author: Tom Glaze, Justice.

text:
    McLANE COMPANY, INC. v. Richard A. WEISS, Director of the Arkansas Department of Finance and Administration, and Tim Leathers, Commissioner of Revenue for the State of Arkansas. Earl Gill Wholesale, Inc.; Glidewell Distributing, Inc.; Shinn Wholesale Co., Inc.; Tom Fitts Tobacco Co., Inc.; Warehouse Distributing Co., Inc.; Southern Cigar & Candy, Inc.; M & K Grocer Co., Inc.; Northwest Tobacco & Candy Co., Inc.; and Douglas Tobacco Co., Inc., Intervenors
    97-559
    965 S.W.2d 109
    Supreme Court of Arkansas
    Opinion delivered March 19, 1998

      Morphew & Olson, by; Joe Morphew and Williams & Anderson, by: Peter G. Kumpe and Stephen B. Niswanger, for appellants.

      Malcolm P. Bobo, for appellees Richard A. Weiss and Tim Leathers.

      Lax, Vaughan, Pender & Evans, P.A., by: Audrey R. Evans and Walter Skelton, for intervening appellees.
   Tom Glaze, Justice.

Appellant McLane Company, Inc., a wholly owned subsidiary of Wal-Mart Stores, Inc., is a Texas corporation and wholesaler of cigarettes and other products, and is licensed to do business in Arkansas. McLane brings this appeal, questioning the constitutionality of Arkansas’s Unfair Cigarette Sales Act, Ark. Code Ann. § 4-75-701 -713 (Repl. 1996), which was enacted in 1951. The declared purpose of the Act is to promote fair and honest competition by prohibiting the sales of cigarettes below cost in the wholesale or retad trades that are made with the intent of injuring competitors or destroying or substantially lessening competition.

The Unfair Cigarette Sales Act defines the cost to wholesalers as the wholesaler’s basic cost of the cigarettes plus the cost of doing business as evidenced by the standards and methods of accounting regularly employed by the wholesaler. § 4-75-702(11)(A). Especially significant to this litigation, the Act provides that, in the absence of proof of a lesser or higher cost of doing business by the wholesaler making the sale, the “cost of doing business shall be presumed to be two percent of the basic cost of the cigarettes” to the wholesaler plus cartage to the retailer outlet, “which cartage cost in the absence of proof of a lesser or higher cost, shall be presumed to be three-fourths of one percent of the wholesaler’s basic cost of the cigarettes.” (Emphasis added.)

Also pertinent to this case on appeal are those provisions of the Act that provide that the State’s Director of the Department of Finance and Administration (Director), an appellee herein, is empowered with the authority to prescribe, adopt, and enforce rules and regulations to enforce the Act. § 4-75-706. Under this authority, the Director promulgated Miscellaneous Tax Regulations 1988-2, which provides that a wholesaler’s cost of doing business is presumed to be four percent, not the two percent set out in the Act, and the regulation stated the four percent cost of doing business had been determined as a result of cost surveys and other information compiled and received. See §§ 4-75-706(a)(2) and 4-75-711(b).

This legal dispute actually began when, on October 18, 1995, McLane contacted the Department of Finance & Administration (DFA), requesting it to repeal Regulation 1988-2 and the Regulation’s four percent requirement. In accordance with the provisions of the Act and the Regulation allowing a wholesaler to present proof of a lesser cost-of-doing-business amount, McLane submitted to the DFA a detailed and lengthy cost analysis and report, reflecting a lesser cost of doing business than that presumed by either the Act or Regulation 1988-2. After the DFA’s review of McLane’s proof, the Director approved and established a lesser doing-business cost at one-half of one percent of the basic cost of cigarettes, thereby making the minimum selling price the basic cost of cigarettes plus one-half of one percent, rather than the presumed two or four percent. The Director’s approval resulted in the DFA promulgating Miscellaneous Tax Regulation 1995-5, which established that a wholesaler’s cost of doing business is one-half of one percent of the basic cost of cigarettes. On October 25, 1995, the Director notified McLane in writing that, on November 6, 1995, McLane could commence to sell cigarettes at the new minimum price.

On November 1, 1995, events began to change. On this date, McLane’s competitors filed suit for a prehminary injunction in Chicot County Chancery Court, requesting that the DFA be prohibited from implementing the new Regulation 1995-5 until such time as the DFA developed administrative rules and procedures to review the statutorily mandated proof required to establish a wholesaler’s cost of doing business. The Chicot County Chancery Court granted the petitioners’ request for injunctive relief. Though McLane was not a party to the Chicot County suit, the chancery court’s order enjoined the Director from establishing one-half of one percent above the basic cost of cigarettes as the cost of doing business to McLane. The DFA subsequently rescinded its earlier approval of McLane’s new cost-of-doing-business amount.

On November 16, 1995, McLane filed this suit in Pulaski County Chancery Court against the Director, alleging the State’s Act and Regulation 1988-2 are overbroad and unconstitutional deprivations of McLane’s due process rights. On December 4, 1995, the Pulaski County Chancellor permitted McLane’s competitors (collectively referred herein as Intervenors), to intervene, and the Director and Intervenors defended the Act’s and Regulation’s constitutionality. On October 30, 1996, the Pulaski County Chancery Court upheld the laws’ constitutionality by granting Intervenors’ motion for summary judgment, denying McLane’s summary judgment motion, and dismissing McLane’s complaint. McLane brings this appeal, contending the chancellor erred in holding the Act and Regulation to be constitutional, but alternatively urges further that Regulation 1988-2 is facially inconsistent with the Act and was arbitrarily promulgated. McLane adds, too, that the Act and Regulation are invalid because they are so vague that they can be and have been enforced arbitrarily.

The Intervenors initially argue that McLane’s appeal should be dismissed for its having failed to comply with Ark. R. App. P. 5(b) by obtaining an improper extension and filing an untimely record. The Intervenors’ dismissal motion was previously considered and denied by this court on June 9, 1997, and we do not revisit that issue a second time. However, we do address the Intervenors’ preservation-of-issue arguments concerning McLane’s alternative contentions (1) that Regulation 1988-2 is facially inconsistent with the Act, and (2) that both the Act and Regulation are so vague that they can be and have been arbitrarily enforced. McLane concedes the lower court’s order did not specifically address these two arguments. However, McLane in its summary judgment motion below did contend Regulation 1988-2 was contrary to the Act and invalid, and in response, the trial court summarily rejected McLane’s contention, by ruling the Regulation was neither arbitrary nor contrary to the Act. However, we fail to find in the chancellor’s order where he ruled on McLane’s “vagueness” argument. Thus, though we conclude McLane adequately preserved its argument asserting Regulation 1988-2 is facially inconsistent with the Act, we will not reach its vagueness argument, since the trial court neither addressed it, nor did the court rule on the issue. See Morrison v. Jennings, 328 Ark. 278, 284, 943 S.W.2d 559, 562 (1997).

Before leaving procedural matters, the Intervenors also claim McLane failed to preserve its argument that the disputed Act and Regulation violate McLane’s due process rights under Art. 2, § 8, of the Arkansas Constitution. In making its claim, Intervenors attempt to enlarge and strengthen their constitutional due process argument to a review of cases decided in other jurisdictions where Intervenors suggest that a majority of the courts have found statutes similar to our State’s Unfair Cigarette Sales Act to be constitutional. McLane, on the other hand, leans heavily on Arkansas cases Ports Petroleum v. Tucker, 323 Ark. 680, 916 S.W.2d 749 (1996), and Wal-Mart Stores, Inc. v. American Drugs, Inc., 319 Ark. 214, 891 S.W.2d 30 (1995), when arguing the Act is constitutionally infirm. We believe McLane unequivocally preserved its due process claim under the Arkansas Constitution, and did so by relying upon the case of Ports Petroleum, where we held that Section 4 of Act 380 of 1993 (of the Arkansas Petroleum Trade Practices Act) violated the Due Process Clause of the Arkansas Constitution. In sum, we concluded in Ports Petroleum that Act 380 was overbroad in that it prohibited legitimate and innocent competition fostered by below-cost sales, and that the Act failed to include a prohibition against such sales made with predatory intent to damage and destroy competition. McLane argued below, and now on appeal, that Ports Petroleum is controlling here and subjects Arkansas’s Unfair Cigarette Sales Act to the same constitutional-death knell administered to Section 4 of the Arkansas Petroleum Trade Practices Act. Consequently, we disagree with Intervenor’s claim that McLane is precluded from arguing the Unfair Cigarette Sales Act’s validity under the Due Process Clause in Art. 2, § 8, of the Arkansas Constitution.

We now turn to McLane’s primary argument that Arkansas’s Unfair Cigarette Sales Act and Regulation 1988-2 are unconstitutional because the assigned presumption of predatory intent, arising from a below-cost sale under the enactments, too broadly imposes restrictions on McLane’s liberty to conduct its business as it chooses. In simple terms, McLane contends that on their face, the Act and Regulation are unconstitutional because they create a presumption of illegality from the mere fact of a below-cost sale.

