author: W. W. Bassett, Jr., Special Justice. Rice Van Ausdall, Special Justice,

text:
    James W. STREIGHT et al v. Charles D. RAGLAND, Arkansas Commissioner of Revenues
    82-217
    655 S.W.2d 459
    Supreme Court of Arkansas
    Opinion delivered July 25, 1983
    [Rehearing denied September 19, 1983.]

      James F. Lane, for appellants.

      Timothy J. Leathers, Joseph V. Svoboda, Kelly S. Jennings, Wayne Zakrzewski, Ann Fuchs, Joe Morphew, by: John H. Theis, for appellee.
   W. W. Bassett, Jr., Special Justice.

This case comes before this Court on Appeal from a Decree of Special Chancellor H. Maurice Mitchell of the Pulaski County Chancery Court, Fourth Division, wherein the Special Chancellor under the Arkansas Constitution, upheld the constitutionality of state income tax exemptions on the retirement income of government employees. Since the legislation appellants challenge herein could affect the financial interest of the regularly elected members of this honorable court, all seven Justices of this Court, as well as all regular Pulaski County Chancellors, recused themselves from hearing or deciding any portion or part of this case. In due course, seven Special Justices were duly appointed as required by law and were thereafter sworn to participate and hear this specific case and to render their decision accordingly.

The within challenged legislation provides state income tax exemptions on retirement income of state and federal pensioners derived from certain government sources. The Appellants, plaintiffs below, are six private retired taxpayers. They sought to have their state income tax on retirement income derived from private sources in the years 1978, 1979, and 1980 declared “illegal exactions” or the noted exemptions for government retirees only to be found unconstitutional. This taxpayers suit was properly filed in the chancery court for Pulaski County. The court found that the Appellants had standing to sue and that the Arkansas Revenue Commissioner could not avail himself of sovereign immunity since the suit was not against the State of Arkansas. The Chancellor then decreed that the challenged tax exemptions were valid under the state constitution and were otherwise valid exercises of the taxation powers. We AFFIRM.

This controversy presents issues of contemporary legal and political significance, and comes at a time when dwindling government revenues are of paramount concern not only to those who wield the sovereign power of government but to the citizenry as a whole. Special interest groups of every variety seem to increasingly haunt the halls of power seeking any favor, tax exemption or otherwise, which the government might bestow upon them. It appears to be the way and nature of our political system that persons of similar or connected interests lobby for favor in the executive and legislative chambers of government in order to acquire some affirmative benefit or otherwise obtain relief from some burden through legislation, regulation and/or governmental discretion. However, the proper sphere of the judicial power is not to supplant the decisions of legislators and government executives with our notions of economic prudence. Rather, our charge is that of jurisprudence. As other branches of government are tied to the bounds of law established by our constitution, so is the judiciary. This is not to suggest or say that legislative or executive actions are above judicial scrutiny. To the contrary, the very essence of judicial review lies in the belief of our founders that governmental actions should be (as should be all things) subject to scrutiny and questioning. It is only through scrutiny that we forestall arbitrary and capricious government and give meaning and substance to the safeguards of our state and federal constitutions. The courts are not designed to legislate and may not constitutionally do so. But, the courts are indeed responsible for insuring that those who are so empowered execute and perform their duties permissible within constitutional bounds.

In this case we are confronted with a legislative exercise of the state’s power of taxation. Such a power is, as here, properly exercised by the state legislature. It is not unbridled power however. The means are restricted by numerous specific and general prohibitions within the constitutions, both state and federal. For instance, the 14th Amendment to the federal constitution requires the state to provide procedural due process in the exercise of its powers. The taxing power may not be exercised so as to excessively burden interstate commerce. Likewise, the federal equal protection clause prohibits arbitrary classifications by the state resulting in different treatment of persons similarly situated in the exercise of its powers.

The Arkansas State Constitution imposes restrictions of its own on the power to tax and the corresponding power to grant immunities from taxation. The General Assembly is prohibited under Art. 2, § 18 from granting privileges or immunities which upon the same terms shall not equally belong to all citizens. Also, the State’s 14th Amendment prohibits exercising state powers through local or special legislative acts.

Appellants, as private retired taxpayers, argue that the within tax exemptions constitute an immunity which does not upon the same terms apply to all citizens and further that the tax exemptions legislation are special acts, and therefore are in violation of the plain language of Art. 2, § 18 of, and Amendment 14 to, the Constitution of Arkansas. Appellants urge this Court to abandon the “rational basis” and “reasonable distinction” tests as outdated exceptions to Art. 2, § 18 and likewise to declare the “arbitrary separation” exception to Amendment 14 invalid. Although not raised or argued on appeal by Appellants, we will also consider if federal equal protection is infringed sua sponte. (see footnote 3)

To accomplish our examination, we must first determine what standard is to be applied and the extent of our own constitutional power of judicial review.

We have reviewed the numerous decisions issued by this Court in the past as well as those of the United States Supreme Court involving constitutional challenges based on equal protection type arguments as here. And, although we find the courts employing varying standards of review to legislation depending upon the circumstances of its enactment and operation, we find that tax legislation is generally reviewed under the traditional rational basis test. This standard continues to find acceptance in contemporary jurisprudence. We think the following commentary written ninety years ago explains the standard well:

“The Court can only disregard the Act of the legislature when those who have the right to make laws have not merely made a mistake, but have made a very clear one — so clear that it is not open to rational questioning. That is the standard of duty to which courts bring legislative acts; that is the test which they apply — not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the constitution has charged with the duty of making it. This rule recognizes that having regard to the great, complex, ever-unfolding exigencies of government, much which will seem unconstitutional to one man, or body of men, may reasonably not seem so to another; that the constitution often admits of different interpretation; that there is often a range of choice and j udgment; that in such cases the constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and whatever choice is rational is constitutional.” JAMES THAYER, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 143-44 (1893).

The rational basis test has long been applied by the Supreme Court in reviewing state legislation under the equal protection clause of the 14th Amendment which imposed special burdens or granted exemptions from such burdens through classification schemes. The standard has been used by this Court in reviewing government actions under the Arkansas privileges and immunities guarantee. And, since we have previously held that whether an act is “special” depends upon whether it “by force of an inherent limitation arbitrarily separates some person, place or thing from those upon which, but for such separation it would operate”; and since a determination of the arbitrary nature of an act is precisely the goal of the rational basis test, we have no hesitancy to find it applicable to any Amendment 14 analysis also.

Under the rationality standard of review, we must presume the legislation is constitutional, i.e. that it is rationally related to achieving a legitimate governmental objective.

This presumption we indulge locates the burden of proof. It imposes upon the party against whom it is directed the burden of proving the unconstitutionality of the legislation, i.e. that the act is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts. See, Lindsey v. Natural Carbonic Gas Co., 220 U.S. 61 (1911); DuPree, supra; Thompson v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S.W.2d 375 (1953).

The learned Special Chancellor below reasoned that the legislature may have sought to encourage entry into public service by granting the challenged tax exemptions. This superficially seems to be a reasonably conceivable and legitimate state objective. And, appellants chose not to question what interest a state government might have in encouraging entry into the federal civil service and military since the exemptions extend to those public servants also. This possible over-inclusion was never challenged in spite of the Chancellor’s correct assertion in his opinion that he possessed the power to fashion a partial remedy by holding the legislation invalid only in part and leaving the remainder intact. We have long held that such a remedy is lawful even where no severance clause appears in the act. Stanley v. Gates, 179 Ark. 886, 19 S.W.2d 1000, 1007 (1929).

