrezze, 460 U.S. 780 (1983), the Court footnoted that the opportunity for write-in votes “is not an adequate substitute for having the candidate’s name appear on the printed ballot.”

In conclusion, the idea of term limitations is not new. It was discussed in England and in the colonies. The Articles of Confederation limited congressional delegates to three years of service. The concept was debated during the Constitutional Convention and also during the subsequent period of ratification. The historical evidence is overwhelming that the requirements for membership in Congress are those set out in the Standing Qualifications Clauses. No other requirements can be validly added by individual states. Thus, the proposed “Term Limitation Amendment” is unconstitutional.

I dissent from the majority opinion, which holds that a state constitutional amendment that is in violation of the federal Constitution should be allowed to remain on the ballot.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Friday, Eldredge & Clark, by: Robert S. Shafer, and T. Wesley Holmes, for petitioners.

Winston Bryant, Att’y Gen., by: Jeffrey A. Bell, Deputy Att’y Gen., for respondent Secretary of State.

Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by: Sam Hilburn, for intervenor-respondent Arkansas for Governmental Reform, Inc.

.

Per Curiam.

Petitioners’ petition for rehearing is moot since immediate mandate was issued when this court’s opinion was handed down. This procedure is followed in election cases because time constraints preclude ordinary briefing and motion schedules.

This per curiam will not consider the merits of the matter, but addresses only the procedural matter contained in petitioners’ rehearing petition and their suggestion that Rule 17 was invoked by the majority court in an uneven manner. Actually, it was the petitioners’ burden, not the respondent’s or intervenor’s, to show error. Whether respondent or intervenor abstracted any part of the record does not eliminate petitioners’ duty to do so.

Even though petitioners failed to abstract the proposed amendment, the court did its best to address all of the petitioners’ issues, and in fact, reached them all except the two bearing on the proposed measure’s validity. The alternative was to dismiss petitioners’ case without reaching any of their issues. We avoided such choice.

Considering the text of the proposed measure was in question when determining its validity, the court obviously was hampered in reviewing the two issues urged by the petitioners and argued by all parties. In sum, the court, while not required to do so, reached every issue it could reasonably address with the proposed amendment not having been abstracted, as is clearly required under Rule 17. In sum, we accepted much set out in the argument of petitioners’ brief which was not supported by an abstract in order to reach issues in this case because it was one of public significance.

Finally, we would note that the court did not reach the merits of the .proposed amendment’s validity for two reasons, not one. As clearly stated, the court, too, declined to offer an advisory opinion on the constitutionality of the proposed measure. The court chose not to be rushed to a decision on a serious issue where no clear or compelling precedent had been offered showing the proposed measure’s unconstitutionality. This reason, of course, had nothing to do with any failure to abstract the record.

Corbin, J., not participating.

       Arkansas, of course, has seven separate constitutional officers in its Executive Department and each officer serves a four-year term without any limitations.


author: Steele Hays, Justice.

text:
    Bob PORTER, on Behalf of Himself and All Other Similarly Situated; and Arkansas Executive Committee v. W.J. “Bill” McCUEN, Secretary of State Coalition for a Healthier Arkansas, Inc.
    92-940
    839 S.W.2d 521
    Supreme Court of Arkansas
    Opinion delivered October 21, 1992

      Friday, Eldredge & Clark, by: Paul Benham III, for petitioners.

      Winston Bryant, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for respondent.

      Mitchell, Blackstock & Simmons, by: Clayton R. Blackstock, for intervening respondent.
   Steele Hays, Justice.

This is the second phase of an original action attacking the proposed initiated act entitled “Cigarette and Tobacco Products Act.” Petitioners are Bob Porter, on behalf of himself and all others similarly situated, and Arkansas Executive Committee. Respondents are W.J. “Bill” McCuen, Secretary of State, and Coalition for a Healthier Arkansas, Inc. (CHAR), Intervenor.

Petitioners’ challenge is two-fold: they contend the ballot title is misleading and defective (Count I) and that numerous signatures on the initiative petitions are invalid (Count II). Petitioners sought the appointment of a Master to make findings on disputed issues of fact and an order invalidating the proposal.

We ordered expedited proceedings, appointed the Honorable Gerald P. Brown as Master and severed the ballot title issue, solely a question of law, from the factual issues involving the signatures and the initiative petitions.

The parties proceeded promptly to submit briefs on the ballot title issue while they were presenting evidence to the Master. On October 9, 1992, we issued our decision with respect to the ballot title, holding that it was not misleading or otherwise defective and denying the petition as to that part. The arguments and our reasoning may be found in Porter, et al. v. McCuen, et al., 310 Ark. 562, 839 S.W.2d 512 (1992).