As previously mentioned, the Act provides that, in the absence of proof of a lesser or higher cost-of-doing-business amount, that cost amount shall be presumed to be two percent of the basic cost of cigarettes to the wholesaler plus cartage to be presumed at three-fourths of one percent of the basic cost. § 4-75-702(ll)(B). The Act further states that a wholesaler’s sale at less than the fixed minimum price shall be prima facie evidence of intent to injure competition, which, if unrebutted, is a criminal misdemeanor punishable by a fine of up to $500.00. See § 4-75-708(e) and (d). McLane submits that the fact of a below-cost sale is not enough to give rise to a presumption of predatory intent, and such a presumption must be regarded as irrational or arbitrary, and hence unconstitutional, unless it can be said with substantial assurance that the presumed fact (of predatory intent) is more likely than not to flow from the proved fact (minimum price or below-cost sale) on which it is made to depend. See Stone v. Lockhart, 414 F.Supp. 1180 (E.D. Ark. 1976).

The Wal-Mart Stores and Ports Petroleum decisions relied upon by McLane are not controlling even though in both cases this court upheld below-cost sales. Wal-Mart Stores involved Ark. Code Ann. § 4-75-209(a)(1) of the Unfair Practices Act which makes it unlawful for any corporation doing business in this state to sell at less than cost for the purpose of injuring competitors and destroying competition. There, because Wal-Mart was selling items below cost as loss leaders, its competitors filed suit, alleging Wal-Mart’s pricing was violating the Unfair Practices Act. We disagreed, stating that isolated or occasional instances of selling below cost, while predatory or illegal in nature, do not necessarily indicate a specific intent to monopolize. This court held that, if the policy of this state is to render illegal the loss-leader tactic or to recognize a prima facie case of purposeful intent to destroy competition by below-cost sales in disparate articles that are changed on a regular basis, that policy should be clearly announced by the General Assembly in appropriate legislation. In reversing the chancellor, this court ended its decision by holding § 4-75-209(a)(1) does not provide a sufficient statutory basis to support the chancery court’s inference that Wal-Mart had a specific intent to destroy its competition.

As is obvious by its reading, the Wal-Mart Stores decision did not involve a sustained below-cost effort over a substantial period of time directed at a single article, as is the situation here. But, more important, the Act in Wal-Mart Stores did not contain a comparable statutory scheme to the one in the Unfair Cigarette Sales Act, which affords a competitor the right to establish a lower or higher minimum price. We will discuss this point further below, but first we address McLane’s rebanee on Ports Petroleum.

Ports Petroleum also fails to help McLane’s cause. As mentioned previously above, Ports Petroleum dealt with the constitutionality of Section 4 of Act 380 of the Arkansas Petroleum Trade Practices Act (APTP Act), which provided that no dealer shall make a retail sale of motor fuel at below cost, where the effect may injure competition. We recognized in Ports Petroleum that what separates predation from legitimate price cutting is the intent of the predator to damage and destroy competition and then recoup the losses through a greater share of the market. Id. at 690, citing State v. Mapco Petroleum, Inc., 519 So.2d 1275 (Ala. 1987). We then adopted the following principle to use when reviewing state economic regulations for a due process violation:

Generally speaking, the test is whether the legislation is designed to accomplish an end within legislative competence and whether the means it employs are reasonably designed to accomplish that end without unduly infringing upon protected rights .... Specifically, in these “sale below cost” cases, the primary issue will be whether the legislation too broadly imposes restrictions on individuals’ liberty to conduct their business as they choose. If the act penalizes innocent acts not reasonably related to the problem of monopolistic practices or other deceptive, disruptive, or destructive price cutting, the act strikes too broadly.

Our court in Ports Petroleum found that the APTP Act did not require predatory intent and, in that respect, the act was overbroad and violated Arkansas’s Due Process Clause. In the present case, the Unfair Cigarette Sales Act requires predatory intent, so for McLane to prevail here, it must look elsewhere than to our actual holding in Ports Petroleum.

McLane submits that the Act here is even more overbroad than the one in Ports Petroleum because, while it seems to require a showing of a below-cost sale with intent to injure competition, the Act then says a below-cost sale constitutes “prima facie evidence of intent to injure competitors.” Similarly, McLane adds, the Regulation in issue provides that wholesalers are prohibited from selling cigarettes at less than minimum price, and if they do sell under such price, they will be presumed to have acted with purpose to injure competition. See cf. Mott’s Super Markets, Inc. v. Frassinelli, 172 A.2d 381 (Conn. 1961). In addition, McLane argues that, because the Act and Regulation in issue here provide for fines and penalties, a person accused of selling below cost has the burden of proving his innocence. We believe McLane’s arguments are misdirected.

Initially, we mention the well-settled rule that statutes are presumed constitutional, and if it is possible to construe a statute so as to pass constitutional muster, this court will do so. Clinton v. Bonds, 306 Ark. 554, 816 S.W.2d 169 (1991). However, it has also been held that a statutory presumption cannot be sustained if there is no rational connection between the fact proved and the fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. See Tot v. United States, 319 U.S. 463 (1943). Where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them, it is not competent for the legislature to create it as a rule governing the procedure of courts. Id. at 468. Under the “rational connection test,” a permissive presumption is only required to meet a preponderance standard, and the test is satisfied and a rational connection is shown if the basic fact is more likely than not to lead to the presumed fact. County Court of Ulster County v. Allen, 442 U.S. 140 (1979). As previously indicated above, we agree with the Intervenors on this point. Therefore, we conclude the statutory scheme under the Unfair Cigarette Sales Act provides for the rational connection between the presumed cost-of-doing business and minimizing-price amounts in the Act and the Regulation and the presumed fact of predatory intent provided.

The Act does not make all below-cost sales of cigarettes unlawful, but instead exempts (1) isolated transactions not made in the usual course of business, (2) clearance sales for discontinued items, (3) sales of imperfect or damaged items, (4) sales related to the liquidation of a business, or (5) sales made by a fiduciary acting under the order or direction of a court. See § 4-75-703(1) — (5). In addition, § 4-75-704 exempts sales below cost made to meet a competitor’s prices. We believe the Intervenors are arguably correct in stating that, once the foregoing exempted sales are removed from consideration, it is rational to conclude that it is more likely than not that other below-cost sales are made for improper purposes. But other, perhaps more palatable, reasons support the Act’s and Regulation’s presumed-minimum-price amounts.

The Regulation, for example, specifically reflects the wholesaler’s presumed basic cost of four percent and the minimum price, which can be charged by a wholesaler for cigarettes, resulted from cost surveys and other information compiled and received by the DFA. Because wholesalers are given the opportunity to sell below these established minimums, it is, once again, reasonable to presume other below-cost sales indicate an intent to injure. Finally, but significantly, we emphasize that a wholesaler, who had a desire to charge a lesser price for cigarettes, has a right under the Act and Regulation to submit to the Director a request to charge a lesser price; the wholesaler must do so by setting forth in detail the accounting standards and methods, computations, and other relevant information, supporting the wholesaler’s claimed cost of doing business. McLane, in fact, followed this procedure, and the DFA approved McLane’s one-half of one percent amount until the Intervenors obtained their injunctive relief from the Chicot County Chancery Court. Flowever, McLane never challenged the DFA’s rescission of McLane’s cost-of-doing business amount by raising the issue in the Pulaski County Chancery Court. Nor, to our knowledge, did McLane attempt to pursue its right to request a lesser price except by this litigation, which only seeks to set aside the Act and Regulation as being invalid. In any event, we are convinced, for the reasons stated herein, that, on their face, both the Act and Regulation afford McLane the due process it requests and are therefore constitutional.

We move now to McLane’s remaining alternative arguments that Regulation 1988-2 is invalid because it is facially inconsistent with the Act and, at the very least, a question of fact exists as to whether DFA acted arbitrarily and capriciously when it promulgated the Regulation. Concerning McLane’s initial point, the law is elementary that an agency has no right to promulgate a rule or regulation contrary to a statute. See State, Ex Rel. Attorney General v. Burnett, 200 Ark. 655, 140 S.W.2d 673 (1940), cited with approval in Pledger v. C.B. Form Co., 316 Ark. 22, 871 S.W.2d 333 (1994), and American Trucking Ass’n v. Gray, 288 Ark. 488, 707 S.W.2d 759 (1986). McLane first points to the Act’s definition of “Basic cost of cigarettes” which reads as follows:

(1) “Basic cost of cigarettes” means whichever of the two (2) following amounts is lower, namely, the invoice cost of cigarettes to the wholesaler or retailer, as the case may be, or the lowest replacement cost of cigarettes to the wholesaler or retailer, as the case may be, within thirty (30) days prior to the date of sale, in the quantity last purchased, whether within or before the thirty-day period, less, in either of the two (2) cases, all trade discounts except customary discounts for cash, plus the full face value of any stamps or any tax which may be required by any cigarette tax act of this state or political subdivision thereof, now in effect or hereafter enacted, if not already included in the invoice cost of cigarettes to the wholesaler or retailer, as the case may be.

Ark. Code Ann. § 4-75-702(10) (1987).