In any event, the judiciary is allowed to hypothesize and we now reach a conceivable basis for the exemptions which we conclude are rational, reasonably distinctive and not arbitrary. It causes us to defer to legislative purpose because there is a rational basis for the tax exemptions. The General Assembly may have sought to encourage pensioners from without the state to relocate in Arkansas at retirement and for those who have worked here to remain. It cannot be disputed that a tax incentive acts as a lure to both. Again it is raised: Why restrict the incentive only to public retirees? Is this classification not arbitrary? We must reply in the negative.

The legislature, who is better equipped to investigate such matters, might have reasonably concluded that the reduction in revenue resulting from the exemptions is only worth the sacrifice if the lure works. It may have decided that the lure would operate at the desired level only among those retirees who are strongly and uniformly organized such as former public employees. We take note of the fact, as perhaps the legislature did, that public retiree organizations have enormous membership roles and disseminate vast amounts of literature to their members advising them of which states provide the most incentives and benefits to senior citizens who have retired. The legislature may have investigated and found that this disseminated literature and recommendations have a tremendous impact on where public employees live after retiring.

Before it is said that such hypothesizing is far afield, we re-emphasize that our role is not to discover the actual basis for the legislation. Our task is merely to consider if any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government and void of any hint of deliberate and lawful purpose. Since we can reasonably conceive of lawful purposes for the state’s classification scheme, it may not be held to have been arbitrarily enacted. Therefore, since the state’s classification confers a benefit upon public employees which is available to all workers of this calling and class throughout Arkansas, we hold that Art. 2, § 18 and the Federal 14th Amendment are not violated. Likewise, we hold that the within challenged tax legislation is not special legislation for it is not arbitrary. We are mindful of Beard admonitions regarding the judicial creation of any exceptions to the special acts prohibition. Here we create no exception because we conclude that the tax exemption acts are not special acts as that term has been defined. It is not enough that the state has separated some class from the operation of a law. The separation must be arbitrary.

The burden fell upon Appellants to demonstrate that no rational basis whatsoever could reasonably be conceived that demonstrated lawful purpose on the part of the legislature in passing the tax exemption legislation. The Chancellor was correct in his finding that Appellants failed to carry this admittedly heavy burden.

We note the reference in the opinion written by Justice Hays in DuPree, supra, at 9:

“This court is not now engaged in — nor is it about to undertake — the ‘search for tax equity’ which defendants prefigure. As defendants themselves recognize, it is the Legislature which by virtue of institutional competency as well as constitutional function is assigned that difficult and perilous quest.”

All tax measures usually involve some discrimination. The very graduated income tax system under which we all live requires some to pay a larger portion of their earnings in taxes than others and allows certain exemptions to some persons but none to others, but these discriminations are not constitutionally impermissible as long as they are not arbitrary and are supported by a rational and legitimate basis. It is simply impermissible for us to evaluate the wisdom of legislation. After all, certain legislation may seem foolhardy, absurd, and unfair to one person, or group of persons, but on the other hand, appear wise, prudent, and reasonable to another person, or group of persons. In sum, the interpretations and choices for kinds and types of legislation for the legislature are many and whatever choice, be it a mistake or not, is constitutional if that choice is rational.

The Decree of the Special Chancellor is affirmed.

Joining in this decision are Special Chief Justice Richard L. Mays and Special Justices George Plastiras, William M. Clark and Jerry B. Dossey.

Special Justice John W. Mann, Jr. concurs with the majority.

Special Justice Rice Van Ausdall concurs.

Rice Van Ausdall, Special Justice,

concurring. Legal training, scholarship, intellectual honesty, and a firm belief in judicial restraint, dictate I join in the majority opinion. Conscience dictates that I write this concurrence.

Were this Court coming to this question anew, without the prior decisions standing clearly as precedents setting out the strained distinctions and somewhat tortuous reasoning justifying the exemptions, this decision might well be different. But while it may be true such precedents are not rules of property (Board of Trustees v. Beard, 237 Ark. 423, 620 S.W.2d 295 [1981]), it has, at least to this writer’s mind, become a part of the “constitutional fabric.” (See 13 Ark. L. Rev. 238,249). When considering this question, the words of Omar come rushing back to mind: “Could you and I, with Him conspire, to grasp this sorry scheme of things entire; Would not we shatter it to bits; And remould it, nearer to the heart’s desire?” That the present scheme of things, with exemption heaped upon exemption, distinctions overdrawn, and fanciful reasons grasped out of the air to justify a special interest, is sorry, seems to only state the obvious.

But this writer, well steeped in the tradition of judicial restraint, and whose warp and woof of his early legal learning was that the role of the judiciary is to construe the law, and leave the law making to the legislature, must abstain from, at this late date, agreeing that the “rational basis” and “reasonable distinction” tests are to be overturned. They have become a part of this State’s “constitutional fabric.”

Probably no useful purpose is served by observing that these exemptions point out the inordinate, and unhealthy, influence that the beneficiaries of these enactments have in the legislative halls. But in the interest of conscience, this observation must be made.

But finding that the legislation is pernicious, is not a finding that it is unconstitutional. Judicial restraint, if it is to have meaning, must be observed, even in the face of legislative mischief, so long as that mischief is not contrary to the constitution. This Court has settled what the constitution says to this question. Reversing these decisions would be a violation of the restraints inherent in the judicial process, and cause this Court to engage in the same type of breach of trust that the General Assembly did when that body enacted these exemptions. As no less a personage than Justice Felix Frankfurter points out, judicial restraint is the “essence in the observance of the judicial oath.”

We are not unmindful of the concept of the “result oriented” method of deciding constitutional questions, and that this approach enjoys considerable popular currency in the legal community. 27 Ark. L. Rev. 585, 601. This approach frankly admits the role of the judiciary to be a law giver, governed not so much by the written words of the constitution, and the precedents, but by the needs of society. This concept views the constitution as Darwinian in nature, always in a state of becoming, changing as the forces in society change. This view appears to be premised on the notion that judges are best equipped to determine what is best for the common weal. In addition to this premise having doubtful validity in fact, it smacks of elitism.

To a free society, the constitution is the political and governmental Holy Writ. It is the shrine before which every knee must bend, and every tongue confess. This fidelity is demanded no less from judges, elected or appointed, than any other member of society. Changes in this document should proceed only from the collective genius of the body politic.

       Under Ark. Stat. Ann. § 12-3309 (Supp. 1981), all retiree benefits from the Arkansas Public Employees Retirement System, the Arkansas State Police Retirement System and the Arkansas State Highway Employees Retirement System are exempt in full. That section also exempts the first $6,000 in annual benefits from state supported college and university alternate retirement plans. Ark. Stat. Ann. § 84-2008 (2) (f) (Repl. 1980) and Ark. Stat. Ann. § 80-1444 (10.01) (Repl. 1980) exempts all retirement income derived from the Arkansas Teachers’ Retirement System. Section 8 (2) (f) of Title 84 also extends a first $6,000 exemption to all annuities received by retired federal, state, county, municipal and school district employees and officers through any federal retirement system or any state, county, municipal or school district retirement system benefitting officials and employees of the State of Arkansas or any other state, or employees of any city, town, county or school district of the State of Arkansas or any state. Sec. 8.3 and 9 specifically extend the $6,000 exemption to federal civil service and military retirement benefits.

        Ark. Const., Art. 16 § 13 provides that any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against enforcement of any illegal exactions whatever.

        Ark. Const., Art. 2 § 18 consists of one of the several restrictions placed on the exercise of government power in the Declaration of Rights. It provides: “Privileges and Immunities — Equality. — The General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.”
      Art. 2, § 29 provides, among other things, that: “. . . we declare that everything in this article is excepted out of the general powers of the government, and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void.”

