author: Robert H. Dudley, Justice.

text:
    CITY OF JACKSONVILLE v. ARKANSAS DEPARTMENT OF POLLUTION CONTROL AND ECOLOGY
    91-288
    824 S.W.2d 840
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992

      Robert E. Bamburg, for appellant.

      Department of Pollution Control and Ecology, by: Steve Weaver, for appellee.
   Robert H. Dudley, Justice.

Herbicides were manufactured at the former plant of the Vertac Chemical Corporation in Jacksonville. The Environmental Protection Agency, a federal agency, identified dioxin and other hazardous waste at the site of the former plant and authorized the Arkansas Department of Pollution Control and Ecology to contract for the disposal of the waste in accordance with the controlling federal law, the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA. Pollution Control contracted with Vertac Site Contractors, a joint venture, for the incineration of the hazardous waste. An incinerator was constructed at the former Vertac plant site and test burns were conducted. On September 25, 1990, after the contractor began burning the hazardous waste, five of its employees were arrested for violating City Ordinances Nos. 789 and 882. The charges were immediately dismissed and the Jacksonville City Council met the next night, September 26, 1990, and passed Ordinance No. 933, which apparently clarified and amended Nos. 789 and 882 to allow for the incineration of chemical wastes, but only those located at the plant site.

E.P.A. has identified additional hazardous waste at two of the City’s landfills and proposes to transport that additional waste to the incinerator for disposal. The parties agree that the transportation of the additional waste from the two landfills to the incinerator would constitute a violation of the City ordinances.

Pollution Control filed suit against the City seeking a declaratory judgment that the ordinances adopted by the City to prohibit or regulate the incineration of hazardous wastes within its jurisdiction were preempted by state and federal law. The trial court granted summary judgment in favor of Pollution Control. We affirm the trial court’s judgment.

For reversal the City first argues that summary judgment was erroneous because a question of fact remains to be decided. In this argument, the City contends that Pollution Control’s assertion that the City was acting to usurp state and federal powers created an issue of fact. The argument is fallacious. The assertion merely states the legal issue to be resolved. Moreover, the City agreed, in the proceedings below, that there was no issue of fact to be resolved. There is no issue of fact remaining to be decided, and summary judgment is proper when the moving party is entitled to a judgment as a matter of law. Saunders v. Nat’l Old. Line Ins. Co., 266 Ark. 247, 583 S.W.2d 58 (1979).

The City next argues that the trial court erred in granting declaratory relief because the requirements for a declaratory judgment were not met. This argument is also without merit. Among the prerequisite conditions for declaratory relief is the requirement that the issue involved in the controversy be ripe for judicial determination. Ark. Dep’t of Human Services v. Ross-Lawhorn, 290 Ark. 578, 721 S.W.2d 658 (1986). The City contends there is no controversy since the ordinances allow the incineration of hazardous wastes at the Vertac plant site in accordance with state and federal law. The contention begs the question. The controversy exists because the E.P.A. proposes to transport waste from the landfills to the incinerator and the City’s ordinances prohibit such transportation.

The City’s final argument is that the trial court inappropriately applied the doctrine of preemption because, although state and federal law is extensive in the area of hazardous waste disposal, there are legislative voids to be filled by municipalities. The City argues only in generalities and does not identify any such voids nor does it tell us how its ordinances would fill such voids. The City relies upon the “savings provision” of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6929 (1988), which provides, “Nothing in this chapter shall be construed to prohibit any State or political subdivision thereof from imposing any requirements, including those for site selection, which are more stringent than those imposed by [federal] regulations.” CERCLA amended RCRA to provide for the identification and remediation of inactive hazardous waste sites. Although RCRA and CERCLA do not totally preclude concurrent regulation, state and local enactments are nullified to the extent that they actually conflict with federal law and present an obstacle to the accomplishment of the full purposes of Congress. Ensco, Inc. v. Dumas, 807 F.2d 743 (8th Cir. 1986).

RCRA embodies a national policy requiring that hazardous waste be treated, stored, and disposed of in a manner that “minimize [s] the present and future threat to human health and the environment.” 42 U.S.C. § 6902(b). The Act expresses a preference for treatment rather than land disposal of hazardous waste, 42 U.S.C. § 6902(a)(6) (1988), and authorizes the E.P.A. to establish performance and safety standards applicable to the treatment, storage, and disposal of hazardous waste. 42 U.S.C. § 6924(a) (1988).

The E.P.A. proposes to transport hazardous waste from the City’s two landfills to the former plant site for incineration. The City’s ordinances would prohibit incineration of any waste not already located at the former plant site. CERCLA permits the transfer of any hazardous substance offsite for remediation so long as the facility to which it is transferred is being operated in compliance with federal law. 42 U.S.C. § 9621(d)(3) (1988). Also, the RCRA permits the transportation of hazardous waste to treatment, storage, or disposal facilities in compliance with regulations of the E.P.A. and the Department of Transportation. 42 U.S.C. § 6923 (1988). Thus, the ordinances directly conflict with federal law and frustrate the purpose of the RCRA and CERCLA to safely dispose of hazardous waste in the manner deemed safest by Congress and by the E.P.A. In Ensco, Inc. v. Dumas, 807 F.2d at 745, the court wrote, “A [city] cannot, by attaching the label ‘more stringent requirements’ ... to an ordinance . . . arrogate to itself the power to enact a measure that as a practical matter cannot function other than to subvert federal policies concerning the safe handling of hazardous waste.” For the same reason, the trial court correctly ruled that federal law preempted the city ordinances at issue.

Affirmed.

Newbern and Corbin, JJ., would affirm on the basis of Rule 9.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas B. HARVEY v. Bill CLINTON, Governor of the State of Arkansas, et al.
    91-346
    826 S.W.2d 236
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992

      Karr, Hutchinson & Stubblefield, by: Charles Karr and W. Asa Hutchinson, for petitioner.

      Winston Bryant, Att’y Gen., by: Tim Humphries, Asst. Att’y Gen.,- for respondent.
   Robert H. Dudley, Justice.

The Board of Apportionment, which is composed of the Governor, the Secretary of State, and the Attorney General, has the “imperative duty” to make apportionment of the House of Representatives after each federal decennial census. Ark. Const. art. 8, § 1. The House shall consist of one hundred (100) members, with one being apportioned to each of the seventy-five (75) counties and the remaining twenty-five (25) to be apportioned among the more populous counties. Id. at § 2. The part of Section 2 that provides each county is entitled to one representative violates the Equal Protection Clause of the Fourteenth Amendment’s principle of one-man, one-vote. Wells v. White, 274 Ark. 197, 623 S.W.2d 187 (1981), cert. denied, 456 U.S. 906 (1982). The fact that the one part of the section is unconstitutional does not affect the constitutionality of the provision fixing the number of House members at one hundred (100). Faubus v. Kinney, 239 Ark. 443, 389 S.W.2d 887 (1965). Thus, after each federal decennial census the Board must apportion the one hundred (100) members to achieve, as nearly as possible, equal population among the one hundred (100) districts. Another consideration in apportioning the members is insuring some voice to all political subdivisions. Taylor v. Clinton, 284 Ark. 170, 680 S.W.2d 98 (1984).

After the 1990 decennial census the Board met and, on October 11, 1991, adopted a plan of reapportionment, subject to some final adjustment. By that time, a suit contesting the plan had been filed in federal district court under the federal Voting Rights Act. The three-judge district court had directed that:

[N]o plan of apportionment. . . adopted [by the Board of Apportionment] may go into effect until sixty (60) days have elapsed from the date of its final adoption by the Board. This Court will retain jurisdiction, within that time period, for the purpose of entertaining any challenge by the plaintiffs in this case to such plan. If no such challenge is forthcoming, the plan may go into effect, subject, however, to the right of any aggrieved citizen to challenge it in an appropriate action at a later time.

Jeffers v. Clinton, 740 F. Supp. 585, 602 (E.D. Ark. 1990).

The Board and the plaintiffs in the federal district court action stipulated that the October 11 th plan was the final plan for purposes of the Voting Rights Act. However, a final report was not filed with the Secretary of State as required by Article 8, Section 4, of the Constitution of Arkansas.

On November 13,1991, Thomas B. Harvey, the petitioner in this action, filed an original action in this court pursuant to Article 8, Section 5, and sought a Writ of Mandamus to compel the Board to file its report with the Secretary of State. We issued the Writ, and the report, or plan, has been filed. In this original action petitioner asks this court to revise the reapportionment plan for the House of Representatives. We decline to do so.

Article 8, Section 1, originally provided that the Legislature would apportion itself. Amendment 23 to the Constitution, adopted at the general election of 1936, amended Article 8 and created the Board of Apportionment. The amendment gives the power of reapportionment to the Board and gives the limited power to this court “to revise any arbitrary action of or abuse of discretion by the board in making any such apportionment.” Ark. Const, art. 8, § 5 (emphasis supplied). In sum, the people took the power of apportionment from the legislative branch and placed it in the executive branch, subject to judicial review. The judicial branch can revise the reapportionment plan only when the executive branch has acted arbitrarily. The judicial branch cannot take away the discretion to make a decision which is reposed in the executive branch. Ark. Const, art. 4, § 1.

In Arkansas State Bank Comm’r v. Bank of Marvell, 304 Ark. 602, 604, 804 S.W.2d 692, 693 (1991), we set forth the proper role for the judicial branch in reviewing actions of the executive branch as follows: “Administrative action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis.” (citing Partlow v. Arkansas State Police Comm’r, 271 Ark. 351, 609 S.W.2d 23 (1980)). In the context of the present case “arbitrary” means that this court can redraw an apportionment plan only when the report of the Board is not supportable on any lawful rational basis.