We turn now to the Report of Master, whose findings we must sustain unless they are found to be clearly erroneous. The report cites a number of tenets which govern the procedures under Amendment 7, part of which reads:

Only legal votes shall be counted upon petitions. Petitions may be circulated and presented in part, but each part of any petition shall have attached thereto the affidavit of the person circulating the same, that all signatures thereon were made in the presence of the affiant, and that to the best of the affiant’s knowledge and belief, each signature is genuine, and that the person signing is a legal voter, and no other affidavit or verification shall be required to establish the genuineness of such signatures.

The initiative and referendum amendment must be liberally construed in order to effectuate its purposes and only substantial compliance with the amendment is required. Reeves v. Smith, 190 Ark. 213, 78 S.W.2d 72 (1935).

In Sturdy v. Hall, 201 Ark. 38, 143 S.W.2d 547 (1940), this court held that the circulator or canvasser of an initiative petition is comparable to an election official. The circulator of the petition is the sole election officer in whose presence the citizen exercises his/her right to sign the petition. The circulator must make an affidavit that each signature is genuine, and if this affidavit is shown to be false, the petition loses its prima facie verity.

In Ellis v. Hall, 219 Ark. 869, 245 S.W.2d 223 (1952), we held that where fraud on the canvasser’s part is shown, the prima facie case made with the affidavit of the circulator in favor of genuineness of the petition is overcome, putting the burden of proof upon the defendant to establish the genuineness of each signature.

In Pafford v. State, 217 Ark. 734, 233 S.W.2d 72 (1950), we held that one who attacks a petition cannot destroy the verity of the circulator’s affidavit merely by proving that at least one signature is not genuine. The plaintiff must also adduce proof to show that the falsity of the canvasser’s affidavit was conscious, rather than inadvertent.

Ark. Code Ann. § 7-9-108(b) (Supp. 1991), provides that each part of any initiative petition shall have attached thereto the affidavit of the person who circulated the petition to the effect that all signatures appearing thereon are made in the presence of the affiant and that to the best of the affiant’s knowledge and belief each signature is genuine and that the person so signing is a legal voter.

Ark. Code Ann. § 7-9-109 (Supp. 1991), after setting forth the form of verification, provides that the forms are not mandatory, and if substantially followed, shall be sufficient, disregarding clerical and merely technical errors.

In Kirk v. Hartlieb, 193 Ark. 37, 97 S.W.2d 434 (1936), it was held that an affidavit is a written statement which is affirmed or sworn to by some person legally authorized to administer an oath or affirmation. The process requires concurrent action on the part of the affiant and the authorized officer.

Ark. Code Ann. § 21-14-111 (Supp. 1991), provides in part:

(a) It is unlawful for any notary public to witness any signature on any instrument unless the notary either: 1) witnesses the signing of the instrument and personally knows the signer, or is presented proof of the identity of the signer; or 2) recognizes the signature of the signer by virtue of familiarity with the signature.

The Master heard testimony over three days from twenty-four witnesses. The Master found that hundreds of incomplete petitions were turned in by canvassers. In some instances the petitions had been signed by the canvasser but not notarized, in other instances the petitions were neither signed nor notarized. Ms. Paula Jameson testified that she signed petitions which other canvassers had circulated but had failed to sign. These petitions were then notarized by Ms. Lynetta Anderson at Ms. Jameson’s request. Altogether Ms. Jameson signed “about 130 petitions” as canvasser. Ms. Anderson testified she notarized over 100 petitions at Ms. Jameson’s request which a canvasser had signed but failed to have notarized. Ms. Jo Ann Skinner testified that she notarized about 50 petitions without the canvasser appearing before her.

From the testimony of Dr. William Jones and Mr. Robert Sells, the Master found that numbers of petitions were signed by Dr. Jones and Mr. Sells as canvassers which were not signed by voters in the presence of either individual. Mr. Sells testified he took blank petitions to Sunday School teachers at Pulaski Heights Methodist Church and asked them to collect signatures which he later retrieved and signed as canvasser. At Dr. Jone’s office signatures were collected in the reception room without Dr. Jones being present. There were other discrepancies in the methods by which petitions were circulated which we need not detail in this opinion.

From the testimony, the Master found that the prima facie verity of 100 petitions notarized by Ms. Andreson was destroyed because the canvassers, whom she did not know, did not appear before her. Those petitions contained 1,771 signatures. The Master found that the burden of proof was thereby shifted to the intervenors to establish the genuineness of those signatures. The same was true of 45 petitions notarized by Ms. Skinner, by which the verity of 772 signatures was destroyed. On similar grounds, 22 additional petitions were challenged rendering 188 signatures suspect.