        Ark. Const., Amend. 14 provides: “Local or special acts prohibited. — Right to repeal acts by legislature. — The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.”
      Although the parties have not raised or argued the application of the equal protection clause of the 14th Amendment to the United States Constitution, we have no hesitancy to consider that issue sua sponte later herein for in a taxpayers’ suit, the plaintiffs represent the citizens as a whole and cannot be permitted to waive contentions that should be asserted. Chandler v. Bd. of Trustees of the Arkansas Teachers Retirement System, 236 Ark. 256, 365 S.W.2d 447 (1963).

      A chancery court has jurisdiction to enjoin the collection of an illegal tax. Harrison v. Norton, 104 Ark. 16, 148 S.W. 497 (1912).

      Ark. Stat. Ann. § 27-603 (Repl. 1979).

      We agree since standing has been held to be granted by the Arkansas Constitution (Art. 16 § 13, supra) in such actions. This standing is not restricted to illegal local exactions, but to any exactions whatever, which should include state taxation of local citizens. We nevertheless could find taxpayer standing under the now established double nexus test employed by federal courts if we were so inclined since the exemptions were enacted under the taxing power and are challenged under specific restrictions on the exercise of that power in the Declaration of Rights. We do not rely on that test specifically nor adopt its use, but mention it to remove any doubt on the standing issue. See Flast v. Cohen, 392 U.S. 83 (1968), per Douglas concurring, “Taxpayers can be vigilant private attorneys general.”

         Ark. Const., Art. 5, § 20 provides that “The State of Arkansas shall never be made Defendant in any of her Courts.” We agree with the Chancellor that this provision is general in nature and conflicts with the more specific provision granting taxpayer standing (Art. 16 § 13). Since that provision implies a right to sue which would be rendered meaningless if Art. 5 § 20 controlled, we employ the well known rule of construction holding that the more specific controls the general. Ridgeway v. Catlett, 238 Ark. 323, 379 S.W.2d 277 (1964).

       See, Gulf, C. & S. F. Ry. v. Ellis, 165 U.S. 150 (1897). The equal protection clause has been used to invalidate commonplace economic regulations on many occasions despite the early view that the scope of the equal protection clause as part of the Civil War Amendments was confined to review of state discrimination against Negroes as a class in the Slaughter-House Cases, 83 U.S. (16 Wall.) (1873).

        DuPree, et al v. Alma School District, 279 Ark. 340, 651 S.W.2d 90 (1983); see also, U-Drive-Em v. Wiseman, 189 Ark. 1163, 76 S.W.2d 960 (1934) where this Court initially embraced the rational basis test.

        Board of Trustees of Municipal Judges and Clerks Fund v. Beard, 273 Ark. 423, 620 S.W.2d 295 (1981). This Court also indulged the legislation with a presumption of constitutionality which is likewise an essential part of rationality analysis. It is noted by the Court that many laws are challenged jointly under Art. 2, § 18, Amend. 14, and the federal equal protection clause. This is undoubtedly due to jurisprudential thought that each of the separate provisions all aim to prohibit arbitrary classifications and favoritism by the legislative branch. We feel they all fall under the general umbrella of the “equality” and “equal protection” guarantees which are found within various sections in separate parts of our constitution. See, footnote 3 of the DuPree case, supra; see also, Hickman, J., concurring. “Equality ... is a principle repeatedly contained in our constitution ... under Art. 2, § 3, Art. 2, § 18, and even in Amend. 14.” We further note that we do not consider the present legislation to be “local” since that term denotes only geographic classifications as opposed to “special” legislation, which concerns classifications of persons. See, Beard, supra.

       We are aware of the insight of Justice Stone in the famous footnote 4 of United States v. Carolene Products Co., 304 U.S. 144, 152 (1938) where he laid the groundwork for the now fundamental doctrine of varying standards of review. He stated, “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, ...” We have considered the application of this reasoning here since Amend. 14 and Art. 2, § 18 are specific restrictions on the means of exercising state power, including the power of taxation. However, we leave for another day, the question of whether the burden of proof should be shifted to the government where the legislation appears on its face to fall within a specific restriction on the exercise of power. Here we must exercise j udicial restraint under the well settled principle of stare decisis, deferring to established reason. Neither are we called upon here to decide if more exacting judicial scrutiny is correspondingly called into play when the government power to tax infringes upon fundamental rights such as those embraced within the first amendment of the federal constitution, see, Bob Jones University v. United States, _ U.S _, 103 S.Ct. 2017, 76 L. Ed. 2d 157 (1983), and held equally specific when applied to state action via the 14th Amendment.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Jane CZECH, City Clerk of the City of Little Rock v. Lee A. MUNSON, Chancellor
    83-208
    656 S.W.2d 696
    Supreme Court of Arkansas
    Opinion delivered September 12, 1983

      R. Jack Magruder, III, City Atty., by: Hugh L. Brown and James L. Sloan, Asst. City Attys., for petitioner.

      Steve Clark, Atty. Gen., by: E. Jeffery Story, Asst. Atty. Gen., for respondent.

      John Wesley Hall, Jr., for real parties in interest.
   George Rose Smith, Justice.

The only question presented by this application for a writ of prohibition is whether a chancery court has jurisdiction to review a city clerk’s rejection of a referendum petition lacking the minimum required number of signatures, the facts being undisputed.

Last April the Board of Directors of the City of Little Rock passed an ordinance regulating taxicab companies. On the last day for the filing of a referendum petition Jim Hudson and others tendered to the city clerk petitions admittedly containing only 6,175 signatures. Under the controlling statute the minimum required number was 6,576, being 15% of the highest vote cast at the last preceding general election for any position on the city’s Board of Directors. Ark. Stat. Ann. § 19-717 (Repl. 1980). The city clerk counted the signatures, as the law required her to do, found them deficient, and refused to accept the petition.

The proponents of the petition filed a complaint in the chancery court, asking that Section 19-717 be declared unconstitutional and that the city clerk be ordered to accept the tendered petition. The defendant’s motion to dismiss for want of jurisdiction was denied by the chancellor, who held that under Amendment 7 he had jurisdiction to review the action of the city clerk. This application for a writ of prohibition was then filed by the city clerk.

The motion to dismiss the complaint should have been granted, for on the undisputed facts the complaint does not state a cause of action. As far as the signature requirement is concerned, the case is governed by Dixon v. Hall, 210 Ark. 891, 198 S.W.2d 1002 (1946). There we held that when a state-wide petition does not contain the required minimum number of signatures, the Secretary of State cannot grant an extension of time beyond that allowed by law. Our reasoning:

Our view is that, under any rational construction, it was intended that a petition be filed within the time fixed by Amendment No. 7. To be a petition it must, prima facie, contain at the time of filing the required number of signatures. Correction and amendment go to form and error, rather than to complete failure.

We are not asked to overrule that decision, nor would we do so. Amendment 7 mandates certainty in an area where certainty is desirable. Those who undertake the circulation of petitions requiring thousands or tens of thousands of signatures should know at the outset the goal that must be reached before the filing deadline. Additional time may then be allowed if some signatures are found to be invalid.

The proponents ask us to strike down Section 19-717, which sets the minimum at 15% of the highest vote for a board member. Amendment 7 had fixed the minimum at 15% of the total vote cast for the office of mayor at the last preceding general election. When the legislature abolished the elective office of mayor in giving cities the option of adopting a city manager form of government, which Little Rock did many years ago, the lawmakers filled the gap that would otherwise have existed by adopting a minimum signature requirement based on the highest vote for a city director.

It is argued that the statute is unconstitutional, because the legislature might have chosen some smaller minimum, such as 15% of the vote last cast for the office of mayor in Little Rock many years ago or 15% of the lowest vote (instead of the highest) most recently cast for any position on the city board. The only basis for this novel argument is that Amendment 7 should be given a liberal construction. That is true, but the choice of how the amendment is to be implemented to meet new conditions rests with the legislature, not with the courts. The statute actually adopted does no violence to the overall intent of Amendment 7. It is not the judiciary’s place, under the guise of liberal construction, to nullify the judgment of the legislature.