Preliminarily, the petitioner contends that our case of Taylor v. Clinton, 284 Ark. 170, 680 S.W.2d 98 (1984), can be interpreted as holding that multi-member districts are unconstitutional per se, and thus, the 1991 apportionment plan is unconstitutional. The case does not so hold. It holds that under the Equal Protection Clause apportionment must be on the basis of population, although some divergence is permissible “incident to the effectuation of a rational state policy.” Id. at 174, 680 S.W.2d at 99 (quoting Reynolds v. Sims, 377 U.S. 533 (1964)). Further, nothing in Article 8 of the Arkansas Constitution prohibits multi-member districts, and the Supreme Court of the United States has approved the use of multi-member districts. Thornburg v. Gingles, 478 U.S. 30 (1986); White v. Register, 412 U.S. 124 (1973); Whitcomb v. Chavis, 403 U.S. 124 (1971); Burns v. Richardson, 385 U.S. 73 (1966); Fortson v. Dorsey, 379 U.S. 433 (1965).

In another preliminary argument the petitioner contends that in Wells v. White, 274 Ark. 197, 623 S.W.2d 187 (1981), we said that multi-member districts would not be approved by this court unless the Board first articulates the reason, or reasons, single-member districts were not proposed. Again, such was not the holding of the case. The case favorably quotes a federal district court case, Cosner v. Dalton, 522 F.Supp. 350 (D. Va. 1981) which, in turn, quotes the United States Supreme Court case of Chapman v. Meier, 420 U.S. 1 (1975), in which the Court said that when federal district courts order reapportionment of state legislatures they should generally avoid the use of multi-member districts but, when they choose to use multi-member districts, the federal district court should articulate precisely the reason single-member districts were not used. While we would welcome such a practice by the Board, we did not mandate it. In addition, we do not know whether the Board in its final session articulated its reasons for the multi-member districts because the petitioners have not provided us with a transcript of that session. While we will take judicial notice of the filed report, Butler v. Democratic State Committee, 204 Ark. 14, 160 S.W.2d 494 (1942), we do not take judicial notice of statements made at a hearing. In summary, the use of multi-member districts by the Board has never been held to be unconstitutional per se, and the judicial branch cannot impose its judgment on the executive branch solely because we might favor the use of single-member districts. Thus, neither of the petitioner’s preliminary arguments decides the case, and we must reach his main argument.

Petitioner’s main argument is that the Board’s plan is arbitrary because it provides multi-member districts in Fort Smith, Hot Springs, and Jonesboro, but provides single-member districts for the rest of the State. Before compiling the final plan, the Board determined that it wanted the local communities to express themselves about the plan of apportionment. The Board conducted twenty-five (25) public hearings and received correspondence from citizens throughout the State.

The parties have stipulated that previously only Pulaski County, Crittenden County, Fayetteville, Fort Smith, Hot Springs, and Jonesboro had multi-member districts. They further stipulated that the citizens in Pulaski County and Fayetteville now want single-member districts and that single-member districts were provided for those areas. The parties further stipulated:

The cities of Fort Smith, Hot Springs, and Jonesboro had been included in multi-member districts in each Plan of Apportionment at least as far back as 1960. The parties believe that multi-member district plans had been in effect in those areas prior to that, but have been unable to verify this fact from information available at the Secretary of State’s office.

At its hearing in Fort Smith the Board received testimony both for and against the continued use of a multi-member district, but in Hot Springs and Jonesboro the testimony was almost completely in favor of retaining the multi-member districts. Obviously, the Board thought that those who testified in favor of the retention of the multi-member districts more accurately expressed the views of the local community in the three districts. In general, those who testified stated that their community was one political community of interest that was best served by a multi-member district. Thus, the real issue is, did the Board act arbitrarily by allowing local communities to express whether they favored retaining multi-member districts or changing to single-member districts and then reapportioning in accordance with those wishes? To ask the question is to answer it. Following the wishes of a local community is a most appropriate function of a democratic state government, so long as the wish does not run afoul of a constitutional or statutory mandate. Here, there are no such violations. The population variances are within constitutional standards, and there is no allegation that the multimember districts would exclude a member of a recognizable political group from holding public office. Accordingly, we hold that the report of the Board of Apportionment was not arbitrary simply because it recognized the preference of local communities.

The petitioner additionally argues that the report is arbitrary because, at least in Fort Smith, the plan protects incumbent House members. Both this court and the Supreme Court have stated that avoiding contests between incumbent representatives is a legitimate reapportionment criterion. Karcher v. Daggett, 462 U.S. 725, 740-741 (1985); Wells v. White, 274 Ark. 197, 201, 623 S.W.2d 187, 189 (1981). Thus, the argument is without merit.

Petitioner also argues that the Board apportioned too few representatives to northwest Arkansas. We summarily reject the argument because the variance is within the constitutional standards set out in Gaffney v. Cummings, 412 U.S. 735 (1973). We cannot say the plan is arbitrary when it meets constitutional standards.

Finally, the opening date for filing for the office of Representative of the various districts is only a few days away. This decision must be made effective immediately so that the election officials and the prospective candidates can finalize their plans. Accordingly, we order that the mandate in this case be handed down immediately.

Petition denied.

Newbern, and Brown, JJ., concur in this opinion.

Robert L. Brown, Justice, concurring. I concur in the decision with some reservations.

This petition presents us with a discrepancy in treatment in the Plan apportioning legislative districts. Under the Plan, of the one hundred legislative districts at issue, only seven are subsumed in multi-number districts. We are asked to revise the Plan under the authority granted us by the State Constitution:

Original jurisdiction ... is hereby vested in the Supreme Court of the State (a) to compel (by mandamus or otherwise) the board to perform its duties as here directed and (b) to revise any arbitrary action of or abuse of discretion by the board in making such apportionment;

Ark. Const. art. 8, § 5.

Under this section, the sole issue that can be raised before this court, after mandamus, is the arbitrariness of the Plan. No other ground for relief is appropriate. The majority correctly states that our standard for determining arbitrary conduct is the absence of any rational basis to support the conduct. This court has previously endorsed, at least by dictum, community interest, incumbency, and geographic interests, among others, as bases for establishing legislative districts. See, e.g., Wells v. White, 274 Ark. 197, 623 S.W.2d 187 (1981). All three bases exist in this case.

Community interest, though, is only a legitimate basis where sentiment is effectively gauged. In this instance, the adequacy of notice of the public hearings in the three areas, and particularly at Fort Smith, has been called into question. The Stipulation of Facts agreed to by the parties states:

12. A staff hearing was held at the Chamber of Commerce Building in Fort Smith beginning at 9:00 a.m. on Monday, June 17, 1991. Lack of adequate notice was noted by participants at many of the hearings, and, specifically, no advance notice of the hearing in Fort Smith appeared in the local newspaper.

This is all this court has before it as a record on this essential procedural point. Other means of effecting notice may have been implemented; we simply cannot tell due to the paucity of information before us. Neither do we know whether 9:00 a.m. on a Monday morning was a convenient time for the various concerned interests to appear. The critical importance of giving full and effective notice of public hearings to be held at a convenient time goes without saying. This is particularly so where a change in legislative representation is at issue and where there is community sentiment on both sides of the issue. Here, community sentiment was divided according to the Stipulation:

24. The Board of Apportionment received testimony at its hearings both in favor of and against the continued use of multi-member districts in Fort Smith, Jonesboro, Hot Springs, and elsewhere. . . . The Board of Apportionment also received correspondence both in favor of and opposed to a continuation of multi-member districts in those areas. . . .

My doubts are grave about the effectiveness of the notice, at least in Ft. Smith, but based on the limited record before this court, I cannot conclude that the Board was arbitrary in assessing community attitudes in these three cities.

One other matter bears mentioning. The majority relies on incumbent residency as a legitimate criterion supporting the three multi-member districts. This court has referred to incumbency as a factor that may be considered in establishing legislative districts in Wells v. White, supra, as indicated above. Yet, the Wells case concerned a mandamus action to prevent formation of legislative districts that crossed county lines — not whether multi-member districts should be retained in a few areas. Incumbency is a dubious criterion to use when deciding whether single-member districts or multi-member districts should be employed and seems largely irrelevant to the issue. Other considerations should predominate in that analysis, including community interest and whether a representative voice will be arbitrarily curtailed for any segment of the population. I disagree with the majority’s use of incumbency in deciding this petition.

Newbern, J., joins.


text:
    Zealous Allen JONES v. STATE of Arkansas
    CR 91-134
    826 S.W.2d 233
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992

      Tim A. Womack, P.A., by: Tim A. Womack, for appellant.

      Winston Bryant, Att’y Gen., Catherine Templeton, Ass’t Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was charged with first degree murder, pleaded not guilty, was given a jury trial, and was found guilty of second degree murder. He retained new counsel and filed a motion for a new trial in which he alleged ineffective assistance of trial counsel pursuant to A.R.Cr.P. Rule 36.4, which has been superseded by Rule 37.1. The trial court denied his motion for a new trial. He appeals from both the judgment of conviction and the denial of the motion for a new trial. There is no merit in either appeal.

I.

Pursuant to Anders v. California, 386 U.S. 738 (1967), appellant’s new counsel has filed a motion asking to be relieved as counsel and, in the motion, states that there is no merit in the direct appeal of the judgment of conviction. Appellant was notified of his right to file a pro se brief within thirty days. See Rule 11 (h) of the Rules of the Supreme Court and Court of Appeals. He did not respond. The State concurs that the direct appeal has no merit.

Appellant’s trial attorney challenged the sufficiency of the evidence at the close of the State’s case, but failed to renew the motion at the close of all the evidence. Thus, the issue of the sufficiency of the evidence was waived. A.R.Cr.P. Rule 36.21(b); Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991).