McLane then draws our attention to the Regulation’s definition of “basic cost,” and accurately points out that the Regulation omits elements contained in the foregoing Act, and those omissions fail to make the wholesaler account for cartage or amounts received as trade discounts. Furthermore, the Regulation increases the presumption by one and one-quarter percent without any clear explanation as to how that amount was calculated or whether the cost-of-doing-business amount was determined under the Act or Regulation. McLane argues that, by enacting the Unfair Cigarette Sales Act, the General Assembly enumerated the types of costs a wholesaler should consider in order to give the seller more pricing flexibility, but by taking out the foregoing elements, DFA constricted this flexibility.

The Intervenors rejoin McLane’s argument by saying that the Act provides that the presumptive cost of doing business shall be two percent plus three-quarter percent cartage in the absence of proof of a lesser or higher cost of doing business. Both Director and Intervenors summarily conclude that, because the DFA interpreted the Act to permit it to promulgate the Regulation establishing a higher cost, DFA’s actions in doing so should be deemed reasonable. Clearly, this response in no way explains how DFA’s Regulation and its actions fall within the language of the Act or whether DFA followed the Act or the Regulation when it determined and increased the basic cost of cigarettes.

If DFA employed Regulation 1988-2 when it determined an increased presumptive-cost amount, then it omitted at least two core elements required by the Act. Thus, in this respect, the DFA Regulation was contrary to the Act and invalid. However, the fact that a portion of a regulation is void does not invalidate the whole regulation where such portion is distinctly separable from the remainder which in itself contains the essentials of a complete regulation. See McClendon v. City of Hope, 217 Ark. 367, 230 S.W.2d 57 (1950). Here, Regulation 1988-2 was promulgated for the purposes of administering and enforcing the Act, and except for the foregoing flaws of omission mentioned bearing on determining the basic cost of cigarettes, the Regulation appears consistent with the Act. Thus, the issue arises as to whether DFA’s Regulation and actions may prevail even though portions of the Regulation are invalid.

To answer this question, we turn to McLane’s assertion that the trial court erred in granting the Intervenors’ motion for summary judgment. We believe McLane is right, based in part on the factual question discussed above — whether the DFA utilized the Act or its Regulation when it determined “basic cost.” Because summary judgment is a remedy that should be granted only when it is clear that there is no genuine issue of material fact to be litigated, that remedy was not appropriate here. See Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998); [rehearing denied, see per curiam March 5, 1998]. Thus, we reverse and remand this matter for further proceedings to determine under what authority the DFA determined basic cost.

Another factual issue also arises that should be considered by the trial court on remand, and that issue involves the broader question as to what method the DFA used to alter the Act, to increase the presumptive cost of doing business. McLane urges that, for DFA to make such a change to the Act by regulation, the Act requires the DFA to support the change or regulation with a cost survey in accordance with recognized statistical and cost-accounting practices.

McLane argues that there is substantial evidence that shows the DFA did not use a cost survey to determine the four percent presumptive cost of doing business. As a consequence, it argues that a fact question exists as to whether DFA relied on a cost survey when it adopted Regulation 1988-2. To support its argument, McLane reviews the testimony of various DFA officials who stated that they had never conducted cost surveys, and that no surveys were found in their files.

The Director suggests there is ample evidence in the record that cost surveys were done before Regulation 1988-2 was adopted. That evidence, however, was circumstantial and at most reveals only that a fact issue exists as to whether the Regulation was actually supported by cost-survey information.

The Intervenors’ response differed from the Director’s, arguing that the Act does not require cost surveys to be made in connection with the promulgation of regulations by the Director. Without indicating what method the Director used when establishing the four percent minimum-price markup, the Intervenors simply relate that cost surveys are not the sole method by which the DFA may establish a presumptive cost of doing business. Once again, the Intervenors’ response serves only to show that a fact question exists concerning how the presumptive cost of doing business was established.

The trial court’s grant of the Intervenors’ motion for summary judgment is reversed and remanded for further proceedings to determine how and under what authority the DFA acted when it determined and increased the basic cost of cigarettes.

       Section 4-75-702(ll)(A) further provides the cost of doing business must include, without limitation, labor costs, including salaries of executives and officers, rent, depreciation, selling costs, maintenance of equipment, delivery coste, all types of licenses, taxes, insurance, and advertising.

       Basic cost of cigarettes under the Act means whichever of the two following costs is lower, namely, the invoice cost of cigarettes to the wholesaler, or the lowest replacement cost of cigarettes to the wholesaler, within thirty days prior to the sale, in the quantity last purchased less all trade discounts except customary discounts for cash, plus the full face value of any stamps or any tax required by any state or local cigarette tax if not already included in the wholesaler’s invoice cost. See § 4-75-702(10).

       Tim Leathers, the Commissioner of Revenue and Deputy Director of the DFA, was also made a party defendant, but since he serves under the Director in these circumstances, for writing purposes, we refer merely to the Director.


source: Caselaw Access Project

license: Public Domain

text:
    Michael Sherman PHILLIPS v. STATE of Arkansas
    CR 97-814
    965 S.W.2d 137
    Supreme Court of Arkansas
    Opinion delivered March 19, 1998

      Joel O. Huggins, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Michael Sherman Phillips brings this appeal from jury verdicts and convictions finding him guilty on the charges of possession of heroin with the intent to deliver and accomplice to the delivery of cocaine. His sole point for reversal is that the trial court erred by refusing to instruct the jury on possession of heroin as a lesser included offense. We affirm.

Phillips was arrested for and charged with the two drug crimes as a result of drug transactions on June 18 and 19, 1996. The Fourth Judicial Drug Task Force (DTF) utilized a confidential informant named Jerry Hernandez to purchase marijuana from Brad Goss, the target of DTF’s investigation. During his first buy from Goss on June 18, Hernandez inquired about purchasing more marijuana, as well as methamphetamine, and Goss said he should have some later that night. Hernandez then left Goss to join police officers, and told them he thought he could get a quantity of methamphetamine from Goss. The officers gave Hernandez $960.00 to make another purchase from Goss, and wired Hernandez so they could monitor the second buy. Early on the morning of June 19, Hernandez entered Goss’s apartment and was informed by Goss that no marijuana or methamphetamine was available, but that he could purchase some cocaine. Hernandez asked how much cocaine he could get for $960.00, whereupon, Goss went outside his back door to confer with Phillips, and returned with about a half ounce of cocaine. After Hernandez gave the money to Goss, Goss returned to the back door, and gave it to Phillips. The police then entered Goss’s apartment, arrested Goss and his girlfriend, and also arrested Phillips who was outside, near Goss’s back door. Inside the apartment, the officers found cocaine, marijuana, numerous items of paraphernalia, and heroin. Phillips was searched, and officers found $1,400.00, including the $960.00 “buy money.” They also found on him about one-half a gram of heroin.

At trial, Phillips did not testify or offer any evidence in his defense concerning the heroin found on him and in Goss’s apartment. The State, on the other hand, presented seven witnesses, including Goss and the officers involved in Phillips’s arrest. The officers testified, giving details of the two buys, the seizing of the heroin from Phillips, and the obtaining of drugs from Goss’s apartment. Goss testified that he received the heroin found in his residence from Phillips only fifteen minutes before the officers’ raid, and explained that the heroin was for having arranged the drug transactions between Phillips and Hernandez.

Although Phillips had offered no evidence, he requested the trial court to give an instruction on the lesser-included offense of possession. He claimed that he was entitled to the instruction based on the State’s testimony, indicating that only a “user amount” of heroin was found on Phillips. The trial court denied Phillips’s request because Phillips had offered no testimony to support such an instruction, but instead denied being guilty of any charge. The trial court was correct.

Our court has consistently held that, where the evidence shows the guilt of the defendant as to the greater offense, it is not error to refuse instructions on the lesser-included offenses. Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990). The case of Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985), is directly on point. There, Dollar asserted he was entitled to a lesser-included instruction on possession because he only intended to personally use the marijuana, which had been seen thrown from his and accomplice Joe Cross’s truck. Like Phillips in the present case, Dollar did not testify, but his accomplice, Cross, did. Cross’s testimony reflected that Dollar’s truck was used to harvest the marijuana, and that they planned to divide it between them. In upholding the trial court’s ruling to deny an instruction on possession, this court stated there was no testimony given that afforded a rational basis for concluding that Dollar only wanted the marijuana for personal use.

Our decision in Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992), is also on point and controlling. In Whitener, an undercover officer purchased a quarter-ounce bag of marijuana from Whitener for $30.00, and based on that sale, Whitener was charged with delivery of marijuana. At trial, Whitener chose not to testify, but requested a jury instruction on the lesser-included offense of possession of marijuana, which the trial court denied, finding no rational basis to give the instruction. On appeal, this court affirmed the trial court’s ruling, stating as follows:

The charge and proof by the State were for the actual delivery of marijuana, and Whitener did not testify. A jury, conceivably could have disregarded [the State’s proof], acquitted Whitener of delivery, and found her guilty of the less serious charge of possession, but any rational basis for such a verdict is not readily apparent.

In Washington v. State, 319 Ark. 583, 892 S.W.2d 505 (1995), we again upheld the trial court’s refusal to instruct on the possession charge where the defendant did not testify and the State offered proof of delivery. We said that, based on the proof presented, no rational basis for a lesser verdict existed.