Writ granted.

Dudley, J., not participating.


author: John I. Purtle, Justice.

text:
    Ricky MOORE and Harvey JONES v. STATE of Arkansas
    CR 83-52
    656 S.W.2d 698
    Supreme Court of Arkansas
    Opinion delivered September 12, 1983

      William R. Simpson, Jr., Public Defender, by: Carolyn Baker, Deputy Public Defender, for appellants.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

The appellants were tried before a jury and found guilty of two counts of aggravated robbery and one count of criminal attempt to commit capital murder. They were both sentenced to fifteen years for each aggravated robbery count and thirteen years for attempted capital murder. For reversal the appellants argue: 1) the information on count three was insufficient to apprise them of the crime charged, 2) the evidence of attempted capital murder was insufficient to support the conviction, 3) aggravated robbery is a lesser included offense of attempted capital murder, and, 4) the trial court erred in refusing to give an instruction that aggravated assault is a lesser included offense of attempted capital murder. We agree with the last argument. The case is affirmed in part and reversed in part.

About 3:30 a.m. on April 2, 1983, Ernestine Davis, Lawrence Jacko and Theodore Jacko, Jr. were victims of an aggravated robbery. The robbery occurred on Jones Street in Little Rock, Arkansas. After taking money and other items, the robbers fled in one victim’s vehicle, a white Chevrolet Impala. The robbery was reported to the Little Rock police shortly after it occurred by a witness to the robbery, Gayla Beard, who stopped at a nearby convenience store to make the call. After reporting the incident to the police the witness went to the scene, spied the robbers and commenced following them. She chased the robbers, sometimes at speeds in excess of sixty miles per hour until she caught up with them at 14th and Park. At this time the two occupants of the white Impala fired several shots in the direction of the witness. The witness was not injured, nor was her automobile damaged by the shots.

The witness returned to the convenience store where the police had arrived. While she was reporting to an officer word came over his radio that the automobile had been found. The appellants were picked up soon after the stolen car was recovered. The witness and the victims viewed a lineup later that same day and identified the appellants as the robbers and as the persons who fired pistols at the witness.

The appellants were charged on two counts of aggravated robbery pursuant to Ark. Stat. Ann. § 41-2102 (Repl. 1977) and one count of criminal attempt to commit capital murder pursuant to section 41-701 (Repl. 1977). The criminal attempt count specifically stated it was based upon the attempt to murder witness Gayla Beard.

During the trial the victims and the witness identified the appellants as the robbers and as the persons who fired shots at the witness. Some of the testimony was contradictory. The court refused to give appellants’ requested instruction No. 3, a modified AMCI 1604, which was to the effect that criminal attempt to commit capital murder included the lesser offense of aggravated assault.

Appellants’ first argument for reversal is that the trial court erred in holding that count three of the information (attempt to commit capital murder) was sufficient to apprise the defendants of the crime charged. The count relating to the criminal attempt gave the date of the alleged offense and stated that the conduct created a substantial step in a course of conduct intended to culminate in the murder of Gayla Beard. It seems quite clear under the circumstances of this case that the conduct charged had to arise pursuant to Ark. Stat. Ann. § 41-1501 (1) (a) (Repl. 1977).

The court should have required the state to identify the specific statute it relied upon to support count three of the information. Failure to do so, however, did not prejudice the appellants. By process of elimination it is very clear that 41-1501 (1) (a) is the only applicable section to the charge in count three. Had there been serious doubt as to which law appellants were charged with violating it would have been incumbent upon them to request the information well in advance of the date of trial. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). Therefore, we do not find prejudicial error in the refusal to furnish appellants specific information about the particular section of the statute after the trial was in progress.

Appellants also argue that aggravated robbery is a lesser included offense of attempted capital murder and ask that the sentences for aggravated robbery be set aside pursuant to the provisions of Ark. Stat. Ann. § 41-105 (Repl. 1977). The record does not reveal a timely objection or that this matter was even presented to the trial court. Failure to present a matter to the trial court precludes our consideration on direct appeal. Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981).

A review of the record indicates that the evidence was sufficient to support the conviction for attempted capital murder. We must, however, reverse this conviction because the court refused to give appellants’ requested instruction No. 3 (AMCI 1604) which would have instructed the jury that aggravated assault was a lesser included offense to the charge of attempt to commit capital murder. Aggravated assault is defined in Ark. Stat. Ann. § 41-1604 (Repl. 1977) as follows:

(1) A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person.

Aggravated assault includes conduct “manifesting extreme indifference to the value of human life.” Sub-section (1) (a) of 41-1501 (capital murder) describes conduct “under circumstances manifesting extreme indifference to the value of human life.” Both statutes describe the same course of conduct. Murder in the first degree (Ark. Stat. Ann. § 41-1502) has the same language. Under the facts presented in this case it was a question for the jury to determine whether the appellants were fleeing at the time they shot at the witness. If they were not fleeing from the scene of a felony, the offense should have been criminal attempt to commit murder in the first degree. The jury should have been instructed, as requested by the appellants, that attempted murder in the first degree and aggravated assault were lesser included offenses in the charge of criminal attempt to commit capital murder. When there is a rational basis for a verdict acquitting a defendant of the offense charged and convicting him of the included offense, an instruction on a lesser included offense should be given. It is reversible error to fail to give such instruction when warranted. No right of an accused has been more zealously protected. Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980).

In light of the foregoing, we find that the convictions and sentences for aggravated robbery as to both appellants must be affirmed. The convictions for attempted capital murder are reversed and the trial court is instructed to proceed in a manner not inconsistent with this opinion.


author: Robert H. Dudley, Justice.

text:
    Wallace E. FLOYD v. STATE of Arkansas
    CR 83-57
    656 S.W.2d 701
    Supreme Court of Arkansas
    Opinion delivered September 12, 1983

      John W. Settle, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

The sole issue in this case is whether the appellant, who was incarcerated in prison after being convicted on another charge, was afforded a speedy trial as defined by the Arkansas Rules of Criminal Procedure, Art. VIII, Speedy Trial, Vol. 4A (Repl. 1977 and Supp. 1983).

The time for trial commenced running on August 25, 1981, the date appellant was incarcerated in jail to await trial on this charge. A.R.Cr.P. Rule 28.2. Appellant remained in jail awaiting trial until January 21, 1982 when he was incarcerated in prison pursuant to conviction on another charge. He was not tried on the charge now before us until November 16,1982, a period of fourteen months and twenty-six days from the date the time commenced to run.

A defendant incarcerated in prison for another offense must be tried within twelve months from the date time commences to run, excluding authorized delays, or else the charge must be dismissed. A.R.Cr.P. 28.1 (b). The state has failed to show any authorized cause for delay. The conviction must be reversed and dismissed.


author: Steele Hays, Justice. Robert H. Dudley, Justice, John I. Purtle, Justice,

text:
    KARK-TV v. Andre SIMON and Barry SMITH
    83-47
    656 S.W.2d 702
    Supreme Court of Arkansas
    Opinion delivered September 12, 1983

      Owens, McHaney if Calhoun, by: James M. McHaney, Sr. and James M. McHaney, Jr.; and Baker if Hostetler, by: Bruce W. Sanford and Lee Levine, for appellant.

      Kaplan, Hollingsworth if Brewer, P.A., by: Peter A. Miller, for appellees.
   Steele Hays, Justice.