Appellant’s trial attorney moved for a continuance three days before the trial and stated that he had not been able to examine the ballistics reports and the medical examiner’s report and that the medical examiner was not available for questioning about his report. The trial court denied the motion. A trial court’s denial of a motion for a continuance will not be reversed absent a clear abuse of discretion, and appellant has the burden of proof in showing the abuse of discretion. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). Appellant has not met this burden. The record reflects that he was not prejudiced because his attorney received the reports and had an opportunity to review them before trial.

Defense counsel objected to the admission of photographs of the victim at the crime scene. It would unduly lengthen this opinion to describe each of the photographs. It is sufficient to state that the photographs show the nature and extent of the wounds. The trial court did not err in admitting them. Williams v. State, 300 Ark. 84, 776 S.W.2d 359 (1989).

Defense counsel also objected to the admission of the murder weapon and the shells spent from it. The decision to admit physical evidence is discretionary with the trial court and will be upheld absent an abuse of that discretion. Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991). The murder weapon, if clearly identified, is competent evidence in a prosecution for homicide. Barber v. State, 182 Ark. 738, 32 S.W.2d 619 (1930). There is no dispute that the weapon introduced at trial was the weapon the appellant used, nor is there any dispute that the shells were spent from it. The trial court did not abuse its discretion in admitting into evidence the murder weapon and its spent shells.

We grant the motion of appellant’s new attorney and affirm the judgment of conviction and relieve the attorney from further representation of appellant in that part of the case.

II.

Appellant secondly contends that the trial court erred in denying his motion for a new trial on the ground of ineffective assistance of counsel. A claim of ineffective assistance of counsel must be examined in light of the criteria set out in Strickland v. Washington, 466 U.S. 668 (1984). Those criteria require a showing that counsel’s performance was so deficient, and that counsel made an error so serious, that he was not functioning as the “counsel” guaranteed by the Sixth Amendment to the Constitution; and the deficient performance must have resulted in prejudice so pronounced that it deprived the petitioner of a fair trial whose outcome can be relied on as just. Finely v. State, 295 Ark. 357, 363-64, 748 S.W.2d 643, 646 (1988). Under the second part of the Strickland standard, a defendant must show that there is a reasonable probability that, but for counsel’s error, the result of the trial would have been different. Duncan v. State, 304 Ark. 311, 802 S.W.2d 917 (1991).

Appellant argues that his trial counsel made four errors that were so serious they deprived him of a fair trial. First, he argues that his counsel had constructive notice of the existence of a video tape that showed the crime scene on the day of the murder, but counsel failed to discover it. The tape shows the victim lying on his back with a pool of blood to the left of his head, which would indicate that either he moved or was moved after appellant shot him in the back. Appellant contends that the tape corroborates his testimony that he and the victim were wrestling on the ground, with the victim on top, when he shot the victim. However, other evidence at the trial corroborated that part of appellant’s version of the fray. One of the State’s witnesses testified that the victim was on top of appellant when appellant shot him, and he then rolled off the top of appellant. Also, a photograph of the victim at the crime scene shows blood to the left of his head which indicates that either he moved or was moved after he was shot. Thus, appellant has not shown that there is a reasonable probability that, but for counsel’s error in failing to discover the video tape, the outcome of the trial would have been different.

Second, appellant contends that his trial counsel was ineffective in failing to timely file a motion for a continuance. He contends that if the motion had been timely filed and granted, he would have had additional time for plea bargaining. We could summarily end this argument by stating that there is nothing in the record to indicate that the motion for a continuance was denied because it was not timely filed. However, in addition, appellant’s attorney testified that the State made a plea offer of eight years, which the appellant rejected, and the appellant admitted that just before the trial he was told by his attorney that the victim’s family wanted a trial and the prosecutor said there would be no further plea negotiations.

Third, appellant argues that his trial counsel failed to engage in timely plea negotiations and failed to communicate a plea offer to him. The decision on whether to enter into plea negotiations is a matter of strategy beyond the purview of post-conviction relief. Lomax v. State, 285 Ark. 440, 688 S.W.2d 283 (1985). Furthermore, appellant has not shown that there is a reasonable probability that the outcome of the proceeding would have been any different if counsel had earlier entered into plea negotiations, since the prosecutor offered to recommend a sentence of eight years if the appellant would plead guilty, and appellant rejected it. Further, appellant admitted that just before trial his counsel told him that the prosecutor said there would be no further plea negotiations.

Appellant’s trial attorney testified that he told appellant about the State’s offer of eight years, and appellant rejected the offer. Appellant contends that the offer was never communicated to him, and therefore a new trial should be granted. Conflicts in the testimony are for the factfinder to resolve, and the factfinder is not required to believe the testimony of any witness, especially the defendant, who is an interested party. Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987).

Fourth, appellant argues that trial counsel failed to call a witness from the medical examiner’s office. Appellant did not raise this claim in his motion for a new trial but, instead, made the allegation for the first time at the post-trial hearing. The trial court did not rule on the issue. On appeal, we will not consider matters which are outside the scope of the petition for post-conviction relief. Morgan v. State, 296 Ark. 370, 757 S.W.2d 530 (1988). Further, the failure to call the witness did not affect the outcome of the trial.

Appellant argues that the errors of trial counsel, considered cumulatively, so prejudiced him that he was denied a fair trial. We do not recognize cumulative error in allegations of ineffective assistance of counsel. Parks v. State, 301 Ark. 513, 785 S.W.2d 213 (1990). We affirm the trial court’s denial of appellant’s motion for a new trial.

Affirmed on direct and post-conviction appeals.


author: Steele Hays, Justice.

text:
    Carl FARRIS v. STATE of Arkansas
    CR 91-202
    826 S.W.2d 241
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992

      William R. Simpson, Jr., Public Defender, by: Kim Crawford, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Carl Farris was convicted of capital murder, first degree battery and kidnapping, resulting in a sentence of life without parole. By this appeal, involving only the capital murder count, Farris argues two points of error: there was no evidence of premeditation and insufficient evidence to sustain a conviction of capital murder. We affirm the judgment of conviction and for purposes of discussion, treat the two points as one.

In reviewing the sufficiency of the evidence we consider the evidence in a light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). The evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991). We review only the evidence that supports the conviction and do not weigh it against other conflicting proof favorable to the accused. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987).

A person commits capital murder, as defined in Ark. Code Ann. § 5-10-101(a)(4) (1987), if:

[w] ith the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.

Premeditation and deliberation may be inferred from the circumstances of the case. Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991). Such circumstances include the character of the weapon used, the manner in which the weapon was used, the nature of the wounds inflicted and the conduct of the accused. Id.

Because there is no direct evidence of appellant’s guilt we recount the facts in some detail. Frank Givan, a friend of the victim, Danny Hull, testified that appellant was at the Hull home on the afternoon and evening of the murder. He said Hull was working on appellant’s truck and the three men were drinking. Hull had a gun in his possession and he produced it for the appellant to examine. The appellant, Hull and Givan rode around for awhile and when they returned Tim McAlister drove up. Givan last saw Danny Hull, McAlister and appellant around 8:30 p.m. at Hull’s house. When McAlister left shortly after Frank Givan, Danny Hull and the appellant were still there.

Little Rock Police Officer Richard Kindervater was called at approximately 9:20 p.m. to investigate a shooting at the Hull residence. He found Danny Hull lying face down in the backyard between the car and the house and Teresa Hull, Danny’s wife, shot in the hand. Officer Kindervater was given a description of the suspect and secured the crime scene.

Sergeant Danny Burnett testified that he was called to the crime scene. He was given a description of the suspect and told to go to the hospital to take a statement from Teresa Hull. As he was driving to the hospital he saw a man fitting the description of the suspect. He took the suspect into custody and could see blood on his clothing and face.

Ronnie Smith, a homicide investigator for the Little Rock Police Department, testified that as lead investigator he surveyed the crime scene, interviewed witnesses and collected blood samples from Danny Hull, the appellant and Teresa Hull. He testified that Danny Hull was lying on the ground and his shirt was pulled over his head as if someone had dragged him. Officer Smith described appellant as having blood on his clothing, face and right hand. Smith sent appellant’s clothing to the crime lab for analysis. Officer Smith testified that he performed a gunshot test on the appellant and took his fingerprints the night of the murder and sent them to the crime lab. Smith testified the murder weapon, a .22 Remington, was found approximately a block from the crime scene and it had been thrown through a church window.

Dr. Fahmy Malak explained the results of the autopsy he conducted on Danny Hull. Hull’s hands were coated with grease and mud and Hull had been shot three times from behind: Once in the left shoulder, once in the back of the head, and once in the neck. Bullets were retrieved from the head and larynx. Dr. Malak confirmed that Hull’s death was attributable to either the wound to the head or the neck.

Berwin Moore, firearms and explosive analyst for the Arkansas Crime Lab, testified that he test-fired the murder weapon and collected the bullets. The samples matched the bullets removed from the victim’s head and neck.

Lisa Sakevicius of the Arkansas State Crime Lab analyzed the gunshot residue kit, reflecting that appellant either discharged a firearm, was in close proximity to the discharge of a firearm or handled a recently discharged firearm.

Barbara Polite, a crime scene technician for the Little Rock Police Department, testified she dusted the truck at the Hull residence for latent fingerprints and collected blood samples from it. Ann McClain, latent fingerprint examiner for the Little Rock Police Department, testified that she received latent fingerprint cards from Barbara Polite. She compared the cards to the appellant’s fingerprint and found them to match.

Jane Parsons, a serologist at the Arkansas State Crime Lab, testified that she found the victim’s blood on the clothing and right shoe taken from the appellant.