Here, unlike Whitener and Washington, the charge against Phillips by the State was not for the actual delivery of the heroin to Goss, but for possession with intent to deliver the heroin police found on Phillips. The State’s evidence shows the officers found approximately one-half a gram, or 500 milligrams, of heroin on Phillips at the time of his arrest. That amount is five times in excess of the quantity limit of 100 milligrams required in Ark. Code Ann. § 5-64-401 (d) (Repl. 1997) to create a rebuttable presumption that Phillips possessed the heroin with the intent to deliver. Section (d) provides that the presumption for heroin may be overcome by the submission of evidence sufficient to create a reasonable doubt that the person charged possessed a controlled substance with intent to deliver. However, Phillips presented no evidence to rebut the statutory presumption. For a jury to find on the evidence presented that Phillips had only a personal use interest in the heroin found on him, it would have had to disregard the statutory presumption that Phillips possessed the heroin with the intent to deliver.

Additionally, the jury would have had to ignore the evidence in the record indicating that Phillips and Goss were both drug dealers. When police searched Goss’s apartment, they found cocaine, marijuana, heroin, and drug paraphernalia, including syringés and two sets of scales. Goss’s uncontroverted testimony established that Phillips had provided Goss with the cocaine and marijuana he sold to Hernandez, as well as the cocaine, marijuana, and heroin found in Goss’s apartment. Goss testified that one set of scales found in his apartment actually belonged to Phillips, and that Goss had borrowed them to “weigh up” some marijuana. Goss also stated Phillips owned another set of scales that “fit in your pocket,” that Phillips told him he used to “weigh up” the cocaine that was sold to Hernandez. This, in addition to the fact that Phillips was arrested with $1,400.00 in his pocket — $960.00 of that the DTF’s “buy money” — is more than sufficient to show that Phillips and Goss were drug dealers, and Phillips offered no evidence to the contrary. Because there was no rational basis to give an instruction on mere possession, the trial court ruled correctly to exclude it.

We affirm.


text:
    Oscar STILLEY v. Wanda McBRIDE
    97-628
    965 S.W.2d 125
    Supreme Court of Arkansas
    Opinion delivered March 19, 1998

      Appellant, pro se.

      Dailey & Woods, P.L.L.C., by: Wyman R. Wade, Jr., for appellees.
   Tom Glaze, Justice.

On behalf of two clients, appellant Oscar Stilley, an attorney, filed a § 1983 action in federal court against two Fort Smith police officers, Patricia Sullivan and Ronald Pippin. Stilley sought to obtain the officers’ home addresses from their personnel records from Wanda McBride, a City of Fort Smith employee. Stilley wanted the addresses, so he could serve the officers by mail, which was cheaper than having them served in person. When McBride refused Stilley’s request, Stilley immediately reduced his request to writing, demanding the addresses pursuant to the Arkansas Freedom of Information (FOI) Act, Ark. Code Ann. § 25-19-101 -107 (Repl. 1996). On the same day, the Fort Smith City Attorney, Stanley A. Leasure, by letter, denied Stilley’s demand, and stated the records requested were exempt from disclosure under § 25-19-105(b)(10) of the FOI Act. That provision generally provides that personnel records are not open to the public if their disclosure would constitute a “clearly unwarranted invasion of personal privacy.” Six days later, Stilley, pro se, filed this lawsuit in circuit court, seeking Sullivan’s and Pippin’s home addresses. Fort Smith answered, again denying Stilley’s requests, and stating the information sought is exempt under § 25-19-105(b)(10). The circuit court promptly set the matter for a hearing.

At the hearing, counsel revealed that not only had Stilley already obtained the officers’ addresses, but also both the City and the officers had filed their answers in the federal lawsuit. In fact, the federal suit had been dismissed prior to the circuit court’s hearing. Nonetheless, the parties and the circuit court proceeded with stipulations of facts, testimony, and arguments, after which the circuit court held that the officers’ home addresses were exempt from disclosure under § 25-19-105(b)(10) because the information is a clearly unwarranted invasion of personal privacy. Stilley appeals, claiming the trial court erred.

We first are met with the doctrine of mootness, and the well-settled rule that this court does not render advisory opinions, nor answer academic questions. Wilson v. Pulaski Ass'n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997). Under Arkansas law, a case becomes moot when any judgment rendered would have no practical effect on an existing legal controversy. Id. However, when the case involves the public interest, or tends to become moot before litigation can run its course, or a decision might avert future litigation, we have, with some regularity, refused to permit mootness to become the determinant. Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989). The FOI case now before us unquestionably presents an issue of public interest. Accordingly, we address and decide it.

In Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), this court considered whether personnel records, containing written examinations and evaluations of police officers seeking promotions, were exempt from disclosure under § 25-19-105(b)(10). We sustained the trial court’s ruling that the public’s right of scrutiny would be satisfied under the circumstances, if the evaluation or assessor report forms were released after the names of the officers were deleted. In affirming the trial court, we stated the following:

The fact that section 25-19 — 105(b)(10) exempts disclosure of personnel records only when a clearly unwarranted personal privacy invasion would result, indicates that certain “warranted” privacy invasions will be tolerated. Thus, section 25-19-105(b) (10) requires that the public’s right to knowledge of the records be weighed against an individual’s right to privacy. The public’s interest, the right to know that its safety is protected by competent and the best-qualified police lieutenants, is substantial. Because section 25-19-105(b)(10) allows warranted invasions of privacy, it follows that when the public’s interest is substantial, it will usually outweigh any individual privacy interests and disclosure will be favored.

In the Young decision, while recognizing the federal FOI Act personnel exemption is not identical to Arkansas’s, we adopted the federal court’s standard of balancing the public’s and individual’s privacy interests when deciding whether personnel information should be disclosed under § 25-19-105(b)(10). We cited Brown v. FBI, 658 F.2d 71 (2d Cir. 1981), with approval, stating that the federal courts have found that a substantial privacy interest exists in records revealing the intimate details of a person’s Ufe, including any information that might subject the person to embarrassment, harassment, disgrace, or loss of employment or friends. We concluded in Young that the release of embarrassing behaviors potentially contained in the records regarding officer promotions touched on the intimate details of the officer-candidates’ lives, and was, therefore, a substantial personal privacy interest and would result in a clearly unwarranted invasion of the officers’ personal privacy.

Since our decision in Young, the Supreme Court has decided the case of Department of Defense v. FLRA, 510 U.S. 487 (1994), which is worthy of our review before deciding the question now before us. There, the Court held the disclosure of the home addresses of federal civil service employees constituted a “clearly unwarranted invasion of the employees personal privacy” within the meaning of the federal FOI Act, 5 U.S.C. § 552(b)(6). In FLRA, two local unions requested agencies of the Department of Defense to provide them with the names and home addresses of the agency employees in the bargaining units represented by the unions, but the agencies withheld home addresses, claiming such information was prohibited by the Privacy Act of 1974. Eventually, a divided panel of the United States Court of Appeals for the Fifth Circuit rejected the agencies’ claim and held that, because exemption § 552(b)(6) of the federal FOI Act did not apply, the FOI law mandated full disclosure. 975 F.2d 1105 (1992). The Fifth Circuit majority panel reasoned that because the weighty interest in public-sector collective bargaining identified by Congress in the Labor Statute would be advanced by the release of the home addresses, disclosure “would not constitute a clearly unwarranted invasion of privacy.” The Fifth Circuit adopted the unions’ argument that the home addresses of bargaining-unit employees constitute information that was “necessary” to the collective-bargaining process because through them, unions could communicate with employees more effectively than would otherwise be possible.

Upon its certiorari review of the Fifth Circuit Court decision, the Supreme Court reversed, and in doing so, noted that its duty on review was to weigh the privacy interest of bargaining-unit employees in nondisclosure of their addresses against the only relevant public interest in the FOI balancing analysis — the extent to which disclosure of the information sought would “shed light on an agency’s performance of its statutory duties” or otherwise let citizens know “what their government is up to.” FLRA, 510 U.S. at 497. The Court determined that, while the disclosure of the addresses might allow the unions to communicate more effectively with employees, such disclosures would reveal little or nothing about the employing agencies or their activities. Id.

After finding the relevant public interest supporting disclosure of home addresses to be negligible, at best, the Court then proceeded to weigh the interest of bargaining-unit employees in nondisclosure of their home addresses. It commenced this stage of its balancing of competing interests, by stating that, because there is little relevant public interest shown for releasing employees’ home addresses, it is sufficient under the circumstances to observe that the employees’ privacy interest in nondisclosure is not insubstantial. Id. at 500. The Court first pointed out that whether such personal information may be available from other sources such as telephone directories and voter registration lists is not relevant for balancing purposes. Id.

The Court generally discussed the employees’ various reasons for choosing not to provide the unions with their addresses, such as the employees’ lack of familiarity with unions, their opposition to unions, or their reluctance to be disturbed at home by work-related matters. The Court expressed its reluctance to disparage the privacy of home, which is accorded special consideration in our Constitution, laws, and traditions. In addition, the Court said that, when it considered that other parties, such as commercial advertisers and solicitors, must have the same access under the FOI Act as the unions to the employee address lists sought, it is clear that the individual privacy interest that would be protected by nondisclosure was far from insignificant. FLRH, 510 U.S. at 501.