This defamation case was brought by Andre Simon and Barry Smith, appellees, against KARK-TV of Little Rock, appellant. On the evening of August 11, 1982, while Smith and Simon were shopping in a store at the Galleria Shopping Center, the police received a call that the store was being robbed by two men. At about 8:30 p.m., eight policemen converged on the scene. They handcuffed and searched the appellees and placed them in a squad car. Carolyn Long, a reporter for KARKTV, happened to be in another business establishment two doors down. Information was relayed to her from someone who was listening to the police scanner that there was a potential robbery situation. Long met the camera crew that had been sent by the station and had the incident filmed. She questioned the police but got no comment from them. She then interviewed a clerk in the store from whom she got only some vague responses. The newsteam then left the scene. At 9:00 p.m., or shortly after, appellees were released when the officers decided that the caller was mistaken and no crime was in the making. The following report was broadcast on the ten o’clock news:

Quick action by Little Rock Police tonight stopped a robbery attempt at Custom Design at the Galleria Shopping Center. Details are sketchy, however it appears two suspects backed their car up to the store in order to rob it. For a time, the two men allegedly held a store clerk hostage. The clerk was shaken, and wasn’t sure about exactly what had happened.

The appellees were not named, but the newscast included scenes of the police placing the appellees in a squad car. It was stipulated the newscast was viewed by 82,000 households. After trial the court entered judgment on a jury verdict against KARK awarding the appellees $12,500 each as compensatory damages. On appeal, we reverse and remand.

Appellants argue they were entitled to judgment as a matter of law because the news report was substantially accurate and was privileged. While we have recognized these concepts generally, we cannot say that under the facts in this case the news report as a matter of law was substantially accurate or that the matter was privileged. In Pritchard v. Times Southwest Broadcasting, 277 Ark. 458, 642 S.W.2d 877 (1982), quoting Prosser, we stated that literal truth was not necessary, that substantial truth will suffice. In Pritchard, we found that the gist or the “sting” of the defendant’s remarks was in essence true, although there were some minor conflicts in what was alleged. In contrast, the substance of this news story contained no truth at all. There was simply no robbery attempt and the appellants were in no way involved in any crime.

Appellants contend that they are given a common-law privilege under § 611 (h) of the Restatement of Torts, to report the fact of an arrest. However, we question the applicability of that section. There was no arrest in this case, appellees were only detained during a brief investigation. And whether this action by the police would be considered “official action” within § 611 (h) appears to be a new and unsettled question. See Medico v. Time, 509 F. Supp. 268 (E.D. Pa. 1980). But the privilege granted in § 611 is qualified and will be lost if abused by failure to give an accurate and fair report under § 611 (f). The report need not be precisely correct, as long as it is substantially correct. Appellant cites Williams v. WCAU-TV, 555 F. Supp. 198 (1983), where the broadcaster was granted summary judgment on the grounds that the broadcast was a fair and accurate report of official police action and the reports were substantially correct. There a neighborhood bank had been held up and the police arrested Williams, believing he was one of the three individuals involved. (The police subsequently established, before the newscast, that the plaintiff was not involved.) It was undisputed however that all of the facts in the broadcast were accurately reported. Here there was no robbery attempt, the appellees had not backed up their car to the store to rob (they had merely backed into a space). The clerk was never held as a hostage. Under these circumstances, if there was a privilege, we would have to find that it was lost.

Appellants also urge that the negligence instructions were improper and that in any case, the appellants were not negligent. The court instructed the jury on ordinary negligence and appellants contend that the proper instructions should have been the standard of a reasonably careful broadcaster in the community. We indicated in Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979) that within the latitude accorded in Gertz v. Robert Welch, 418 U.S. 323 (1974) in the case of a private individual, the ordinary negligence standard would measure the publisher’s liability. The court instructed the jury here that the defendant was held to the standard of care a reasonably careful person would exercise under circumstances similar to those shown by the evidence. Nothing suggests that the appellant was prevented from showing what the standard in the industry is and such proof would be evidence the jury could use in making their determination of whether there was a breach of the duty owed.

Nor can we say as a matter of law that appellant was not negligent. We are thoroughly satisfied there was a sufficient basis to submit that issue to the jury. The initial information about a robbery in progress and possible hostage situation was relayed to the television station by way of reports heard on a police scanner. That information was put together with a reporter’s eyewitness account of the police taking the appellees into custody. The reporter could get no information from the officers at the scene nor could the producer of the news get any information verified by police headquarters. The story was written and shown a little over an hour later. We cannot say that a news report with its sources consisting of information from a police scanner, uncorroborated by police on the scene, in conjunction with an eyewitness account by a news reporter who did not know the surrounding circumstances of what she observed, will be found to be due care as a matter of law. We think the issue of negligence was properly submitted to the jury.

Appellant further argues that it is entitled to reversal as a matter of law because the appellees failed to demonstrate that they sustained a legally compensable injury as a proximate result of the news report. The appellant makes two points: first, that under Gertz, the court erred in not instructing the jury that the damages awarded must be for actual injury incurred. However, Gertz does not require such an instruction. The Supreme Court pointed out it would not define “actual injury,” but said it was not limited to out-of-pocket expenses and could include personal humiliation and mental anguish. Gertz does eliminate presumed damages and holds that damages must be proved by competent evidence. In the instructions this jury was told the appellees did have the burden of proving that they sustained damages. Such instructions clearly indicate that damages could not be presumed. Appellant’s second point, that no legally compensable injury was sustained, we cannot uphold. Addressing the question of constitutional limitations on the recovery of general damages, posed by the Gertz decision, Rest. 2d of Torts § 621 (b), states:

The court has not specifically defined actual injury, but it has explained that the term is not confined to out-of-pocket loss. It includes “impairment of reputation and standing in the community,” but this must be supported by competent evidence and cannot be presumed in the absence of proof. Unless the harm is pecuniary in nature, the evidence need not “assign an actual dollar value” to it. “Actual injury” is also held to include “personal humiliation, and mental anguish and suffering,” provided they are proved to have been sustained. The Constitution does not require proof of impairment of reputation before damages for emotional distress can be recovered.

Here, the appellees presented testimony of witnesses, giving their response to the broadcast, as well as the appellees’ own reactions to the broadcast. We think there was competent evidence presented to the jury on this question.

As their last point, appellants argue that the award of compensatory damages must be vacated and a new trial ordered. In Gertz it was held that an award of punitive damages could only be made where it was proven with convincing clarity that the defendant broadcast the story with “actual malice”. We reiterated that holding in Dodrill, that punitive damages are precluded except for the showing of knowledge of falsity or a reckless disregard for the truth. Because we find the record devoid of evidence of a clear and convincing nature that the defendant acted with “actual malice,” or with sufficient recklessness, it was therefore error to submit the issue of punitive damages to the jury. The jury’s refusal to award punitive damages would ordinarily render the error harmless, but appellees were permitted to present evidence of the appellant’s net worth. We have held on a number of occasions that where the issue of punitive damages is erroneously submitted to the jury, together with the defendant’s financial condition, an award of compensatory damages is tainted and cannot stand. Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982); Life and Casualty Insurance Co. v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966). The case is reversed and remanded for further proceedings consistent with this opinion.

Dudley, J., concurs.

Purtle, J., dissents.

Robert H. Dudley, Justice,

concurring. The plaintiffs, who are two private individuals, proved that the defendant publisher did not exercise ordinary care in the redaction of the statement and the editing of the videofilm and, as a result, they were defamed by the false broadcast. The plaintiffs did not prove that the defendant acted with actual malice toward them. Consequently, the defendant was liable for compensatory, or actual, damages suffered by the plaintiffs but was not liable for punitive, or punishment, damages. Even so, on the ground of proof of punitive damages, the defamed plaintiffs were allowed to prove that the broadcaster had a net worth of five and one-half million dollars. Proof of a journalist’s net worth under such a rationale invites a jury to punish a journalist for the publication of unpopular opinion rather than to compensate the defamed person for the injury sustained by the publishing of the falsehood.