Cynthia Driscoll, the victim’s next door neighbor, testified to seeing appellant at the victim’s house the evening of the murder. She testified that Teresa Hull and her children were visiting at her house that evening. Driscoll stated that Teresa Hull and her son, Josh, left at approximately 9:00 p.m. and about ten minutes later Josh returned screaming that his mother was being shot. When Driscoll asked Josh who was shooting her he replied, “The guy that my daddy was fixing the truck for.” Driscoll immediately ran to a store and called 911.

Another neighbor, Kevin Mallot, testified that Josh came to their home screaming that someone was shooting at his mother. When Mallot went next door Teresa Hull ran out and he saw the appellant behind her with a gun. Mallot said the appellant ran in the direction of Scott Hamilton Road toward the church where the murder weapon was found.

Teresa Hull testified that the appellant was with her husband as he worked on appellant’s truck the day of the murder. She left to visit next door at about 8:00 p.m. and returned with Josh about an hour later. She heard a vehicle pull up in her drive and saw the appellant walking toward her porch with her husband’s gun in his hands. Teresa testified she reached for the gun and appellant shot her in her right hand. She struggled with the appellant and the gun fired again. Appellant put the gun to her head and said, “Shut up, bitch. I will shoot you right here.” When Teresa asked where Danny was, appellant told her not to worry about Danny because he had “already taken care of him.” Teresa ran toward the Mallot home just as Kevin Mallot was coming to investigate.

That evidence, viewed in a light favorable to the state, fully meets the requirement of substantiability.

As to the matter of premeditation, appellant argues there is no evidence that Danny Hull was killed deliberately. He submits there are no eyewitnesses, no direct evidence and no circumstantial evidence from which to determine a culpable state of mind by the accused. All of which may be true, but we have said repeatedly that premeditation and deliberation may be inferred from the circumstances established by the evidence. Davis v. State, 251 Ark. 771, 475 S.W.2d 155 (1972). Here, cognizant of circumstances in their entirety, and noting that Danny Hull was shot three times from behind, we conclude that evidence of premeditation is not lacking.

Pursuant to Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, and pursuant to A.R.Cr.P. Rule 36.24, an examination of the complete record has been made for any prejudicial error which may have been objected to below, but not argued on appeal.

For the reasons stated, the judgment appealed from is affirmed.


text:
    Thomas Lee GILBERT v. STATE of Arkansas
    CR 91-199
    826 S.W.2d 240
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992

      Greene Law Firm, by: Omar Greene, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Thomas Lee Gilbert appeals from a judgment entered on a verdict of guilty of possession of a controlled substance (crack cocaine) with intent to deliver. The jury imposed a sentence of sixty years in the Department of Correction. Gilbert’s only point of error is that his motions for a directed verdict should have been granted. We hold the trial court ruled correctly.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990). Sergeant Monty Vickers testified that he was patrolling near 17th and Cedar Streets in Little Rock around midnight on December 2, 1989. He saw a group of males, including Gilbert standing in an alley near a black Oldsmobile. Gilbert and another individual were face to face looking down as others looked on. Gilbert had money in his hand. When Gilbert saw Vickers he ducked behind the automobile and though Vickers could no longer see Gilbert, he saw his hand place a match box under the right rear wheel of the Oldsmobile. Gilbert then stood up and walked away. Vickers stopped Gilbert for identification, retrieved the match box and, finding fifteen particles of what proved to be crack cocaine, placed Gilbert under arrest.

When his initial motion for a directed verdict was denied, Gilbert offered the testimony of Fred Gilbert who was present when appellant was arrested. He said appellant at no time stooped down and placed anything behind the back wheel of the car and he did not see the officer remove anything from the back wheel of the car.

On appeal Gilbert points out that he is presumed innocent and the burden of proof of every element of the offense rests upon the state. He argues that Officer Vickers assumed that a drug transaction was in progress and his testimony was colored by that presupposition. He submits that Vickers was thirty feet away in a dimly lit alley and could not possibly have seen Gilbert place an object behind the wheel of a car on the opposite side of Officer Vickers. These arguments are, of course, relevant to the issue of credibility and, as such, rest with the jury. Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). Obviously the jury resolved that conflict favorably to the state. The proof, constituting direct evidence of guilt, is clearly sufficient to sustain the conviction.

-Affirmed.


text:
    Suzanne HALE v. Jimmy LADD
    91-120
    826 S.W.2d 244
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992

      Peel & Eddy, by: James S. Dunham, for appellant.

      Mobley, Smith & Mobley, by: Jeff Mobley, for appellee.
   Steele Hays, Justice.

Appellant Suzanne Hale brought this action against appellee Jimmy Laid for breach of employment contract and for the tort of outrage. Her complaint alleged wrongful discharge and outrage based on sexual harassment while she was employed at Ladd’s Furniture and Appliance Store in Dardanelle. The jury returned a verdict for the defendant on the breach of contract claim and for the plaintiff on the tort of outrage claim, awarding punitive damages of $7,500 while denying compensatory damages. Because no compensatory damages were awarded the trial court vacated the award of punitive damages and entered judgment for the defendant.

Suzanne Hale moved for a new trial, contending the jury erred in the assessment of the amount of recovery and that the verdict was against the preponderance of the evidence. Ark. R. Civ. P. 59(a)(5 and 6). On appeal she raises two points of error: one, the trial court should have ordered a new trial and, two, it should have instructed the jury that punitive damages are not recoverable without compensatory damages. Because we find the undisputed evidence to be so clearly counter to the verdict, we think the trial court’s refusal to order a new trial was an abuse of discretion and accordingly we reverse and remand.

Appellant Suzanne Hale testified that she was agreeably employed as assistant sales manager at Southern Electric when Jimmy Ladd, a customer of Southern Electric, repeatedly urged her to come to work for him at Ladd’s furniture store. After first refusing, she agreed when Ladd offered to match her salary and benefits and intimated that he would like to see her take over the business when he retired.

Hale started working for Ladd in min-January of 1988. There were no problems for the first three or four weeks, but then by her account she became the object of frequent suggestive remarks and unwanted physical contacts from Jimmy Ladd. She said Mr. Ladd told her she was “sexy,” that she “turned him on.” He began touching her, putting his hands on her legs, back, and arms. At times he would try to press her hand against some part of his pants. On one occasion she was bending over to pick up something and he grabbed her hips and pressed himself against her very hard. He would try to kiss her and once he put his arms around her, grabbed her buttocks and pressed her against him. When she raised her hands to push him away he placed both his hands on her breasts. One incident involved his saying to her that if she would “just touch or kiss it he would come.”

In mid-April, after a visit from Suzanne’s husband, Mr. Ladd told her she should find work elsewhere, explaining that he would not be intimidated by her husband. She was given severance pay and told to get out. She testified that it was September before she found other employment, resulting in a loss of earnings of $2,342.63.

Former employees of Ladd Furniture corroborated generally and specifically Suzanne Hale’s account of her experiences. Eleanor Lawson testified that she decided to go to work for Ladd on the suggestion that she and her husband could buy the business when Ladd retired. While she worked for him, she described repeated instances of his bumping into her as if by accident, that he would rub her breasts and her buttocks.

Susan Miller testified that she went to work for Ladd on the representation that she would be given an option to buy the store, then she was discharged abruptly and without explanation after she had pointedly declined Ladd’s invitation to move in with him. Regina Henderson said Mr. Ladd told her that Suzanne Hale had the sexiest mouth he had ever seen and that he would like to take her to bed. James Ray Weve testified that Ladd told him in reference to Suzanne Hale that he would like to “get in her britches.” He testified that he was in the building when Ladd thought he and Mrs. Hale were alone during a lunch break and heard Ladd ask her to “kiss it on the head.”

It must be noted that the testimony of these witnesses was categorically denied by Jimmy Ladd with the exception of the testimony of Regina Henderson. Asked on cross-examination about her statement that Ladd had told her he would like to go to bed with Suzanne Hale, he said he did not recall making such a statement. Ladd’s explanation for terminating Suzanne Hale was that her husband had threatened him by describing an episode • involving a fellow employee of Suzanne’s at another job who pursued her, telling Ladd that he had “busted his skull and caved in his ribs.”

Notwithstanding the distinct imbalance in the proof supporting the plaintiffs outrage claim, it might be possible to conclude the jury had simply resolved an issue of credibility. But the verdict itself refutes any such inferences. The jury expressly found for the plaintiff on the tort of outrage and reenforced that finding by an award of punitive damages. Thus we readily conclude, as did the jury, that the evidence supporting the claim of outrage clearly preponderates in favor of the plaintiff, Suzanne Hale. Her testimony that she sustained pecuniary as well as emotional injury attributable to the harassment was not refuted or even challenged. She testified that she became increasingly nervous and had flairups of a spastic colon exacerbated by the strain associated with the harassment.

In deciding that appellant was entitled to a new trial we rely primarily on Takeya v. Didion, 294 Ark. 611, 745 S.W.2d 614 (1988). The abuse there was physical in that the defendant, a former lover of the plaintiff, slapped her, dragged her by the throat, broke her nose, threatened to kill her and tried to suffocate her by holding her nose and stuffing a sweater in her mouth. The jury found for the plaintiff but, as here, denied compensatory damages while awarding punitive damages of $75,000. The trial court denied plaintiffs motion for a new trial and this court unanimously reversed, citing Kroger Grocery & Baking Co. v. Reeves, 210 Ark. 178, 194 S.W.2d 876 (1946).