In turning to the situation at hand, we initially emphasize that, under Arkansas’s FOI Act, records kept in the scope of public employment are presumed to be public records, see § 25-19-103(1), but even so, such a record may be exempt from disclosure as is provided under § 25-19-105 (b) (10). However, any exemption from disclosure is to be narrowly construed. Young, 308 Ark. at 596, 826 S.W.2d at 254. Thus, like the City of Little Rock did in Young, the City of Fort Smith here had the burden to show that the officers’ privacy interests outweighed that of the public’s under the circumstances presented. Id.

The City of Fort Smith undertook and met its burden at the circuit court hearing by presenting the testimony of Police Sergeant Patrick Young. Sergeant Young testified, touching on two concerns relating to the disclosure of police officers’ addresses to the public. His first concern was that, when an officer goes home, the officer expects to be safe, and when he or she is on duty, the officer does not need the added burden of worrying about his family at home. A second concern, given by Sergeant Young, was the potential harassment or nuisance of people visiting or contacting officers at home.

As previously mentioned, Stilley’s sole reason for requesting Officers Sullivan’s and Pippin’s addresses was to utilize a cheaper method of obtaining service of process on the officers. Similar to the federal FOI Act, the purpose of our FOI law is to keep our electors advised of the performance of their public officials and to make it possible for them, or their representatives, to learn and to report fully the activities of their public officials. Ark. Code Ann. § 25-19-102 (1996). The reason given by Stilley for requesting home addresses of police officers — has little or nothing to do with learning or reporting the officers’ activities. This is especially true here, since Stilley’s federal lawsuit had been filed before he requested the officers’ addresses, and the suit had been dismissed before any hearing had been held by the circuit court. Stilley’s request, in short, was triggered largely by his intent to save a few dollars in serving process on Sullivan and Pippin, not to learn about or report on those officers’ activities.

For the foregoing reasons, we uphold the circuit court’s decision, denying Stilley’s FOI request for the home addresses of officers Sullivan and Pippin.

       Section 552(b)(6) provides that the FOI Act’s disclosure requirements do not apply to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

       Under 5 U.S.C. § 7111(a), the Labor Statute requires an agency to accord exclusive recognition to a labor union that is elected by employees to serve as the representative of a bargaining unit. Moreover, an exclusive representative must represent fairly all employees in the unit, regardless of whether they choose to become union members. § 7114(a)(1).

       The Court’s analysis previously related that all FOI requesters have an equal, and equally qualified, right to information; the fact that the unions are seeking to vindicate the policies behind the Labor Statute was irrelevant to the FOI analysis.

       No issue is raised as to whether the records sought here are public records.

       No question was raised below or on appeal concerning the standing of the City to defend Stilley’s FOI claim as it related to Officers Sullivan and Pippin.


author: Donald L. Corbin, Justice.

text:
    Eileen HEIGLE v. Jimmie D. MILLER
    97-652
    965 S.W.2d 116
    Supreme Court of Arkansas
    Opinion delivered March 19, 1998

      Pope, Ross, Dendy & Cazort, by: Brad A. Cazort; and John K. Shamburger, for appellant.

      Snellgrove, Laser, Langley, Lovett & Culpepper, by: Todd Williams, for appellee.
   Donald L. Corbin, Justice.

This is a premises liability case. Appellant Eileen Heigle appeals the judgment of the Cleburne County Circuit Court granting summary judgment to Appellee Jimmie D. Miller. On appeal, Appellant asserts that the trial court erred (1) in finding that Appellant was a licensee rather than an invitee in Appellee’s home; (2) in applying the wrong standard of care to her negligence claim; and (3) in granting summary judgment when there were genuine issues of material fact to be adjudicated. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. l-2(a)(15), as it presents questions involving the law of torts. We find merit to Appellant’s second point, and we reverse.

The undisputed facts are as follows. Appellant had been invited by Appellee to come over to Appellee’s house for dinner and to spend the night. Appellee was essentially home bound, having to take care of her eighty-year-old husband who suffered from deteriorating health conditions, including incontinence and poor eyesight. As a result of his health problems, Appellee’s husband frequently urinated on the bathroom floor, in his attempts to relieve himself. On the night in question, Appellant was injured when she slipped on Appellee’s bathroom floor, which had been wet with urine. Appellee was asleep when the accident occurred. Appellee normally kept a piece of carpet on the bathroom floor to help prevent the floor from being slick with urine when her husband went to the restroom. Periodically, the carpet was not in the bathroom, as it was being cleaned and allowed to air out for several days. The carpet had been taken up a day or two prior to the date that Appellant fell. Appellant alleged in her complaint that Appellee was negligent for failing to warn her of the slick condition, despite Appellee’s knowledge of it.

The trial court granted Appellee’s motion for summary judgment, finding that Appellant was a licensee in Appellee’s home and that, as a result, the duty of care owed to Appellant was to refrain from injuring her through willful or wanton conduct or to warn of hidden dangers where the licensee does not know or has no reason to know of the conditions or risks involved. The trial court analyzed the claim as a “slip-and-fall” case, ruling that Appellant must prove either (1) that the presence of a substance upon the premises was the result of Appellee’s negligence, or (2) that the substance was on the floor for such a length of time that Appellee knew or should have known of its presence and failed to use ordinary care to remove it. The trial court found that, while it was undisputed that the bathroom floor was wet, Appellant did not present any proof that the liquid was negligently placed there or allowed to remain there. The trial court found further that there was no evidence showing that anyone had fallen previously or that Appellee had knowledge that the bathroom floor was wet prior to Appellant’s entering the room that night and falling. Additionally, the trial court determined that there was no proof of a breach of a duty to warn Appellant of any hidden dangers.

Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Where reasonable minds could differ as to the conclusions they could draw from the facts presented, summary judgment should not be granted. Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994). The burden of sustaining a motion for summary judgment is the responsibility of the moving party. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997). Once the moving party has established a prima facie entidement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Pugh, 327 Ark. 577, 940 S.W.2d 445. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.

I. Appellant’s Status

For her first point for reversal, Appellant argues that the trial court erred in ignoring the law set out in AMI 1106 and thereby failing to recognize her status as an invitee rather than a licensee. She contends that she was invited to Appellee’s home and that her visit there on that evening was for a purpose mutually beneficial to both of them. She asserts that Appellee received several benefits from her visit, namely that she brought Appellee food and cigarettes and provided an emotional benefit to Appellee by serving as an outlet for her need to socialize with someone other than her husband. Appellant contends that the trial court erred in classifying her as a licensee instead of an invitee. We disagree.

This court has defined “invitee” as “one induced to come onto property for the business benefit of the possessor.” Bader v. Lawson, 320 Ark. 561, 564, 898 S.W.2d 40, 42 (1995) (citing Lively v. Libbey Mem’l Physical Medicine Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992); Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991); Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1984)). A “licensee” is one who goes upon the premises of another with the consent of the owner for one’s own purposes and not for the mutual benefit of oneself and the owner. Id. This court has declined to expand the “invitee” category beyond that of a public or business invitee to one whose presence is primarily social. See Bader, 320 Ark. 561, 898 S.W.2d 40; Tucker v. Sullivan, 307 Ark. 440, 821 S.W.2d 470 (1991).

In Tucker, 307 Ark. 440, 821 S.W.2d 470, this court was faced with the question of whether the meaning of “mutual benefit,” as used in the definition of “invitee,” should be extended to include situations in which the primary purpose of the invitation is social. There, Tucker lived in Sullivan’s house and was engaged to marry him. During that time, Tucker was severely burned in an accident at Sullivan’s home. Tucker filed suit against Sullivan, alleging that he failed to use ordinary care to maintain the premises in a reasonably safe condition, and that he knew of the danger caused by the proximity of the gasoline to the unguarded gas dryer, but failed to warn her. Sullivan argued that Tucker was a licensee, as she was either a tenant on the premises or a social guest. In holding that the definition of “invitee” should not be extended to such social situations, this court stated that, even assuming Sullivan had extended an invitation to Tucker to five with him, “courts usually require a showing that the invitee’s ‘presence on the land was, actually or apparently, desired by the defendant, generally for some purpose other than social intercourse.’” Id. at 444, 821 S.W.2d at 472 (quoting 62 Am. Jur. 2d Premises Liability § 89 (1990)). This court held that Tucker was properly categorized as a licensee, as there was no evidence that they had contemplated anything other than a social arrangement; the fact that Tucker paid some bills and living expenses was “merely incidental to the romantic relationship,” as there was no indication that she was obligated to do so. Id.

Similarly, in Bader, 320 Ark. 561, 898 S.W.2d 40, this court held that a child who was injured while playing on her neighbor’s trampoline was not an invitee because her presence on the neighbor’s property was primarily social. The plaintiff, the child’s father, had argued that the child was an invitee due to the fact that the two families often entertained each other and that, from time to time, each family had looked after the children of the other, thus conferring some economic benefit on one another. Relying on Tucker, this court declined to extend the definition of “invitee” to a social situation.