The meaningful issue in this case is the antithesis between the law of defamation and the freedoms of speech and press in a self-governing society. After analyzing the competing concerns, it is my conclusion that our substantive law is constitutionally established. Within that substantive law there can be an undesirable result. It may occur when the publisher, at the time of publication of the statement, had no knowledge of what was or was not sufficient care to protect himself from liability in the event of error and then, at trial, the ultimate falsity of the statement is proven. Liability at that time and self-censorship in the future by the publisher are the result. Unwanted self-censorship constitutes a threat of expression of unpopular opinion. I write separately to suggest that, upon being presented the proper case, we adopt an exclusionary rule of evidence which will provide a procedural law safeguard against the foregoing threat.

In our dual system of government we are subject to the law of two governmental regimes. Both provide for the freedoms of speech and press. However, redress for injury by defamation is provided only by state law. It has no federal counterpart.

The Constitution of Arkansas provides for redress for injury to one’s reputation and, prior to 1964, our law of defamation was not held to conflict with the protections of the First Amendment of the federal constitution. Certain classes of falsehoods were regarded as defamatory per se and damage to the victim was presumed from the mere act of publication. Dunagan v. Upham, 214 Ark. 66, 214 S.W.2d 786 (1946). Our common law providing for strict liability, or liability without regard to fault, was modified in 1964 by the federal regime when the Supreme Court of the United States ruled that the state laws of defamation could be exercised only in concert with the federally guaranteed freedoms of speech and press. In that decision, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court addressed the need for a vigorous and uninhibited press balanced by the legitimate interest of redressing wrongful injury by defamation. The conclusion was that a rule of strict liability unduly inhibited the press when applied to defamation suits by public officials. A fault standard of actual malice was required in place of strict liability. In accordance with that decision a journalist in any state is now protected from liability in the event a false statement is made about a public official unless the journalist is guilty of actual malice. The two principal factors considered in New York Times were the need to protect the free exchange of ideas so that political and social change desired by the self-governing public could be brought about and the fear that the law of libel as applied by many states, such as ours, would lead to self-censorship. “Self-censorship” has two meanings. In its descriptive sense, “self-censorship” occurs whenever a journalist refrains from publishing material for legal reasons. See Anderson, Libel and Press Self-Censorship, 53 Tex. L. Rev. 422, 430-31 (1975). Sometimes it is intended to curtail speech injurious to other values, such as obscenity standards. This type of self-censorship may be acceptable. However, if it refers to a needless restraint on the freedom of expression in the name of some competing value, and is more inhibitory than is necessary, it is unconstitutional. See Roth, In Defense of Fault in Defamation Law, 88 Yale Law Journal 1735 (1979).

In the years following the New York Times decision, the term “public official” was extended to “public figure.” Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) and Associated Press v. Walker, 388 U.S. 130 (1967). However, none of these cases established a constitutionally mandated standard of fault in event the false statement is about a private individual.

A short-lived deviation in doctrine occurred six years later when a three-member plurality of the Supreme Court, with five opinions among the eight participating jurists, shifted the focus away from the status of the person defamed and to the nature of the event in which the defamation had occurred. Rosenbloom v. Metromedia, 403 U.S. 29 (1971). The plurality held that the press protection should extend to defamatory falsehoods relating to private persons if the statements concerned matters of general public interest.

In a case handed down three months prior to Rosenbloom, but at a time when a lower federal court had extended the New York Times doctrine to encompass private individuals involved in matters of important public concern, this court refused to apply the Rosenbloom philosophy. Jones v. Commercial Printing Co., 249 Ark. 952, 463 S.W.2d 92 (1971). After Rosenbloom we stated that we “must” hold that matters of public concern were within the press protection of the First Amendment but, independent of the federal dictates, we did not adopt the Rosenbloom philosophy. Gallman v. Carnes, 254 Ark. 987, 497 S.W.2d 47 (1973).

In 1974 the Supreme Court rejected the Rosenbloom doctrine and, once again, emphasized the individual injured rather than the event reported. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). There were two principal reasons for the repudiation. First, the majority felt that unpopular speech is threatened when the content of the statement is the determining factor in liability. The First Amendment is content-neutral and, accordingly, the content-based standard was rejected because it involved the danger of determining “what information is relevant to self-government.” Secondly, the majority felt that it was undesirable to virtually eliminate the ability of the states to protect defamation victims.

In Gertz, the Supreme Court adopted alternative definitions of “public figure.” The first branch of the definition includes those “who occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.” The second encompasses those who “have thrust themselves on the forefront of particular public controversies in order to influence the resolution of the issues resolved.” All others are private individuals. See Wolston v. Readers Digest Association, Inc., 443 U.S. 157 (1979), Hutchinson v. Proxmire, 443 U.S. 111 (1979) and Time, Inc. v. Firestone, 424 U.S. 448 (1976).

The Supreme Court in Gertz held that the First Amendment protection was satisfied, in the case of a private individual, so long as liability is not imposed without fault. Thus, the individual states must set the standard of fault for liability of a journalist charged with defamation of private persons.

Since Gertz, a majority of the states adopting a standard of negligence for cases where a private person is defamed have adopted the “ordinary negligence” standard. Collins & Drushal, The Reaction of the State Courts to Gertz v. Robert Welch, Inc., 28 Case W. Res. L. Rev. 306, 313-314 (1978). The rationales for adopting the ordinary standard fall into four common themes. The first, and most common theme, is that “reputational interests command constitutional protection.” The second is that nothing in the state law requires a stricter standard. The third line of reasoning is that the private person who had been defamed should be allowed recovery as easily as constitutionally permissible. The fourth theme is that press can be demagogic and ought not be given additional power. A minority of states, five, have reached contra holdings.

This court, in the case now before us, has no leeway in setting the standard of fault for Arkansas. In Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979), cert. denied 444 U.S. 1076 (1980), we followed Gertz and acknowledged the repudiation of the Rosenbloom content-based doctrine. In reversing and remanding the case we instructed the trial court that, upon retrial, the standard of fault was as follows:

The publisher of a libelous article shall be liable to the defamed private individual for failure to exercise ordinary care.

Although not expressed, the reasoning for the ruling is that, like the majority of the states, the Constitution of Arkansas commands protection of the reputational interest. It recognizes the “inherent and inalienable rights” of “acquiring, possessing and protecting property and reputation ...” Ark. Const, art. II, § 2. It also mandates that an individual is entitled to a remedy “for all injuries or wrongs he may receive in his person, property or character.” Ark. Const, art. II, § 13. Each of our constitutions has contained a provision for freedom of expression and each has also specifically recognized the interest of the individual in the protection of his reputation. The present constitution provides in art. II, § 6:

The liberty of the press shall forever remain inviolate. The communication of thoughts and opinions is one of the invaluable rights of man; and all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse of such right. [Emphasis added.]

Our four prior constitutions also contained the phrase “being responsible for the abuse of such right.” Ark. Const, art. II, § 7, 1864, 1861, and 1836; Ark. Const, art. I, § 2, 1868. Thus, from the outset of this state, the constitutionally recognized right of the individual to his reputation is not to be limited as a means of protecting freedom of the press.

Unlike our state constitution, the First Amendment of the Constitution of the United States contains no defamation clause but the Supreme Court of the United States has determined that a standard of liability less protective to the press than that of actual malice will not impermissibly abridge the First Amendment freedoms in cases involving private individuals. The federal ruling is determinative of the freedom of expression provisions of both constitutions but not the responsibility provision of our state constitution. See Wilson v. City of Pine Bluff, 278 Ark. 65, 643 S.W.2d 569 (1982). Thus, our state constitution mandates and the federal constitution accommodates the standard of fault being ordinary negligence in the event the person defamed is a private individual.