Based on expert testimony the Master determined that 365 signatures were invalid, having been signed by someone other than the person whose name appeared. The bulk of these signatures appear to have been a case of one spouse signing the name of the other. In all, the Master found that 3,095 signatures were invalid, thus the petitions fell below the needed 55,713 by 2,458 signatures.

The efforts of the Intervener to rehabilitate some of the petitions by introducing the voter registration cards was found by the Master to be insufficient.

The Attorney General entreats us not to impose too rigid a standard of compliance with the requirement that signatures be obtained “in the presence” of the person circulating the petition. We see no need to attempt a definitive analysis of that term. Suffice it to say that where the signatures are gathered in areas and places while the canvasser is neither physically or proximately present, as found by the Master in this case, substantial compliance is lacking. The term “in the presence of’ was recently considered in Parks v. Taylor, 283 Ark. 486, 678 S.W.2d 766 (1984), where we wrote:

The other issue before us is the trial court’s finding which threw out entirely several petitions because the affiant did not see the attestants sign. The petitioners claim that the chancellor was wrong because in some instances the affiants merely said that they did not actually see all the persons sign in their presence. Conceding that fact, we cannot find fault with the chancellor’s action. Amendment 7 to the Arkansas Constitution provides: “Petitions may be circulated and presented in parts, but each part of any petition shall have attached thereto, the affidavit of the persons circulating the same, that all signatures hereon were made in the presence of the affiant. ...” [Emphasis added.]

We have considered the Respondents’ arguments carefully and are compelled to hold that the findings of the Master have not been shown to be clearly erroneous.

The petition is granted and an immediate mandate ordered, directing that the Cigarette and Tobacco Products Act be removed from the ballot, or, if that is no longer reasonably possible, the votes not be counted or considered.

Newbern, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Luther Oneal SUTTER, II v. Ed KING, Sheriff of Johnson County, His Agents, and His Securities
    92-467
    839 S.W.2d 218
    Supreme Court of Arkansas
    Opinion delivered October 26, 1992

      Luther Sutter, for appellant.

      Ralph C. Ohm and David H. White, for appellees.
   Jack Holt, Jr., Chief Justice.

Luther Oneal Sutter, II, pro se, brings this appeal to this court under Ark. Sup. Ct. R. 29(1)(c). We dismiss it because a denial of his motion for summary judgment by the trial court is not a final, appealable order as required by Ark. R. App. P. 2(a).

Luther Oneal Sutter, II (Sutter), sought to collect a judgment of $32,376.26 he claimed as assignee of his father, Dr. Luther Oneal Sutter, of Chatsworth, Georgia, who in turn was assignee of First National Bank of Chatsworth, Georgia, which had obtained judgment against Boyce and Sue West of Johnson County, Arkansas.

Mr. Sutter alleges that he followed the statutory procedure to obtain an execution on this judgment by the Sheriff of Johnson County, Ed King, but that because Sheriff King failed to return service in the prescribed time period, he missed the chance to collect the judgment before the Wests filed bankruptcy on November 15, 1991, and that he is entitled to judgment against Sheriff King.

Mr. Sutter sought to collect the judgment from the Sheriff King under Ark. Code Ann. 16-65-202(b)(1) (1987):

(b) Judgments shall be rendered for plaintiffs in the following cases against the sheriff, coroner, or constable receiving or executing the writ:
(1) For failing to return an execution; the amount of the judgment on which it was issued including all the costs and ten percent (10%) thereon.

In response to a motion for summary judgment filed by Mr. Sutter, the trial court entered an order stating:

Now on this 24th day of January, 1992, is presented to the Court the Verified Motion for Summary Judgment and Brief in Support Thereof, and from said motion, the response thereto, and other matters before the Court, the Court does hereby deny said motion.

This appeal followed.

We reaffirm our prior holdings that a denial of a summary judgment is not a final, appealable order and dismiss this appeal. Ark. R. App. P. 2; Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); Rick’s Pro Dive 'N Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991); Malone & Hyde, Inc. v. West & Co., 300 Ark. 435, 780 S.W.2d 13 (1989); Medical & Dental Credit Bureau, Inc. v. Lake Hamilton Bible Camp & Conference Grounds, 291 Ark. 353, 724 S.W.2d 477 (1987); daggers v. Zolliecoffer, 290 Ark. 250, 718 S.W.2d 441 (1986); Roberts Enters., Inc. v. Arkansas State Hwy. Comm’n, 277 Ark. 25, 638 S.W.2d 675 (1982).