Appellee relies on Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988), where we affirmed the denial of a new trial under similar circumstances. The jury found for the plaintiff on the tort of outrage, awarding no compensatory damages and punitive damages of $3,700. Admittedly the dividing line between the two cases is indistinct. Suffice it to say that in Bell the plaintiffs proof as to compensatory damages was marginal and the court’s instruction to the jury limited any award of compensatory damages for past mental anguish only. Perhaps no better explanation need be sought than Justice Hickman’s concurring opinion to a Supplemental Opinion on Denial of Rehearing, Takeya v. Didion, 294 Ark. 614-A, 748 S.W.2d 332 (1988):

[A] ppellee has pointed out that our decision seems entirely inconsistent with our decision in January, Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988). I think the appellee deserves an explanation. The legal test in both Bell and this case is one of measuring the trial court’s decision, which necessarily is based on a weighing of the evidence. That means we also have to weigh the evidence as a matter of law. In Bell we could not say the trial judge abused his discretion. In this case the verdict on compensatory damages was clearly contrary to the preponderance of the evidence, and in our judgment the trial judge should have ordered a new trial. Just like trial judges, we sometimes look at a case and conclude the evidence is simply not there or it is overwhelming. In this case there was no doubt in our mind that the jury should have awarded compensatory damages.

Turning to the remaining point, that the jury should have been instructed that punitive damages are not recoverable in the absence of an award of compensatory damages, appellee correctly notes that appellant neither requested such an instruction nor tendered one of her own. Ark. R. Crim. P. 51. No extended discussion is called for. The rule in this state for many years has been that compensatory damages are a prerequisite to punitive damages. Takeya v. Didion, supra; Bell v. McManus, supra; Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979); and Kroger Grocery Baking Co. v. Reeves, supra. While the opposing view is not wanting in merit, we are unwilling to review our traditional position where the issue has not been preserved in the trial court.

For the reasons stated the judgment is reversed and the cause remanded for further proceedings.


author: David Newbern, Justice.

text:
    Glenn P. BROOKS v. CITY OF BENTON
    91-177
    826 S.W.2d 259
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992

      John I. Purtle, for appellants.

      George D. Ellis, for appellees.
   David Newbern, Justice.

This is a zoning case having to do with allegations that an ordinance of the City of Benton was enacted improperly and is thus invalid. The Chancellor awarded summary judgment in favor of the City’s assertion that its Zoning Code was properly adopted. We reverse the decision because a genuine issue of material fact remained to be decided. Ark. R. Civ. P. 56(c)

The appellants, who will be referred to collectively as “Citizens,” are Glenn P. Brooks, Melvin Congleton, John Bob Parks, Cecil Red, and Troy Wright. They, individually and as members of an unincorporated association, Citizens for Better Government, petitioned for declaratory judgment and injunctive relief in the Chancery Court. They asserted the City had enacted Ordinance 8 of 1989, which purported to rezone certain property, without proper notice and without attaching a zoning map as required by Ark. Code Ann. § 14-56-416(a)(2) (1987).

The City moved for summary judgment, appending affidavits from the Mayor, City Clerk, a Metroplan staff member, and the Director of Community Development. The affidavits asserted the Ordinance was enacted according to law. Citizens responded with a motion for summary judgment with affidavits asserting various defects in the procedure by which Ordinance 8 was adopted.

The appendix to Citizens’ brief does not contain a copy of the Chancellor’s order and thus violates our former Temporary Rule 9 pursuant to which it was filed. That Rule, however, unlike our current abstracting Rule, permitted us to observe the Chancellor’s order in the record. In the circumstances of this case, we choose to do so. The order is simplicity itself. There is no statement of factual findings or conclusions of law, and no basis is stated for the ruling.

Citizens’ notice of appeal referred both to the granting of the City’s motion for summary judgment and the denial of Citizens’ motion. However, Citizens have stated and argued only one point of appeal, i.e., that the Chancellor erred in granting summary judgment to the City.

1. Summary Judgment

When summary judgment is requested, the moving party has the burden of showing there are no genuine issues of material fact remaining. Rule 56(c); Smith v. Gray, 300 Ark. 401, 779 S.W.2d 173 (1989). On appeal, the evidence is viewed most favorably to the party resisting the motion, all doubts and inferences being resolved against the moving party. Rickenbacker v. Wal-Mart Stores, Inc., 302 Ark. 119, 788 S.W.2d 474 (1990).

a. The map

The primary unresolved fact dispute in this case concerns the zoning map which is attached to the regulation titled, “City of Benton, Arkansas, Zoning Regulation,” adopted by Ordinance 8 on March 27, 1989.

Ordinance 8 is entitled:

AN ORDINANCE ADOPTING THE ZONING REGULATIONS FOR THE CITY OF BENTON, ARKANSAS, BY REFERENCE RELATING TO: AUTHORITY, JURISDICTION AND PURPOSE; DEFINITIONS; ADMINISTRATIVE PROCEDURE AND ENFORCEMENT; GENERAL PROVISIONS; ESTABLISHMENT OF DISTRICTS; DISTRICT REGULATIONS; OFF-STREET PARKING AND LOADING FACILITIES; MOBILE HOMES; SPECIAL PROVISIONS.

Affidavits presented by Citizens from each of the individual plaintiffs stated no map was attached to the Ordinance, read with the Ordinance, or introduced at the combined hearing and board meeting at which Ordinance 8 was adopted. The legend imprinted on the zoning map now accompanying the Ordinance states it was prepared by Metroplan on March 22,1989, just five days prior to the passage of the Ordinance.

The City’s response included the minutes of the March 27 Board meeting along with affidavits of Charles Randel, Metroplan staff member; Rodney Larsen, Mayor; Buddy Burrow, Community Development Director; and Margaret Ramsey, City Clerk. There is nothing in the City’s evidence which contradicts the assertions raised by Citizens.

The minutes of the meeting do not mention a map attached to the Ordinance or any discussion of a map displayed with the Ordinance. The affidavit of Buddy Burrow states the zoning map “has been on continuous display in city hall from and after its adoption on March 27, 1989,” but does not say the map was on display at the hearing and meeting when Ordinance 8 was adopted.

Charles Randel states that “prior to the enactment of Ordinance 8 of 1989, the text of the ordinance, accompanying regulations adopted in conjunction therewith, and the zoning map, were discussed and debated in detail over several sessions of the Benton Planning Commission.” He says the Planning Commission held a public hearing on the regulations on February 27, 1989, and adopted them on March 9,1989, but his affidavit does not indicate that the regulations to which the map was ultimately attached were presented at the March 27 meeting of the City Board. Randel further asserts that Chapter V of the regulations “makes reference to, and authorizes filing and display of, the ‘Zoning Map, City of Benton, Arkansas’ ” and suggests that that part of the text of the regulation constitutes the “map” required by law, but there is no indication that this text was presented or attached to the Ordinance discussed and adopted at the meeting.

Cities have no inherent authority to enact legislation. That authority is dependent upon the Constitution and the General Assembly. City of Fordyce v. Vaughn, 300 Ark. 554, 781 S.W.2d 6 (1989). Municipal zoning authority is conferred solely by state enabling legislation. Taggart v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983). Failure to comply with mandatory procedural requirements of the enabling statute renders a zoning ordinance invalid. City of Searcy v. Roberson, 224 Ark. 344, 273 S.W.2d 26 (1954). A zoning ordinance “shall consist of both a map and a text.” § 14-56-416(a) (2). Compliance is mandatory, and failure renders a zoning ordinance void. City of Benton v. Phillips, 191 Ark. 961, 88 S.W.2d 828 (1936).

The purpose of the map requirement is to give notice of a zoning proposal so that, before adoption, residents may object or make suggestions, and after adoption, land purchasers and users may acquaint themselves with the zoning restrictions. Osborne v. City of Camden, 301 Ark. 420, 784 S.W.2d 596 (1990).

The City’s burden in seeking summary judgment before the Chancellor, was to show no issues of fact remained. Smith v. Gray, supra. The availability of the map at the meeting on March 27 was a disputed question of fact, and contrary to the assertions of the City on appeal, it is a material fact. It was their burden to present evidence in support of their motion to show that the map was presented along with the text of Ordinance 8.

As we resolve inferences in favor of the party resisting the motion, we conclude that Citizens presented evidence showing there was no map presented with the Ordinance, and the City contended the contrary. A genuine issue of fact remains to be decided.

b. Adoption by reference

The City argues the presence or absence of the zoning map at the meeting at which the Ordinance was passed was not material because the map was attached to the body of the regulation which was adopted by reference. This argument hinges on an alternative procedure for promulgating zoning ordinances set out in Ark. Code Ann. §§ 14-55-206 and 207 (1987) in relevant part as follows:

14-55-206. Publishing or posting requirements.
(a)(1)(A) All bylaws or ordinances of a general or permanent nature and all those imposing any fine, penalty, or forfeiture shall be published in some newspaper of general circulation in the corporation.
* * *
(b) As to ordinances establishing rules and regulations for zoning, construction of buildings, . . . , where such rules and regulations have been printed as a code in book form, the code or provisions thereof may be published by the municipality by reference to title of the code without further publication or posting thereof. However, not less than three (3) copies of the code shall be filed for use and examination by the public in the office of the city clerk or recorder of the municipality subsequent to the adoption thereof.
* * *
§ 14-55-207: Adoption of technical codes by reference.
(a) Every municipality in the State of Arkansas is .authorized by the passage of a municipal ordinance to adopt by reference technical codes, regulations, or standards, without setting forth the provisions of the code or parts thereof, if three (3) copies of the code, or the pertinent parts thereof, and any related documents are filed in the office of the clerk of the municipality for inspection and view by the public prior to passage of the ordinance.
(b) The term “technical codes” shall include any building, zoning, health, electrical, or plumbing codes, and the term “regulations” shall include any criminal code of the State of Arkansas.
(c) It shall be the duty of the municipality to give a notice to the public, by publication in a paper of general circulation within the municipality, stating that copies of the code, or the pertinent parts thereof, and the related documents are open to public examination prior to the passage of the ordinance adopting the code.