Here, the facts demonstrate that Appellant was a licensee in Appellee’s home. The primary purpose of her presence on that occasion was social; she had been invited there for dinner and to spend the evening. That she brought some food and cigarettes to Appellee was merely incidental to her social purpose of visiting a friend. Moreover, the fact that her social visit was emotionally beneficial to Appellee does not alter the nature of the relationship between the two women or Appellant’s purpose for going to Appellee’s home on the night in question. We thus agree with the trial court’s finding that Appellant was a licensee. We now turn to the issue of the duty of care owed to Appellant.

II. Duty of Care

Appellant argues that even if she were properly classified as a licensee, the trial court erred in applying the wrong standard of care. We agree.

The question of the duty owed by one person to another is always a question of law and never one for the jury. Bader, 320 Ark. 561, 898 S.W.2d 40. A landowner owes a licensee the duty to refrain from injuring him or her through willful or wanton conduct. Id. Where, however, the landowner discovers that a licensee is in peril, he or she has a duty of ordinary care to avoid injury to the licensee. Id. This duty takes the form of warning a licensee of hidden dangers if the licensee does not know or have reason to know of the conditions, or risks involved. Id. Here, Appellant concedes that the facts of this case do not support a finding that Appellee acted willfully or wantonly in causing her injuries; instead, she argues that Appellee knew of the recurring condition that made the bathroom floor particularly unsafe, but she failed to warn Appellant of the danger.

On the subject of hidden dangerous conditions, Professors Prosser and Keeton have written:

The theory usually advanced in support of this duty is that, by extending permission to enter the land, he represents that it is as safe as it appears to be, and when he knows that it is not there is “something like fraud” in his failure to give warning. The licensee may be required to accept the premises as the occupier uses them, but he is entitled to equal knowledge of the danger, and should not be expected to assume the risk of a defective bridge, an uninsulated wire, an unusually slippery floor, or a dangerous step, in the face of a misleading silence.
The duty arises only when the occupier has actual knowledge of the risk, although this may be shown by circumstantial evidence, and he is held to the standard of a reasonable person in realizing the significance of what he has discovered .... The duty ordinarily is not to maintain the land in safe condition, but to exercise reasonable care to warn the licensee of the danger; so that if it is known or must be obvious to him, he must look out for himself, and there is no further obligation .... The perils of darkness usually are held to be assumed by one who voluntarily proceeds into it, but if the occupier has any special reason to believe that the licensee will encounter a particular danger there, of which he is unaware, there may still be a duty to give warning.

W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 60, at p. 417-18 (5th ed. 1984) (footnotes omitted) (emphasis added).

In her deposition, Appellee stated that her husband had problems controlling his bladder and that, at times, he would wet himself. She stated that her house had only one bathroom, and that there was a little night light in the room that she kept on for her husband. She stated that she knew her husband would get up two or three times during the night to go to the bathroom, and that every time he did, he would miss the toilet. She stated that she kept a piece of carpet in the bathroom because the floor was slick. She stated that when the carpet was in the bathroom, the floor was not slick. She stated that she periodically took the carpet out of the bathroom in order to wash it and let it air out for several days. She stated that she had taken up the carpet to clean it a day or two before Appellant came to her home, and that she always left it out for several days when she cleaned it. She also stated that she was asleep when the accident occurred. She stated that after the incident had happened, she apologized to Appellant for not warning her about the condition of the bathroom; she admitted that had she warned Appellant about her husband’s urinating on the bathroom floor, Appellant probably would have been more careful and would not have slipped and hurt herself. She stated that no one else had ever slipped or fallen in the bathroom and that it had not occurred to her to warn Appellant of the condition.

Netta Sue Heigle, Appellant’s sister-in-law, stated in her deposition that she was present in Appellee’s home on the date in question. She indicated that she had helped Appellee take care of her husband in the past. She stated that she saw Appellee’s husband go into the bathroom and then come out of the room. She stated that a few minutes later, she saw Appellant go into the bathroom and then heard a loud thump. She stated that she then went into the bathroom and saw urine all over the floor. She stated that when the carpet was on the bathroom floor, the floor was not slick, but that when the carpet was not in place, the floor was definitely slick. She stated that the night light in the bathroom provided enough light to see the toilet and the sink, but not enough to see the urine on the floor. She stated that she was aware that Appellee’s husband would urinate on the floor almost every time he went to the restroom. She stated that she had not heard Appellee ever warn Appellant about the condition of the bathroom floor.

Based upon the foregoing testimony, we conclude that there was an issue of disputed facts with regard to whether Appellee had a duty to warn Appellant of the dangerous condition in the bathroom. A jury could have determined that the dangers associated with the recurring condition that made the bathroom floor unsafe were hidden or, at least, not easily recognized, especially given the darkness of the area at the time of the accident. See Lively, 311 Ark. 41, 841 S.W.2d 609. As such, summary judgment was inappropriate.

Appellant additionally contends that the trial court erroneously analyzed her negligence claim as a “slip-and-fall” case. Although we believe that this is a “slip-and-fall” case, we agree that the particular facts alleged in this case involve a duty of care different from that focused on by the trial court.

Typical “slip-and-fall” cases occur in public places, which often occupy a great deal of space, and involve isolated incidents where anything could have been spilled or placed on the floor by anyone at anytime without the owner’s knowledge. As such, our case law provides that in order to prevail in a “slip-and-fall” case, a plaintiff must show that: (1) the presence of the substance upon the premises was the result of the defendant’s negligence, or (2) the substance had been on the floor for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993). See also Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991); Skaggs Co., Inc. v. White, 289 Ark. 434, 711 S.W.2d 819 (1986). This was the legal analysis employed by the trial court.

Here, the presence of the foreign substance on the bathroom floor was not a one-time incident; the facts presented show that there was a recurring condition that frequently made the bathroom floor slick and unsafe. Moreover, Appellee admittedly knew that virtually every time her husband used the restroom, he would urinate on the floor. She further knew that when the piece of carpet was not in place in the bathroom, the floor was slick. Thus, the particular facts of this case do not require an analysis under a traditional “slip-and-fall” theory of recovery; rather, the issue presented requires a determination of the duty to warn of hidden dangers. Accordingly, we reverse the ruling of the trial court as to the issue of whether Appellee breached the duty owed to Appellant as a licensee, and we remand the case for further proceedings consistent with this opinion.

Reversed and remanded.

       We have revised our Supreme Court Rules such that we no longer review cases involving questions on the law of torts. See In re: Supreme Court Rule 1-2, Rule 2-4, and Rule 4-2(a), Rule 2 of the Rules of Appellate Procedure — Criminal, and Rule 3 of the Rules of Appellate Procedure — Civil, 329 Ark. 656 (June 30, 1997) (per curiam). Because the record in this case was lodged prior to September 1, 1997, jurisdiction of this appeal lies properly in this court.


author: Robert L. Brown, Justice.

text:
    R.L. NEWTON, Individually and In His Official Capacity as an Officer with the Arkansas State Police; and T. David Carruth, Individually and In His Official Capacity as Deputy Prosecuting Attorney for the First Judicial District, Monroe County v. Louis A. ETOCH
    97-325
    965 S.W.2d 96
    Supreme Court of Arkansas
    Opinion delivered March 19, 1998

      Winston Bryant, Att’y Gen., by: Rick D. Hogan, Deputy Att’y Gen., for appellants.

      Charles E. Halbert, Jr., and Ryals & Soffer, P.C., by: Stephen Ryals, for appellee.
   Robert L. Brown, Justice.

This is an interlocutory appeal from a denial of a motion to dismiss filed by appellants R.L. Newton and T. David Carruth on immunity grounds. Appellee Louis A. Etoch, an attorney licensed to practice in Arkansas since 1989, filed a complaint in Phillips County Circuit Court against Newton, individually and in his official capacity as an officer with the Arkansas State Police, and T. David Carruth, individually and in his official capacity as deputy prosecuting attorney for the First Judicial District, Monroe County. In his complaint, Etoch alleged:

Newton either acting under the direction and supervision of Carruth or conspiring with Carruth, drafted a materially false affidavit for warrant of arrest alleging therein that Etoch had given conflicting incriminating statements to Newton with regards to two automobiles owned by an alleged criminal defendant. The material statements in the affidavit were in accurate (sic), incomplete, and drafted in an effort to mislead the magistrate.

He further asserted that “Newton knew the allegations to be materially false [and] inaccurate, and Newton intentionally misled the Municipal Court Judge for the City of Hazen[.]” This resulted in the Municipal Judge’s issuing an arrest warrant for Etoch. He again alleged that this was done at Carruth’s “urging, direction and supervision” or “pursuant to the conspiracy.”

Etoch further asserted that on June 22, 1995, as a result of that arrest warrant, while appearing on behalf of numerous clients in West Helena Municipal Court, Phillips County, he was arrested, handcuffed, and shackled by Newton without probable cause in a place, time, and manner “calculated and effectuated in an attempt to purposely embarrass, humiliate, and damage Etoch’s business and personal reputation.” He was then transported by car from West Helena to Hazen in Prairie County.