In the case at bar it is argued that, even if the standard is “ordinary negligence,” it should be measured by what a reasonably careful broadcaster in the community would or would not publish. Such a measure would cause uncertainty and ultimately induce more self-censorship. First, the concept of one legal measure for the negligence of a broadcaster, another for a newspaperman, and yet another for an ordinary individual is contra to the spirit of our constitutional provision. No logical distinction can be made between a spoken statement and a written statement. Of course, in determining what a reasonably careful person would or would not do, proof is admissible as to the generally áccepted standard of professional journalistic conduct. Secondly, the concept of a local standard is not in spirit with the concept of one constitution for all of the state. Most importantly, these concepts would leave a publisher without any definitive means of ensuring freedom from liability by tailoring his conduct to meet a particular requirement. Unwanted self-censoring would be the inevitable result.

Similarly, there is no leeway in determining the standard for the degree of proof of negligence. In Rosenbloom, the plurality held that the proof of actual malice must be made “with convincing clarity,” a standard more protective of the freedoms of speech and press than the usual “preponderance of the evidence.” However, Gertz leaves it to the states to set the standard and, again, the state constitution mandates the answer.

In summary, a publisher has a privilege to print or state a falsehood about a public figure, so long as it is not done with actual malice. That same privilege does not apply if the person defamed is a private individual. There, liability may be imposed by standards set by the individual states so long as the standard is not strict liability. The standard imposed in Arkansas is proof by a preponderance of the evidence of ordinary negligence. Such a standard tends, in practice, to hold a publisher liable for factors outside his control whereby he cannot be certain that, when an article is ultimately proven erroneous, his efforts to insure accuracy will be deemed sufficient. The publisher’s lack of control is due to two factors: (1) nebulous standard of due care. A speaker “steers clear of a barbed wire fence, but he stays even farther away if he is not sure exactly where the fence is.” Wright, Defamation, Privacy, and the Public’s Right To Know: A National Problem and a New Approach, 46 Tex. L. Rev. 630, 634 (1968), and (2) the fact that proof of ultimate falsity is permitted which may cause an inordinate influence on the evaluation of whether due care was exercised. As a result, unwarranted self-censorship will still take place and that, in turn, is a threat to unpopular expression.

A proposal first mentioned in Roth, In Defense of Fault in Defamation Law, 88 Yale L. Jour. 1735, 1747-49 (1978) would help alleviate the threat to unpopular speech. The proposal would limit the admissibility of evidence in a defamation suit to that which was within the reach of the journalist when the defamatory statement was prepared. The limitation would be accomplished by an exclusionary rule of evidence. The proposal is as follows:

The rules governing admissibility in a defamation proceeding should exclude all evidence that a plaintiff refused to disclose to the defendant in response to detailed defamatory charges and that was not otherwise reasonably available at the time of publication. Under this rule, a journalist would be responsible for considering all information reasonably obtainable when he prepared the article. But the rule would shield him from accountability for information that the subject of an article refused to disclose and that the journalist could not reasonably have acquired elsewhere.
Application of this exclusionary rule should depend on two conditions. First, it should be triggered only if the journalist has presented to the subject the contents of an injurious charge and requested relevant information within the subject’s exclusive control. The subject would thus be put on notice that, if he fails to cooperate, his legal remedies for defamation might be impaired. Second, the subject should be required to respond with no greater factual specificity than that with which the charges were presented. The journalist would thus be prevented from exploiting the rule to conduct a fishing expedition. The rule would function meaningfully only if the original accusations were made in considerable detail. Assuming such factual specificity in the journalist’s accusations, neither a statement of “no comment” nor broad, conclusory denials would reserve a subject’s right to introduce underlying facts at a defamation proceeding. [Emphasis added.[

The proposed rule would accommodate the action for defamation with a minimum restriction on free speech. It would provide the publisher with clear choices to follow, each of which would result in freedom from liability. First, if after seeing the content of the statement, the individual acknowledges the truth of the statement there is freedom from liability and no need to do anything more. Second, if the individual simply gives a “no comment,” the evidence of falsity of the statement which is peculiarly within his knowledge would be excluded at a trial, and to avoid liability the publisher would be required to show only that a reasonably careful effort was made to acquire the information elsewhere. Third, if the private individual gave a meaningful denial, the publisher would know that he must make a meticulous and thorough investigation and be absolutely certain of the truth of his statement and the falsity of the denial or else liability would attach. Most importantly, the publisher would know how to tailor his work to meet the specific requirement.

Other beneficial aspects of the proposed rule are that it would provide a method of self-help for the individual and lead to the resolution of many defamatory statements. When presented the proper set of facts, I intend to vote in favor of the proposed exclusionary rule.

John I. Purtle, Justice,

dissenting. It seems to me the majority opinion holds that a person, firm or corporation cannot be held liable for libel unless it is first proved that the publication or broadcast was not done with the specific intent of injuring the victim. I cannot agree with such a holding. All of the cases cited have held that when a matter was published with “actual malice” or “reckless disregard for the truth” punitive damages were allowable. In my opinion the majority has now overruled a long established principle of law and made it almost impossible to recover punitive damages in a libel suit.

The facts, as stated in the majority opinion, show conclusively that the story presented by the appellant was devoid of truth. There was no robbery attempt; there was no hostage; there were no arrests; and the police did not prevent a robbery. Everything in the report was untrue and unverified by the appellant. If this does not amount to a reckless disregard for the truth then it is difficult to imagine a case where this standard would exist.

Cases cited in the opinion were ones where there were more than one defendant; here there is only one defendant. There was no prejudice to any other defendants such as occurred in Life & Casualty Ins. Co. v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966) and Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982). In the present case, the entire matter was properly presented to the jury.

Had the newscast not shown the appellees as the subjects of the telecast the damages might not have existed. However, appellees were clearly identified as two would-be robbers and kidnappers. This story was completely false. Without this telecast, few, if any, of appellees’ friends and acquaintances would have even heard of their brief detention by the police.

The First Amendment right of free speech and free press carries with it some responsibility. There is no freedom to falsely shout “fire” in a crowded theater. Schenck v. U.S., 249 U.S. 47 (1919). Nor is there the freedom to injure innocent people through the broadcast of their faces on a widely viewed newscast when the facts in the story are unconfirmed, false and show an utter disregard for standards within the news reporting profession to an extent that is easily recognizable as reckless. A jury of twelve properly found that this was the case and subsequently awarded compensatory damages to appellees. To abrogate the prior law on this subject is to do a considerable disservice to all residents of this court’s jurisdiction, each of whom is now a potential victim of irresponsible journalism. This does an even greater disservice to the news media itself, for without the reasonable constraints provided for under our previous law, the temptation will be ever present to be less diligent in efforts to confirm the truthfulness of a newsmaking story. Freedom of the press may be abused and I sincerely believe it was in this case. At least the issue of whether the story was broadcast with “actual malice” or “reckless disregard for the truth” was a matter properly presented to the jury. Finding no other errors, I would affirm the trial court.

       An estimated 160,000 people.

        Pritchard v. Times Southwest Broadcasting, 277 Ark. 458, 642 S.W.2d 877 (1982), substantial truth; Brandon v. Gazette Publishing Co., 234 Ark. 332, 352 S.W.2d 92 (1961), privilege.

      Prosser, Handbook of the Law of Torts, p. 798-799 (4th ed. 1971).