A municipality thus may pass by ordinance a comprehensive zoning code by reference to the title of that code only. The law requires that the code be in book form and the book with relevant related materials be available to the public prior to the passage of the ordinance adopting the code.

The Planning Commission for the city held a public hearing on the regulations. Notice was issued by the Planning Commission and presumably published prior to the meeting (the record does not establish when it was published). It reads as follows:

The City of Benton will hold a Public Hearing at 6:00 p.m. on February 27th, 1989, prior to the Council Meeting at the Tyndall Park’s Recreational Building for the purpose of discussing the proposed new preliminary Zoning Ordinance.

Clearly there is not a statement that copies of a regulation or an ordinance and related documents (particularly the disputed map) are available for public examination. This notice does not comply with the statutory procedure by informing the public of the availability of the regulations prior to the passage of the Ordinance. As there is no evidence of compliance with the Statute, we cannot sustain the allegation that the Ordinance was validly adopted on the basis of that notice.

There was another publication on March 10,1989, initiated by the Director of Community Services which provided:

The Benton City. Council, at their regular scheduled meeting of 3/27/89, 7:00 p.m. will address the issue of adopting, by reference, an Ordinance regulating Zoning within the City of Benton, Ar. Copies of this regulation titled, “City of Benton, Arkansas, Zoning Regulation” and related maps, are available for public examination at the office of the City Clerk, City Hall, 222 W. South St., Benton, Ar.

The legend on the map shows it was adopted by the Planning Commission on March 17,1989, but the printed portion of the legend shows the map was created on March 22, 1989; a curious conflict. If the latter date is correct, the map now appended to the Ordinance could not have been available for public examination until March 22. The map was the most vital piece of information for anyone to see to determine the proposed zoning. The City suggests there may have been “working maps” on file with the City Clerk prior to the action of the planning Commission’s adoption of the regulation, but there is no suggestion that the final form of the map was there. No property owner could have been advised of the ultimate proposed status of property by any other than the final map proposal. In Osborne v. City of Camden, supra, we made it clear that the “working map” concept was insufficient for notice to the citizenry.

While the Statute does not state a time “prior to the passage of the ordinance adopting the code” during which the proposed zoning map must be available, it must be available a reasonable length of time. The purpose of the publication requirement is identical to that of the requirement of a map in § 14-5 6-416 (a) (2), that is, to give notice of the city’s zoning proposal so that, before adoption, residents may object or make suggestions.

To permit a municipality to avoid public scrutiny by making the most definite piece of information in the code available only at the last minute and then adopting the code without offering that information to the public would defeat the legislative purpose of the notice requirements.

If the disputed map, as stated on its printed legend, did not exist when notice was published on March 10, that notice did not comply with the statutory requirement for adoption of a zoning code by reference. Even if notice had been given properly that the map was available March 22, the five-day period before adoption would not have given the citizens a reasonable time to observe it. The City was not entitled to summary judgment on the basis of having adopted Ordinance 8 by reference pursuant to §§ 14-55-206 and 14-55-207.

Given the factual dispute over whether the map was presented with Ordinance 8 for adoption, a disputed genuine issue of material fact remains to be resolved in determining whether the City complied with § 14-55-416.

Reversed and remanded.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    Christopher M. LeCLAIRE v. COMMERCIAL SIDING AND MAINTENANCE COMPANY
    91-276
    826 S.W.2d 247
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992

      Robert S. Blatt and William J. Kropp, III, for appellant.

      Warner & Smith, by: Gary W. Udouj, for appellee.
   David Newbern, Justice.

The issue in this case is whether the complaint of the appellant, Christopher M. LeClaire, stated facts upon which relief can be granted. LeClaire sued the appellee, Commercial Siding and Maintenance Company (Commercial), for damages for personal injury allegedly resulting from negligent entrustment of a motor vehicle. The Trial Court granted Commercial’s motion to dismiss pursuant to Ark. R. Civ. P. 12(b)(6). We hold the complaint stated facts upon which relief can be granted.

The complaint alleged that Commercial owned the vehicle in which LeClaire was a passenger when the injury occurred. Commercial had entrusted the vehicle to its employee, Garcia, who became intoxicated and further entrusted the vehicle to another person. The unnamed driver “was negligent in that he failed to keep the vehicle under proper control; failed to keep a proper lookout; was driving too fast for conditions; and was operating said vehicle under the influence of intoxicants.” It was further alleged that Commercial was negligent in failing to supervise Garcia and that prior to entrusting Garcia with the vehicle it knew, or should have investigated and learned, that Garcia “frequently became intoxicated” and had moving traffic violations. The complaint concludes by alleging that LeClaire was thrown from the rear of the vehicle and sustained injuries.

1. Respondeat superior

LeClaire argues the complaint stated facts upon which relief can be granted for negligent entrustment of the vehicle. In the alternative he argues it stated facts upon which relief can be granted pursuant to. the respondeat superior theory of vicarious liability. When a defendant employer generally denies liability a plaintiff may be permitted to pursue both the negligent entrustment and respondeat superior theories. See Elrod v. G. & R. Construction Co., 275 Ark. 151, 628 S.W.2d 17 (1982).

We agree, however, with Commercial’s response on this point. The complaint states that Garcia was entrusted with Commercial’s vehicle, that Garcia was Commercial’s employee, and that Garcia entrusted it to another who drove it in Scott County and caused the injury to the passenger. It does not state facts from which it can be determined whether Garcia was acting within the scope of his employment, see, e.g., National Bank of Commerce of El Dorado v. HCA Health Services of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990), or acting in furtherance of Commercial’s interest, see, e.g., Orkin Exterminating Co. v. Wheeling Pipeline, Inc., 263 Ark. 711, 576 S.W.2d 117 (1978), when he allegedly entrusted the vehicle to the unnamed driver. As we cannot sustain the complaint on the basis of respondeat superior, the sole question to be answered remains whether facts were stated upon which relief for negligent entrustment can be granted.

2. Negligent entrustment

The elements of a claim of negligent entrustment are stated in Arkansas Bank & Trust Co. v. Ervin, 300 Ark. 599, 781 S.W.2d 21 (1989). There must be proof that (1) the entrustee was incompetent, inexperienced, or reckless, (2) the entrustor knew or had reason to know of the entrustee’s condition or proclivities, (3) there was an entrustment of the chattel, (4) the entrustment created an appreciable risk of harm to the plaintiff and a relational duty on the part of the defendant, and (5) the harm to the plaintiff was proximately or legally caused by the negligence of the defendant. The dispute here is focused on the third, fourth, and fifth elements.

a. Entrustment

LeClaire argues the complaint clearly states that a vehicle was entrusted by Commercial to Garcia. Commercial argues there is no statement that a vehicle was entrusted by Commercial to the unnamed driver who caused the injury.

While Commercial’s response is factually unassailable, it is not relevant to LeClaire’s allegation that Commercial should be responsible for its entrustment to Garcia.

b. Appreciable risk, relational duty, proximate cause

LeClaire contends he alleged an appreciable risk by stating that Commercial entrusted the vehicle to Garcia while knowing or being under a duty to learn that Garcia frequently became intoxicated and had committed moving traffic violations. He argues he adequately alleged a duty on the part of Commercial not to have entrusted the vehicle to Garcia because, from the facts stated, foreseeability that injury was likely to result could readily be inferred.

The real rub in this case is the fact that it involves two entrustments. That is not a bar to recovery. 3 L. Lindahl, Modern Tort Law Liability and Litigation, § 34.06 (1988). Other jurisdictions have recognized that an original entruster may be liable for negligence in entrusting a chattel to one who further entrusts it, resulting in injury. We have decided a case on point, which we will discuss below, the United States Court of Appeals for the Eight Circuit has corrected analysed our law to that effect in Collins v. Arkansas Cement Co., 453 F.2d 512 (1972), and compatible cases decided by courts in other states are cited in H. Woods, Negligent Entrustment Revisited; Developments 1966-76, 30 Ark. L. Rev. 288 (1976).

Commercial attempts to distinguish a case cited in Judge Woods’ article, Stafford v. Far-Go Van Lines, Inc., 485 S.W.2d 481 (Mo. App. 1972), on the ground that the ultimate entrustee was in the vehicle with the knowledge or consent of the original entrustor when the vehicle was entrusted to the first entrustee.

We fail to see how knowledge of, consent to, or even approval by the original entrustor of the presence of the person to whom the chattel is ultimately entrusted makes a difference if liability of the original entrustor is predicated upon negligence in entrusting the chattel to the original entrustee.

Commercial also cites Mason v. Powell, 88 S.E.2d 734 (Ga. App. 1955), a case in which a mother allegedly allowed her son to use her car knowing he would operate it while intoxicated. He allegedly did so and allowed another incompetent driver to operate the car which caused a crash and injuries to the plaintiff. It was held that a demurrer should have been sustained as to the claim against the mother because there was no connection between the intoxication of the son and the injuries to the plaintiff. While the opinion does not mention the negligent entrustment doctrine as such, the Court did recognize the mother might have been liable for allowing her son to drive drunk. To the extent the Georgia Court of Appeals held as a matter of law that the son’s alleged negligent entrustment could not have been the result of the mother’s negligent entrustment and the cause of the injury, we must disagree, and we have held to the contrary.

In Garrison v. Williams, 246 Ark. 1172, 442 S.W.2d 231 (1969), we affirmed a judgment against Garrison rendered on the basis that he entrusted a vehicle to his son, Gary, who then entrusted it to another youngster named Baugher who caused an accident injuring Williams’s daughter who was a passenger when Baugher was driving after having been given the keys by Gary. Williams sued both Garrison and Baugher. The jury returned a verdict in favor of Williams with respect to his claim against Garrison but against Williams with respect to his claim against Baugher.