Upon his arrival in handcuffs and shackles at Hazen Municipal Court, Etoch alleged that he was met by a large number of people, including members of the media and Carruth, and added:

Carruth, acting alone or with others, completely and totally outside his jurisdiction and without any authority under the law, orchestrated the public display of Plaintiff in custody, in handcuffs and shackles, as he appeared in court and alerted [media] sources to assure that the arrival and presentment of Etoch in court in Hazen be given maximum coverage and exposure, all for the malicious purpose of causing Plaintiff humiliation, embarrassment, harm and damage to his personal and professional reputation and to detrimentally effect (sic) his law practice.

According to the complaint, Carruth also made statements to the media at that time that Carruth knew or reasonably should have known were false, all for the purpose of injuring him.

In addition, Etoch alleged in the complaint that Newton and Carruth undertook their activities with the expectation that Etoch would never be prosecuted and adds that a criminal information was never filed prior to the expiration of the speedy-trial period under Ark. R. Crim. P. 28. Etoch asserted causes of action against Newton and Carruth for a violation of his Fourth Amendment rights under 42 U.S.C. § 1983 and for the state-law torts of false imprisonment, malicious prosecution, abuse of process, and outrage. Etoch also sought damages against Carruth for slanderous statements made to members of the media and to others in connection with his arrest. Newton and Carruth moved to dismiss Etoch’s complaint for lack of subject-matter and personal jurisdiction pursuant to Ark. R. Civ. P. 12(b)(1) and (2). They stated in their motion that the trial court lacked subject-matter jurisdiction due to sovereign immunity under Ark. Const, art. 5, § 20, and that personal jurisdiction was absent due to the immunity provisions for public employees and officials set out in Ark. Code Ann. § 19-10-305 (Repl. 1994). They further asked to dismiss the false imprisonment and slander counts due to the one-year statute of limitation found at Ark. Code Ann. § 16-56-104 (1987). Carruth asserted generally that he was not subject to suit due to prosecutorial immunity, which is absolute.

After a hearing, the trial court denied the motions to dismiss and entered an order, which concluded: (1) accepting as true the allegations in the complaint, the false imprisonment and slander counts were not time-barred; (2) sovereign immunity did not protect officers and employees of the state from their malicious actions; and (3) Carruth was not entitled to absolute prosecutorial immunity because the complaint alleged that he was acting outside of the scope of his duties.

I. Sovereign Immunity

On appeal, Newton and Carruth make the same immunity points argued before the trial court. We first consider the question, however, of whether this is an appealable order and answer in the affirmative.

This court has held that an appeal may be taken from an order denying a motion to dismiss under Ark. R. App. P. — Civ. 2(a)(2) based on the movant’s assertion that he is immune from suit. See Virden v. Roper, 302 Ark. 125, 788 S.W.2d 470 (1990); Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987). The rationale justifying an interlocutory appeal is that the right to immunity from suit is effectively lost if the case is permitted to go to trial. Robinson v. Beaumont, supra. Because Newton and Carruth contend that they are immune from suit, as opposed to being immune solely from liability, the denial of the motion to dismiss on immunity grounds is an appealable order. Cf. Jaggers v. Zolliecoffer, 290 Ark. 250, 718 S.W.2d 441 (1986) (involving the denial of summary judgment motions premised on statutory immunity from liability).

When a party appeals an adverse ruling on a motion brought under Ark. R. Civ. P. 12, this court treats the facts alleged in the complaint as true and views them in the light most favorable to the party who filed the complaint. Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997); Van Dyke v. Glover, 326 Ark. 736, 934 S.W.2d 204 (1996); Cross v. Coffman, 304 Ark. 666, 805 S.W.2d 44 (1991). Newton and Carruth contend that, even under this standard of review, they are entitled to immunity.

We turn then to the issue of sovereign immunity. Sovereign immunity is jurisdictional immunity from suit, although we have not couched the immunity in terms of subject-matter jurisdiction. See Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997); Department of Human Servs. v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990). One reason for this distinction is that sovereign immunity may be waived by the State, where subject-matter jurisdiction can never be waived. See, e.g., State v. Tedder, 326 Ark. 495, 932 S.W.2d 755 (1996).

Article 5, Section 20, of the Arkansas Constitution reads: “The State of Arkansas shall never be made a defendant in any of her courts.” The first question presented, then, is whether the State of Arkansas is the defendant in the instant case. Clearly, the State has not been named as a party, but our inquiry does not stop there.

We established the test for whether a suit is one brought against the State in Page v. McKinley, 196 Ark. 331, 336-37, 118 S.W.2d 235, 238 (1938):

While a suit against state officials or agencies is not necessarily a suit against the state, the general rule that a state cannot be sued without its consent cannot be evaded by making an action nominally one against the servants or agents of a state when the real claim is against the state itself, and it is the party vitally interested. Accordingly, it is well settled, as a general proposition, that, where a suit is brought against an officer or agency with relation to some matter in which defendant represents the state in action and liability, and the state, while not a party to the record, is the real party against which relief is sought so that a judgment for plaintiff, although nominally against the named defendant as an individual or entity distinct from the state, will operate to control the action of the state or subject it to liability, the suit is in effect one against the state and cannot be maintained without its consent[.]

Id. See also Cross v. Arkansas Livestock & Poultry Comm’n, supra; Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771 (1990), cert. denied, 498 U.S. 824 (1990); Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986). We have further held that the end result of tapping the State’s treasury for payment of damages will render the State a defendant. State of Arkansas Office of Child Support Enforcement v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997).

Tapping the State’s treasury may well be the end result when only employees and officers of the State are parties. This is so because the General Assembly has mandated the State to pay actual damages based on judgments obtained against its officers and employees, so long as the action by the officer or employee was “without malice and in good faith within the course and scope of his employment and in the performance of his official duties.” Ark. Code Ann. § 21-9-203(a) (Repl. 1996). Thus, to the extent the State will be obligated to pay damages under this provision, it is the real party in interest, and sovereign immunity comes into play. See Beaulieu v. Gray, supra. See, e.g., Assaad-Faltas v. Univ. of Ark. for Medical Sciences, 708 F. Supp. 1026 (E.D. Ark. 1989).

Our law is clear that in order for Etoch to counter an assertion of sovereign immunity, he must allege sufficient facts in his complaint to support the claim of malicious conduct by Newton and Carruth. In 1981, the General Assembly enacted law which provides that an officer or employee of the State is immune from an award of damages if that officer or employee acted without malice and within the scope of his employment. Ark. Code Ann. § 19-10-305(a) (Repl. 1994). See also Cross v. Arkansas Livestock & Poultry Comm’n, supra; Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995); Beaulieu v. Gray, supra. Conversely, an officer or employee who acts maliciously or outside the scope of his employment is not protected by § 19-10-305(a). See Bland v. Verser, 299 Ark. 490, 774 S.W.2d 124 (1989); Beaulieu v. Gray, supra. By its enactment the General Assembly has clearly waived the State’s sovereign immunity' for certain actions taken by its officers and employees.

Construing the complaint liberally in favor of Etoch, as this court must do, see Brown v. Tucker, supra, Etoch has alleged a conspiracy between Newton and Carruth to have him arrested for the malicious purpose of embarrassing him and damaging his professional reputation and with knowledge that (1) no probable cause existed; (2) the allegations contained in the affidavit for arrest were false; and (3) no prosecution would ensue. We are convinced that Etoch’s complaint contains sufficient allegations of malicious conduct to take the conduct outside the protection of § 19-10-305 (a) and, accordingly, outside of the bounds of the Arkansas Constitution because the coffers of the State are not at risk for malicious conduct.

There is also the point that Etoch has sued Newton and Carruth both individually and in their official capacities, which is relevant for purposes of his § 1983 claim. The United States Supreme Court has held that states are not “persons,” which is the status required for § 1983 lawsuits, and also that a suit against a state official in his or her official capacity is not a suit against that person but, rather, is a suit against that official’s office. Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Thus, suits against persons in their official capacities do not qualify as suits against persons for § 1983 purposes. Counsel for Etoch acknowledged at oral argument that it was error to sue Newton and Carruth in their official capacities for a § 1983 violation. For purposes of this opinion we will treat the two state officers as if they were sued only as individuals.

This leaves the § 1983 count pending against Newton and Carruth as individuals. Newton and Carruth contend they are immune as individuals because they were acting within the scope of their duties as state officers. A § 1983 suit is one brought pursuant to an act of Congress for a deprivation of civil rights against persons operating under color of state law. It establishes a federal cause of action to be enforced in either federal or state courts. See Arkansas Writers’ Project, Inc. v. Ragland, 293 Ark. 395, 738 S.W.2d 402 (1987); Robinson v. Beaumont, supra; Jaggers v. Zolliecoffer, supra. As such, it is the supreme law of the land, and any state claim of immunity must yield to it. U.S. Const. art. 6, § 2; Howlett v. Rose, 496 U.S. 382 (1990). Sovereign immunity, accordingly, is not dispositive of the § 1983 claim for this additional reason. Hence, the trial court reached the right conclusion.

We hold that Newton and Carruth are not immune under the doctrine of sovereign immunity from the § 1983 cause of action or from the state-law tort claims.