Appeal dismissed.


text:
    THOMAS PETROLEUM, INC. v. CITY OF WEST HELENA and City of West Helena Planning Comm’n
    91-329
    839 S.W.2d 523
    Supreme Court of Arkansas
    Opinion delivered October 26, 1992

      Daggett, Van Dover & Donovan, by: Joe R. Perry, for appellant.

      Schieffler Law Firm, by: Edward H. Schieffler, for appellees.
   Jack Holt, Jr., Chief Justice.

This is an appeal from the Phillips County Chancery Court’s order approving the actions of the City of West Helena in denying an application to rezone real property. Appellant Thomas Petroleum, Inc. (Thomas), by its owners Jack and Alice Thomas, petitioned the Planning Commission of West Helena, Arkansas, to rezone their property on which the Richmond Hill Conoco Station was located, from “Residential A” (R-A) to “Highway-Commercial” (H-C). Apparently, Thomas wanted to raze the existing building and construct a new building to accommodate both a convenience store and its service station.

The Planning Commission held a public hearing, heard testimony from both Thomas and the neighbors residing near the service station, and unanimously voted to deny the petition to rezone. Residents in the area were opposed to the change in the use of the property. Thomas appealed to the West Helena City Council, where the petition was again denied. Thomas then filed a complaint in Phillips County Chancery Court seeking an order declaring the actions of the Planning Commission “illegal” and changing the zoning of the property. The chancellor found the Planning Commission did not act in an arbitrary, capricious, or unreasonable manner when it refused to rezone the property and therefore denied Thomas’ complaint.

The Richmond Hill Conoco Station, located in West Helena, has operated as a service station since at least the 1930’s. Mr. Thomas purchased the station in 1970 and has continued to operate it. Evidence at the hearing in chancery revealed that this property had been zoned residential since 1961. Mr. Thomas knew the parcel was zoned residential when he purchased the business and that he would be entitled to continue its operation in its present form under city zoning ordinances as a “non-conforming use.”

On appeal, Thomas and the City of West Helena bring to discussion and labor over the issue of whether the tearing down of the existing structure and building of a service station and convenience store is a permissible extension of Mr. Thomas’ nonconforming use under the City’s zoning ordinances. However, their arguments are of no moment, as this issue was not addressed by the trial court.

The sole question before the trial court, was whether or not the City of West Helena was acting in an arbitrary, capricious or unreasonable manner in refusing to rezone Mr. Thomas’ property from “Residential A” (R-A) to “Highway-Commercial” (H-C). See City of Little Rick v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981). The parties’ arguments concerning extensions or non-extensions of non-conforming use have no bearing in this regard.

When we review the decree of a chancery court denying rezoning, the decree will be affirmed if the findings of fact are not clearly against the preponderance of the evidence. Tanner v. City of Green Forest, 302 Ark. 170, 788 S.W.2d 727 (1990); City of Little Rock v. Breeding, supra. In deciding this question, there is a well-established presumption that the city board or legislative body acted in a reasonable manner when they either zone or refuse to zone property, and the burden is on the landowner seeking rezoning to show otherwise. Tanner, supra.

In the present case, as in Tanner, several factors were relied on by the chancellor in making his decision. The chancellor embraced in his order the six reasons for turning down the request for rezoning found in the minutes of the Planning Commission:

(1) Increased risk of traffic accidents. This location is a dangerous portion of U.S. Highway 49B. A convenience store would encourage school children to cross the highway in this vicinity thereby increasing the risk of death or serious bodily harm. This facility is located in the vicinity of three (3) different schools — Woodruff Elementary School, Beechcrest Elementary School, and Central High School.
(2) Potential for criminal activity associated with a convenience store.
(3) Increased litter.
(4) Possibility for sale of alcoholic beverages in the residential area, which includes Woodruff Elementary School, Beechcrest Elementary School, and Central High School. ABC regulations would permit beer sales if sought by the petitioner or their successors.
(5) Opposition by a large majority of the citizens in the neighborhood. Many attended the public hearing and forty-four (44) signed a petition opposing the request for rezoning.
(6) The need to maintain consistent zoning area, and not to set a precedent of spot zoning. This property is in the middle of Zone R-A (all of the surrounding property is zoned R-A for single family dwellings).

Additionally, the chancellor relied upon the fact that there was a hearing where Thomas presented his proposal, the property was entirely surrounded by a residential area, and that the residents objected both by petition and at the hearing.