On appeal, Garrison argued his motion for judgment notwithstanding the verdict should have been granted because if Baugher was not negligent Garrison should not have been held liable. We concluded the jury could have found in favor of Baugher on the ground that Williams’s daughter assumed the risk when she rode with him.

With respect to the claim against Garrison, we noted the existence of Ark. Stat. Ann. § 75-315(c) and (d) imputing liability to a parent who allowed a child to drive a motor vehicle, making the parent jointly and severally liable for negligence of the child. A current (somewhat different) version of the statute appears at Ark. Code Ann. § 27-16-702(b) (Supp. 1991). We clearly did not decide the Garrison case on the basis of the imputed liability provision of the statute. Rather, we noted only that the existence of the statute did not in any way absolve the owner of the vehicle (the entrustor) of his own negligence. The Trial Court did not instruct on that statute, although it did instruct on two other statutes, now codified as Ark. Code Ann. §§ 27-16-304 and 27-16-305(1987), which make it a violation of the motor vehicle code knowingly to permit a person not authorized to operate a vehicle on the highway to do so. Violation of these latter statutes was instructed as some evidence of Garrison’s negligence.

Our discussion with respect to Garrison’s liablity thus was strictly of negligent entrustment. We held it was proper for Mr. Garrison to be held liable for negligent entrustment which resulted in his child, in turn, negligently entrusting the vehicle to another youngster who did not know how to drive. Addressing the matter of proximate cause, we held the evidence supported the conclusion that the father should have foreseen the “natural and probable consequence of his negligence.” Here are some additional quotations of the opinion:

As to the proximate cause and causal connection between the negligent operation of the automobile by young Baugher and the negligence of the appellant in entrusting the automobile to his fifteen year old son, it has been uniformly held that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence and that it ought to have been foreseen in the light of the attending circumstances. [Citations omitted.]
* * *
We conclude that the jury could have found that the appellant should have foreseen the natural and probable consequences of his negligence under the attending circumstances in this case.
* * *
The jury apparently found that the appellee assumed the risk of the willful and wanton negligent conduct of young Baugher and thereby waived her right of recovery against him. The jury did not find, nor were they requested to find, that the appellee assumed the risk of appellant’s own wrongful act of negligent and unlawful entrustment and we are unable to say, that as a matter of law, she waived her right of recovery against him.

We conclude the complaint stated facts upon which relief could be granted for negligent entrustment.

Reversed and remanded.

Holt, C.J., and Hays and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. I respectfully dissent. Arkansas has recognized the well-settled rule of negligent entrustment, especially as it applies to automobiles. AMI 609; see generally Woods, Negligent Entrustment: Evaluation of a Frequently Overlooked Source of Additional Liability, 20 Ark. L. Rev. 101 (1966), and Woods, Negligent Entrustment Revisited; Developments 1966-76, 30 Ark. L. Rev. 288 (1976); see also Arkansas Bank & Trust Co. v. Erwin, 300 Ark. 599, 781 S.W.2d 21 (1989). That theory of recovery, in my view, was never intended to cover facts such as those presented here.

Under the negligent entrustment theory, the owner here, Commercial Siding & Maintenance Company (Commercial), was required to use ordinary care not to permit its vehicle to be driven by a person whom it knew, or reasonably should have known, to be intoxicated, had a habit of being intoxicated, or to be an incompetent or reckless driver. In his second amended complaint, appellant added the following paragraph in an attempt to show his injuries resulted from Commercial’s negligent entrustment of allowing its employee, Daniel Garcia, to operate Commercial’s truck:

That the Defendant, Commercial Siding and Maintenance Company, was negligent in entrusting said vehicle to Daniel Garcia when they knew or should have known that Daniel Garcia was immature, reckless, and was not a mature, responsible person. The Defendant, Commercial Siding and Maintenance Company, was negligent in entrusting said vehicle to Daniel Garcia without providing continual and constant supervision of said Daniel Garcia. The Defendant, Commercial Siding & Maintenance Company, was negligent in entrusting the vehicle to Daniel Garcia without having furnished Daniel Garcia with written rules and instructions and regulations concerning his being entrusted with said vehicle. The Defendant, Commercial Siding and Maintenance Company, was negligent in that they did not make a prudent inquiry into Daniel Garcia’s background prior to hiring said Daniel Garcia and prior to entrusting said vehicle to his person. The Defendant, Commercial Siding and Maintenance, knew, or had they made prudent inquiry, should have known that Daniel Garcia frequently became intoxicated on alcoholic beverages and that he had other characteristics such as moving traffic violations and, therefore, their entrustment of said vehicle to him was negligent. (Emphasis added.)

Actually, in reading appellant’s amended complaint, I find it somewhat difficult to determine where the negligent entrustment lies. There is no recitation of facts in the complaint that reflects Garcia was intoxicated when he was entrusted with Commercial’s truck. Nor does the complaint allege Garcia had a habit of driving while intoxicated. The complaint does allege that Commercial should have known Garcia frequently became intoxicated, but it in no way relates the problem to driving. Appellant also mentions that Garcia “had other characteristics such as moving traffic violations,” and while I am unsure exactly as to the meaning of the phrase, it does not spell out that Garcia was an incompetent or reckless driver. In sum, the appellant’s complaint, in my view, falls short of setting out facts sufficient to show Commercial, as entrustor, knew or had reason to know of Garcia’s proclivity to be intoxicated when driving a motor vehicle; nor was he alleged to be an incompetent or reckless driver.

Even if I could agree the appellant’s complaint properly alleged negligent entrustment on the part of Commercial, I believe the majority has extended the doctrine beyond its intended purpose. The majority opinion relies on Garrison v. Williams, 246 Ark. 1172, 442 S.W.2d 231 (1969), where the entrustor let his fifteen-year-old unlicensed son take the family car knowing the son was going to the theater with another fifteen-year-old unlicensed minor. The son later let his companion have the car in order to take the companion’s girlfriend on a ride, and while so engaged, the girl was injured. This court upheld the girls’ verdict against the entrustor holding that the jury could have found that the car owner should have foreseen the natural and probable consequence of his negligence under the above-described circumstances.

In the present case, Commercial had no knowledge, nor should it have had under the facts alleged, that Garcia would turn possession of Commercial’s truck to another. Certainly, appellant alleges no facts that Commercial was aware of any possible companions whom it might surmise would relieve Garcia of his driving. Garcia is not alleged to have had any history of anyone accompanying him in Commercial’s truck for any purpose. In terms of what comprises a negligent entrustment case, Commercial’s entrustment cannot be said to have created an appreciable risk of harm to the appellant nor is it indicated, by the facts alleged, that a relational duty existed on the part of Commercial.

In his 1976 article, James Woods cited several cases (including the Garrison case relied on here by the majority) bearing on the point that, when considering the entrustor’s knowledge, the entrustment does not have to be specific before an injured party can recover. Davis v. Denby, 212 Va. 836, 188 N.E.2d 226 (1972); Stafford v. Far-Go Van Lines, Inc., 485 S.W.2d 481 (Mo. App. 1972); Garrison, 246 Ark. 1172, 442 S.W.2d 231. Instead, the entrustor’s liability could be established by his simply engaging in a course of conduct that permitted an incompetent to secure possession of the instrumentality or motor vehicle. But even in these cited cases where the negligent entrustment doctrine has been extended, the entrustor’s knowledge of his entrusteeemployee’s or agent’s incompetence was a predicate in drawing the entrustor’s liability into issue.

Particularly instructive is the Stafford decision, where the trucking company employed a driver, Mr. Perry. After obtaining permission from the company, Perry hired, at his own expense, the services of Roberts, an escaped convict. Neither the company nor Perry knew Roberts was a convict, but Perry did know. Roberts had no driver’s license and had no experience in driving the type truck involved. Perry later gave the keys to the truck to Roberts, who drove it away only to later ram it into the plaintiff’s building. The Missouri Court of Appeals, among other things, held that the company knew, or the jury could find it knew, that (1) Roberts was on its equipment (truck) as a helper with its driver, (2) the company had consented to and approved such arrangement, and (3) the incompetent, unskilled and unlicensed Roberts might have an accident with the truck if entrusted with it by the company’s driver, who had knowledge of Roberts’ deficiencies.

From reading the case cited in Judge Woods’ article and my own research, I am unaware of any authority where liability attached against an entrustor in a negligent entrustment situation where a person, unknown to and unauthorized by the entrustor, obtained possession of the entrustor’s motor vehicle from its employee or agent. As I noted earlier, the Garrison decision relied on by the majority for this proposition is not such authority, and the majority opinion cites no other.

For the reasons above, I would affirm the trial court’s dismissal of appellant’s complaint.

Holt, C.J., and Hays, J., join in this dissent.


text:
    Jack D. WALLNER and Billie F. Wallner v. Bishop Andrew J. McDONALD, Roman Catholic Bishop of the Diocese of Little Rock and Carolyn J. Bomberger and William A. Bomberger
    91-299
    825 S.W.2d 265
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992
    [Rehearing denied April 13, 1992.]

      Epley & Epley Ltd., by: Alan D. Epley, for appellants.

      Williams & Anderson, by: John Shannon, for appellees.
   David Newbern, Justice.

The appellants, Jack D. and Billie F. Wallner, have appealed from a decision denying their claim for specific performance. After holding against the Wallners, the Chancellor purported to amend the pleadings to state a claim for damages and transferred the case to circuit court. We dismiss the appeal because the Chancellor’s action in certifying that there was no need for delay was insufficient to comply with Ark. R. Civ. P. 54(b) and the order transferring the case to circuit court is not appealable. Ark. R. App. P. 2(a).