II. Prosecutorial Immunity

Carruth also contends that he is entitled to absolute immunity as opposed to qualified immunity under our decision of Culpepper v. Smith, 302 Ark. 558, 572, 792 S.W.2d 293 (1990). The U.S. Supreme Court has distinguished qualified immunity and absolute immunity by stating that qualified immunity depends on the circumstances and the prosecutor’s motives, as established by the evidence. Imbler v. Pachtman, 424 U.S. 409 (1976). Absolute immunity, on the other hand, defeats a suit at the outset so long as the official’s actions were within the scope of his or her duties. Id. Malicious conduct will still be protected by absolute immunity. See Imbler, 424 U.S. at 427. Malice, however, can defeat a claim of qualified immunity.

In Culpepper v. Smith, supra, we relied on Imbler v. Pachtman, supra, and stated:

The decision of a prosecutor to file criminal charges is within the set of core functions which are protected by absolute immunity. This is so even if the prosecutor makes that decision in a consciously malicious manner, vindictively, without adequate investigation, or in excess of his jurisdiction.

Culpepper, 302 Ark. at 572, 792 S.W.2d at 300 (citations omitted) (emphasis added). This court noted, however, that the relevant question was whether the wrong complained of was committed by the prosecutor within the scope of his official duties. Id. In the current litigation, Etoch contends that Culpepper is not controlling because he has alleged that Carruth took actions outside the scope of his authority under law. Specifically, Etoch alleges that Carruth was outside of his judicial district as a prosecutor when he obtained an arrest warrant against Etoch in Hazen.

The U.S. Supreme Court has spoken on this issue in a fine of cases involving § 1983 actions. The State does not discuss these cases, some of which were cited by Etoch, or attempt to distinguish them. In Imbler v. Pachtman, supra, the prosecutor was sued in a civil suit under § 1983 for allegedly using pegured testimony at the plaintiff s criminal trial and for suppressing material exculpatory evidence. The Court held that a prosecutor is immune from a § 1983 suit for damages for activities within the scope of the prosecutor’s duties in “initiating a prosecution and in presenting the State’s case.” Imbler, 424 U.S. at 431. The Court acknowledged that, at common law, courts were virtually unanimous in holding that prosecutors had “absolute immunity” for actions undertaken within the scope of their prosecutorial duties. Id. at 420. The Court continued by discussing immunity from § 1983 actions in conjunction with common law tort immunities and determined that awarding only qualified immunity in conjunction with the prosecution of a case would undermine the performance of prosecutorial duties and subject prosecutors to the “constant dread of retaliation.” Id. at 428, quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950). The Court then cautioned:

It remains to delineate the boundaries of our holding .... We agree with the Court of Appeals that [the prosecutor’s] activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force. We have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of an advocate.

Id. at 430-31 (citations omitted) (emphasis added). Thus, the Court in Imbler focused on what function the prosecutor was engaged in at the time of the alleged wrong, and it drew a distinction between the prosecutor’s role as advocate and the role of an administrator or investigator.

In a subsequent decision, the Court adhered to this “functional approach,” and held that a prosecutor was absolutely immune against liability for participating in a probable-cause hearing and eliciting false testimony from witnesses during that hearing. See Burns v. Reed, 500 U.S. 478 (1991). The Court observed that this activity by the prosecutor was “intimately associated with the judicial phase of the criminal process.” Burns, 500 U.S. at 492, quoting Imbler v. Pachtman, 424 U.S. at 430. Following the Imbler functional approach, the Court concluded that the prosecutor’s appearance clearly involved his role as the advocate for the state rather than a role as administrator or investigator. The Court went on, however, and held that the prosecutor only had qualified immunity pertaining to the legal advice he gave to police officers about putting a criminal suspect under hypnosis because giving advice to investigative officers was not intimately connected with the judicial phase of the criminal process.

Next, in Buckley v. Fitzsimmons, 509 U.S. 259 (1993), the Court granted only qualified immunity to prosecutors in the face of allegations that they had fabricated evidence during the preliminary investigation of a crime for the purpose of obtaining an indictment. The Court held that this conduct by the prosecutor was not undertaken in a judicial role: “Their mission at that time was entirely investigative in character. A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.” Buckley, 509 U.S. at 274 (citation omitted) (emphasis added). The Court emphasized that when a prosecutor performs investigative functions normally performed by a police officer, it is neither appropriate nor justifiable that for the same act immunity should absolutely protect the prosecutor but not the police officer. The Court in Buckley also granted only qualified immunity for statements made by one of the prosecutors to the press. The Court reasoned that not only was there no common law immunity for this conduct, but it was also clear under Imble/s functional approach that these statements were not intimately tied to the judicial phase of the criminal process.

Most recently, the Court, in Kalina v. Fletcher, 118 S.Ct. 502 (1997), held that a prosecutor was not entitled to absolute immunity when she vouched under penalty of peijury for the truth of matters contained in a “Certification for Determination of Probable Cause,” in connection with the issuance of an arrest warrant. The Court did, however, afford her absolute immunity for certain functions undertaken in connection with preparing and filing the information and the motion for the arrest warrant. The Court explained:

[P]etitioner argues that the execution of the certificate was just one incident in a presentation that, viewed as a whole, was the work of an advocate and was integral to the initiation of the prosecution. That characterization is appropriate for her drafting of the certification, her determination that the evidence was sufficiently strong to justify a probable-cause finding, her decision to file charges, and her presentation of the information and the motion to the court. Each of those matters involved the exercise of professional judgment; indeed, even the selection of the particular facts to include in the certification to provide the evidentiary support for the finding of probable cause required the exercise of the judgment of the advocate. But that judgment could not affect the truth or falsity of the factual statements themselves. Testifying about facts is the function of the witness, not of the lawyer. No matter how brief or succinct it may be, the evidentiary component of an application for an arrest warrant is a distinct and essential predicate for a finding of probable cause. Even when the person who makes the constitutionally required “Oath of affirmation” is a lawyer, the only function that she performs in giving sworn testimony is that of a witness.

Kalina, slip op. at 11-12. Thus, the Court made a clear distinction between a prosecutor’s preparing a probable-cause affidavit for a complaining witness to sign in connection with an arrest warrant and criminal information, which is more the role of the prosecutor as lawyer, and the actual swearing to the truthfulness of that same affidavit as complaining witness. The latter role is more properly that of an investigator or victim.

To summarize, this line of Supreme Court cases appears to foreclose absolute immunity for Carruth for Etoch’s allegations relating to (1) his knowing direction and supervision of Newton in drafting a materially false affidavit and his conspiracy with Newton to accomplish that end outside of his jurisdiction as a prosecutor, and (2) his slanderous statements made to the press and others concerning the arrest. See Kalina v. Fletcher, supra; Buckley v. Fitzsimmons, supra. Whether the latter conduct is entitled to absolute immunity was expressly decided against Carruth’s position by the Supreme Court in Buckley v. Fitzsimmons, supra. As to the former, knowingly directing and supervising false testimony for an arrest-warrant affidavit appears to be closely akin to allegations that a prosecutor fabricated evidence during the preliminary investigation of a crime, which was the issue in the Buckley case. The Court held in Buckley that this activity fell under the investigative, as opposed to the judicial or advocate, function. Also, the Court recently held that a prosecutor does not receive absolute immunity for swearing to false information in an affidavit for an arrest warrant in Kalina v. Fletcher, supra. It logically follows that knowingly directing the preparation of a materially false affidavit would not pass muster.

There is one additional point which we emphasize. The Supreme Court uses a presumption that qualified immunity initially applies to the conduct of a prosecutor with the burden placed on that prosecutor seeking absolute immunity to establish that it is justified for the particular function in question. See Burns v. Reed, 500 U.S. at 486-87. Carruth in his brief and in oral argument provided us with no rationale for why absolute immunity should apply to Etoch’s allegations, and, thus, he failed to meet his burden on all causes of action. This is so even while there are myriad cases on this subject. See generally Annotation, When is Prosecutor Entitled to Absolute Immunity from Civil Suit for Damages under 42 USCS § 1983: Post-Imbler Cases, 67 A.L.R.Fed. 640 (1984 & Supp. 1997). Carruth directs our attention only to Culpepper v. Smith, supra, in support of his contention of absolute immunity. That case, though, was decided before the Burns, Buckley, and Kalina decisions by the Court and is not controlling on its face.

Ordinarily, we would deem a prosecutor to be immune absolutely from claims of malicious prosecution or abuse of process. Here, though, the conduct alleged against Carruth falls outside of traditional prosecutorial functions and, indeed, in part outside of Carruth’s jurisdiction as a prosecutor. Should it subsequently develop that Carruth was engaged in conduct intimately connected to his role as prosecutor in the judicial process, absolute immunity would attach. We conclude that Carruth does not have absolute immunity for the conduct alleged in Etoch’s complaint.

We emphasize what is before this court today. The sole issue is one of prosecutorial immunity raised by Carruth as a jurisdictional matter under Ark. R. Civ. P. 12(b)(1) and 12(b)(2). No issue has been raised at this juncture under Ark. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. And no discovery has occurred which might give rise to future motions based on the discovered facts.

Affirmed.