In short, Thomas failed to rebut the presumption that the City acted in a reasonable manner and based on our review of the record and the proceedings at the hearing, there was ample evidence to support the chancellor’s decision that the City of West Helena did not act in an arbitrary, capricious, or unreasonable way.

The chancellor’s findings were not clearly against the preponderance of the evidence.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Arnold J. McCONAUGHY v. A. L. LOCKHART
    92-427
    840 S.W.2d 166
    Supreme Court of Arkansas
    Opinion delivered October 26, 1992

      Arnold J. McConaughy, Pro Se, for petitioner.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for respondent.
   Robert H. Dudley, Justice.

In 1989, the petitioner was convicted of robbery and theft of property and was sentenced to the penitentiary as a habitual offender. We affirmed. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). In 1991, he filed a petition for a writ of habeas corpus. The circuit court ruled that the facts pleaded did not state a ground for the issuance of the writ and denied the petition. While petitioner “appeals” this decision, the proper manner to bring up review of such proceedings is by writ of certiorari. See City of Clinton v. Jones, 302 Ark. 109, 787 S.W.2d 242 (1990). However, we will treat such an appeal as a matter to be reviewed by certiorari. As such, we deny the writ of certiorari.

We have repeatedly held that a writ of habeas corpus will issue only if the commitment was invalid on its face or the committing court lacked jurisdiction. See, e.g., Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). The petitioner first asks us to extend the scope of relief available by writ of habeas corpus. We have recently declined to do so, Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 484 (1989), and see no reason to reverse ourselves. Petitioner next argues that he did, in fact, allege lack of jurisdiction in the committing court because he alleged that he was charged by information rather than by indictment. We have repeatedly held that an information is a valid charging instrument, see, e.g., Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988), and this argument is not cognizable by habeas corpus. Griswold v. Lockhart, 308 Ark. 265, 822 S.W.2d 388 (1992).

Petitioner argues that his trial counsel failed to adequately defend him because counsel did not bring up petitioner’s past mental problems. Ineffective assistance of counsel claims are not cognizable by habeas corpus. Gonzales v. Evans, 308 Ark. 264, 822 S.W.2d 390 (1992). He next argues that a delay in his commitment to the State Hospital so prejudiced the result of his mental evaluation that he was denied a fair trial. A writ of habeas corpus will not issue to correct errors or irregularities that occurred at trial. Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).

Writ denied.


author: David Newbern, Justice.

text:
    Willie Rayburn REYNOLDS v. STATE of Arkansas
    CR 92-722
    840 S.W.2d 795
    Supreme Court of Arkansas
    Opinion delivered October 26, 1992

      William R. Simpson, Jr., Public Defender and Thomas B. Devine III, Deputy Public Defender by: Phillip Hendry, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Willie Rayburn Reynolds, the appellant, was convicted of capital murder and sentenced as an habitual offender to life imprisonment without parole. His sole point of appeal is that the Trial Court failed to rule on his suggestion that he was not competent to stand trial, citing Robertson v. State, 298 Ark. 131, 765 S.W.2d 936 (1989). We affirm the conviction.

Reynolds was arrested shortly after the body of an elderly man bludgeoned to death with a clawhammer was found. He gave a statement that he acted in self-defense. He pleaded not guilty by reason of mental defect in November of 1989 and was committed for evaluation in March of 1990. At that time he was found unfit to proceed with trial because he was unable to assist his attorney in the preparation of a defense.

Reynolds was treated and found fit to proceed in November of 1990. A hearing was held on Reynolds’ ability to assist in his defense which resulted in the Court finding him fit and ordering the trial to proceed. Another request for a mental health evaluation was made in January of 1991 and a second evaluation performed. Following a second sanity hearing on October 4, 1991, Reynolds was again found fit and able to assist in his defense. On December 16, 1991, a third evaluation was sought. The Court denied the request as there was no indication that Reynolds’ condition had changed.

At the beginning of the trial on February 25, 1992, Reynolds’ counsel restated his belief that Reynolds was not competent to proceed. Counsel acknowledged that the Court had denied the third request and then said, “We are just preserving our record.” Even if this constituted yet another motion for mental evaluation, it is clear that counsel did not seek an additional ruling as it was his duty to do. Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992); Beebe v. State, 301 Ark. 430, 784 S.W.2d 765 (1990).

In the Robertson case, the Trial Court said he refused to “make any rulings as to his [Robertson’s] mental condition and his abilities to consult with anybody or help anybody.” The distinction between that case and this one is obvious. Here the Trial Court had made its ruling as to Reynolds’ competency, and there is no suggestion that issue was left to the jury to decide.

The record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.