In 1986 the parishioners of St. Elizabeth Catholic Church in Eureka Springs began looking for a site to build a new church facility. Carolyn and William Bomberger donated a tract of land south of Eureka Springs to the Church for this purpose. Cletus Humm, Carolyn’s first cousin, arranged the transaction. The deed from the Bombergers to the Bishop, dated March 10, 1987 contained the following restriction: “Lands hereinabove described reverts to grantor in event church building or buildings are not under construction within two years from date of this conveyance.”

The donated land is on a hillside. Church members decided an adjacent tract on the hilltop would be more suitable. The 'Bishop then entered an agreement with the Wallners that the Wallners would buy the hilltop property and trade it for a portion of the land donated by the Bombergers. The-Wallners bought the hilltop site in September of 1987 and delivered a deed to the Bishop a year later.

By this time, the Bishop had become concerned about the reversionary language in his deed from the Bombergers. He twice asked the Bombergers to waive the clause, but they refused. As the Bishop would not perform the land exchange agreement, the Wallners filed a suit seeking specific performance. The Bombergers intervened, requesting that title to the property be quieted in them because construction had not begun within two years from the date of the grant.

The Chancellor found that the Bomberger deed vested a fee simple determinable in the Bishop, construction did not begin within the two year period, and title reverted to the Bombergers. As title to the property was in the Bombergers, specific performance of the land exchange agreement between the Bishop and the Wallners was impossible. The Chancellor also determined that the Bishop breached the oral contract with the Wallners to exchange land. He amended the pleadings on his own motion and transferred the Wallners’ claim against the Bishop to Circuit Court. The order stated that entry of judgment in the Bombergers’ favor was deemed final because “there was no just reason for delay.”

1. Appeal

As the Wallners’ claim was transferred to Circuit Court, a final judgment has not yet been entered. A judgment is final if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. See, e.g., Middleton v. Stilwell, 301 Ark. 110, 782 S.W.2d 44 (1990); Elardo v. Taylor, 291 Ark. 503, 726 S.W.2d 1 (1987). Rule 54(b) provides in part:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

A court making a determination pursuant to Rule 54(b) must state a factual basis for the express determination that there is no just reason for delay in appealing the judgment entered when other matters remain unresolved. Franklin v. OSCA, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992); Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987) . Here the Chancellor did no more than recite the words of the Rule, and that is insufficient. Absent compliance with Rule 54(b), we dismiss the Wallners’ appeal for lack of a final order. King v. Little Rock School Dist., 296 Ark. 552, 758 S.W.2d 708 (1988) .

2. Cross-appeal

The Bishop argues the Chancellor erred by transferring the Wallners’ claim to Circuit Court. An order transferring a suit from law to equity or vice versa is not a final, appealable order. Ark. R. App. P. 2(a); McIlroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982).

Appeal and cross-appeal dismissed.


author: Donald L. Corbin, Justice.

text:
    Steve YOUNG v. Britt RICE and the City of Little Rock
    91-194
    826 S.W.2d 252
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992

      Robert A. Newcomb, for appellant.

      Edward G. Adcock, Asst. City Att’y, for appellee.
   Donald L. Corbin, Justice.

Appellant, Steve Young, appeals an order of the Pulaski County Circuit Court, denying his request for access to certain information concerning the December 1990 promotions to lieutenant in the Little Rock Police Department. We have jurisdiction of this appeal because it requires the interpretation of the Arkansas Freedom of Information Act, specifically Ark. Code Ann. § 25-19-105(b)( 10) (Supp. 1991). The issue is whether the requested information is a personnel record that is exempt from disclosure under the FOIA because its release would constitute a clear unwarranted invasion of personal privacy. The trial court concluded that it was such an invasion. We affirm.

A brief discussion of the department’s lieutenant promotion examination is helpful in understanding this case. Two employees of the city’s personnel office testified that this examination has two components, a written examination and an assessment center evaluation. The assessment center portion of the test is a procedure where out-of-state police officers, equal to the rank of lieutenant or higher, observe the promotion candidates in three situations which are representative of the requirements of the job of a lieutenant. The first phase of the assessment center evaluation, the “in-basket” phase, is a test of the candidate’s ability to respond in writing to typical demands of a lieutenant. In the second phase, the “coaching and counseling” phase, the candidate plays the role of a lieutenant and advises a subordinate, played by the assessor, who has a performance problem. In the third phase, the “leaderless group discussion,” the assessors observe the interaction of four or five candidates who are given a scenario and asked to make recommendations thereon to the chief. The second and third phases of the assessment center evaluation are taped. In all three phases, the assessors observe the candidates’ behavior, take notes, and summarize their observations in an “assessor report form” which each assessor prepares for each candidate. In the assessor report form, the assessor rates the candidate on a five-point scale, with one representing poor performance and five representing outstanding performance, in eleven competency categories. The assessor then gives a written summarization of the candidates’ behavior in each of the eleven competency categories.

In January 1991, appellant made two FOIA requests of the city’s personnel office concerning records from the lieutenant promotion examination. Specifically, appellant requested all records pertaining to the assessment center evaluation portion of the lieutenant examination conducted on December 13, and 14, 1990. Appellant also requested any correspondence concerning the examination between the personnel office and any other agency. The city responded to the requests by stating that it would release the requested information only as it related to appellant; to release the requested information as it related to the other candidates would be an unwarranted invasion of their privacy. The city offered to release the assessor report form for each candidate with the respective names of the candidates deleted. The city also informed appellant that there was no correspondence between the personnel office and any other agency.

Dissatisfied with the city’s response to his request, appellant filed a complaint in circuit court asking that he be allowed to inspect and copy the requested record to determine if there had been a manifest error in the grading of the assessment center portion of the lieutenant test. After a bench trial, the trial judge entered its order identifying these records as personnel records and stating that “[ajfter an in camera inspection of the materials generated during the assessment phase of the promotion examination, the Court finds that to produce these materials in association with the names of the individuals would be a clear unwarranted invasion of privacy.” The trial court further found that the right of public scrutiny would be satisfied by the release of the assessor report forms with the names of the candidates deleted but with the names of the assessors intact.

On appeal, we do not set aside the trial court’s findings unless they are clearly erroneous. ARCP Rule 52(a). The trial judge carefully considered the evidence and concluded that the release of the requested information would constitute a clearly unwarranted invasion of privacy. We cannot say this conclusion was clearly erroneous.

Under our FOIA, records kept in the scope of public employment are presumed to be public records. Ark. Code Ann. § 25-19-103(1) (1987). However, even if a record is considered to be a public record, it may be exempt from disclosure under the FOIA or some other statute. Section 25-19-105 provides specific exemptions from disclosure. Any exemption from disclosure is to be narrowly construed. Legislative Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987). When the scope of an exemption is unclear or ambiguous, we interpret it in a manner that favors disclosure. Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). There is no dispute over the fact that the records requested in this case are public records. Thus, appellee, as the keeper of the requested records, has the burden of proving the records are exempt from disclosure. We conclude appellee has met its burden.

From the first time appellant made his FOIA requests, appellee has maintained that the requested records are exempt from disclosure under section 25-19-105(b)(10). That section states that:

(b) It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter:
(10) Personnel records to the extent that disclosure would constitute clearly unwarranted invasion of personal privacy.

We note that section 25-19-105(c)(l), the exemption for employee evaluation or job performance records, is not applicable here because there was no suspension or termination involved.

In support of its position that the requested records are personnel records which, if disclosed, would constitute a clear unwarranted invasion of personal privacy, appellee offered the testimony of Betty Demory, a city employee in charge of the assessment center. She was qualified as an expert in the field of testing and measurement and testified to the procedure for the assessment center portion of the lieutenant’s examination. She described the assessment center portion of the examination as follows:

During the assessment center it is a very stressful time. A person’s possible promotion can be riding on this, plus the candidates are very nervous. It is hard for them getting in that situation when they have especially the coaching and counseling session where we have a role-player playing the role of the sergeant, and they are trying to coach and counsel this person with the performance problems. I mean some of the behaviors that are exhibited, if it was disclosed could be embarrassing or humiliating to some of the candidates.
Candidates under stress react in a lot of different ways. They stutter and stammer. Their voice quivers. They turn — in some instances very red in the face. They may lose their train of thought. They may be shuffling their papers in front of them. They could lose control completely, start shouting or pounding on the table, cases of where they are so nervous that their hands are shaking the actual table during this coaching and counseling session. They — especially voices quivering, things like that. And these are things that are noted in the assessor’s notes that I feel would be humiliating or could cause possible embarrassment to the candidates if everyone was able to listen to those tapes or read the assessor’s notes.

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.

However, when applying federal FOIA privacy exemptions, the federal courts have found that a substantial privacy interest exists in records revealing the intimate details of a person’s life, including any information that might subject the person to embarrassment, harassment, disgrace, or loss of employment or friends. Brown v. FBI, 658 F.2d 71 (2d Cir. 1981). While we recognize that the federal FOIA personnel exemption is not identical to ours, we find the federal courts’ balancing of the two competing interests to be persuasive. See Department of Air Force v. Rose, 425 U.S. 352 (1976). Although the Brown case speaks in terms of the release of information such as marital status, paternity, medical conditions, and alcoholic consumption, we conclude the release of these embarrassing behaviors also touches on the intimate details of the candidates’ lives. Therefore, a substantial personal privacy interest is at stake here.

It is quite possible that the release of these records could subject the candidates to embarrassment and could perhaps threaten their future employment. To release these records would therefore result in a clearly unwarranted invasion of the candidates’ personal privacy. We reach this conclusion in part because, although the public’s interest is also a substantial interest, it is served by the release of the assessor report forms, even though the candidates’ identities remain unknown. The public’s right to scrutinize the lieutenant examination and decision making process is not ignored. Both the public policy behind the FOIA and the individual’s right to privacy are protected by the trial court’s order. We cannot say the order was clearly erroneous.

Affirmed.

Newbern, J., not participating.