      We also note that an apparent majority of jurisdictions have adopted the negligence standard in “private individual” suits. See: Miami Herald Publishing Co. v. Ane, 423 So.2d 376, 385 n. 3 (Fla. Dist. Ct. App. 1983); Living with Gertz: A Practical Look at Constitutional Libel Standards, 67 Virginia Law Review 287, 288 n. 13 (1981); Mathis v. Philadelphia Newspapers, Inc., 455 F. Supp. 406, n. 2 (E.D. Pa. 1978).


author: Per Curiam.

text:
    Cullen Reed HARRIS & Sandra Kay HARRIS v. STATE of Arkansas
    656 S.W.2d 710
    Supreme Court of Arkansas
    Opinion delivered September 12, 1983

      James L. Davis, for appellants.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellants, Cullen Reed Harris and Sandra Kay Harris, by their attorney, James E. Davis, have filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and it was no fault of the appellants. Their attorney admits that the record was tendered late due to a mistake on his part.

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

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


author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice,

text:
    Jack STANLEY v. STATE of Arkansas
    CR 83-60
    657 S.W.2d 205
    Supreme Court of Arkansas
    Opinion delivered September 19, 1983

      John R. Vanwinkle, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Jack Stanley, pled guilty to fourteen crimes of burglary and fourteen crimes of theft. After sentence and commitment to the Department of Correction, appellant filed a motion to withdraw his guilty plea under A.R.Cr.P. Rule 26.1. Appellant alleged that his plea was made involuntarily because the prosecuting attorney threatened to put his wife, a co-defendant, on trial first and appellant feared that she might receive a substantial sentence. On appeal this motion is being considered pursuant to A.R.Cr.P. Rule 37 since it was filed after sentencing. Rawls v. State, 264 Ark. 954, 957, 581 S.W.2d 311, 312 (1979); Shipman v. State, 261 Ark. 559, 563, 550 S.W.2d 424, 426 (1977). The circuit court, basing its decision on the record at the time of the plea, denied appellant’s motion without a hearing. Appellant contends the circuit court erred in denying the motion without a hearing. On appeal we affirm.

The record made at the time of the plea of guilty clearly sustains the trial court’s finding that the plea was voluntary. Under these circumstances no evidentiary hearing was required. Simmons v. State, 265 Ark. 48, 578 S.W.2d 12 (1979); Walker v. State, 251 Ark. 182, 471 S.W.2d 536 (1971). The record reflects that appellant was represented by counsel at the plea taking hearing. Appellant signed plea statements in which he acknowledged that he knew what he was doing; he stated that he was voluntarily pleading guilty of his own free will and that no one had coerced him to do so on account of promises or threats. Defense counsel attested that he had gone over the plea statement with appellant and that the guilty plea was consistent with the facts as related to him and with his own investigation. The circuit judge questioned appellant asking if he understood his plea statement, his rights to a jury trial, to cross-examine witnesses called against him, to call his own witnesses, and his right to an appeal.

The petitioner acknowledged that he understood these rights and stated that there had been no force, threats, promises, or coercion used to get him to enter his plea. He then acknowledged in open court that he had no complaints about his attorney or the prosecuting attorney’s office. In spite of ample opportunity to do so, appellant never mentioned coercion or threat. We have previously held that where the record shows defendant’s attorney explained the charges to him and the court advised the defendant as to his plea to which he replied he wanted to plead guilty, the defendant knowingly, intelligently, and voluntarily entered a plea of guilty. Scott v. State, 267 Ark. 628, 593 S.W.2d 27 (1980).

We find, as did the circuit court, that the record shows conclusively that appellant’s allegation of an involuntary guilty plea is without merit. Hence, no evidentiary hearing was required under Rule 37.3.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. It is my opinion that the trial court should have given petitioner a hearing on his allegations. No doubt the record does not reflect anything except full compliance with the rules of procedure and statutory requirements. Even if someone were to be holding a gun against petitioner’s head while he made his plea the record would not reflect such an event. Everyone who ever pled a client guilty knows the record can be inaccurate to the extent it never reveals a defendant wanted to do anything but plead guilty even if he had serious reservations. If this man received promises that his wife might be turned loose if he cooperated or was threatened that she would be given a stiff sentence if he did not plead guilty then he should be allowed to prove it. I would send it back for a hearing to determine the validity of his allegations, much as we did in Hall v. State, 279 Ark. 265, 650 S.W.2d 587 (1983).


text:
    Harold William WOOD v. STATE of Arkansas
    CR 83-35
    657 S.W.2d 528
    Supreme Court of Arkansas
    Opinion delivered September 19, 1983
    [Rehearing denied October 17, 1983.]

      Terry M. Poynter of Poynter, Huckaba & Gearhart, P.A., for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

On November 6,1981, the appellant, Harold William Wood, shot and killed his son-in-law, Ricky Winnett, age eighteen. Charged with first-degree murder, Wood was found guilty and sentenced to life imprisonment. No reversible error is shown in his eleven arguments for reversal.

Terry Wood Winnett, Wood’s seventeen-year-old daughter, testified that she had lived with her father all her life and had had sexual relations with him once or twice a week from the time she was ten years old until a week before Ricky’s death. After she married Ricky in May, 1981, the couple spent only two nights together, in Wood’s home, before Ricky entered the army and left. During his absence Wood, as Terry’s next friend, filed a suit against Ricky for divorce. Ricky returned on November 3. He and Terry went back together again and instructed Terry’s lawyer to dismiss the divorce case. Wood apparently was angered by the reconciliation, stated to a cousin on November 4 that he was going to kill “the little bastard,” and bought a pistol on the morning of November 6. That night, as Wood, Ricky and Terry were standing together at a snack bar in Gassville, Wood shot and killed Ricky with virtually no provocation, firing four times.

With the proof of the killing being uncontradicted, Wood’s defense was that of mental disease or defect. The proof showed that he suffers from epilepsy, that he sustained at least some brain damage in an accident when he was eighteen, and that while he was in jail awaiting trial he lowered his head and ran into a wall, breaking his neck. The testimony about Wood’s mental state is in such conflict, however, that there is and could be no contention that the verdict is not supported by sufficient evidence.

The plea of insanity gives rise to three arguments that we may consider together. We cannot sustain the contention that the trial court should have granted either a change of venue or a continuance because 45 days before the trial John Hinckley, Jr., had been acquitted, by reason of insanity, of charges arising from the shooting of President Reagan and others. Inasmuch as the reaction to the Hinckley verdict was widespread, the trial judge did not abuse his discretion in holding that a transfer of the case to another county was not warranted, despite two editorials in a Baxter county newspaper. A case relied upon by the appellant, Whitehead v. State, 121 Ark. 390, 181 S.W. 154 (1915), has not been the law since the circuit judge’s authority over changes of venue was broadened in 1936. Robertson v. State, 212 Ark. 301, 206 S.W.2d 748 (1948). Continuances being within the trial judge’s broad discretion, we find no error in his conclusion that a postponement to some unspecified date in the future was not needed. See Edgemon v. State, 275 Ark. 313, 630 S.W.2d 26 (1982); Davis v. State, 251 Ark. 771, 475 S.W.2d 155 (1972).

Defense counsel was denied permission to question each juror on voir dire about his or her reaction to the Hinckley verdict. The trial judge held that such questioning would unduly prolong the selection process, raise collateral issues, create problems in explaining the distinction between the law governing the Hinckley case and the Arkansas law, and in fact prove to be unnecessary because any bias on the part of the jurors would be revealed during permissible questioning. The court’s handling of the situation was right. Throughout the voir dire defense counsel were allowed to display and discuss with the jurors a poster containing a reprint of AMCI4009, stating the Arkansas law on the subject. Counsel were also permitted to call the jurors’ attention to the public criticism of the insanity defense “in recent weeks” and to inquire about their attitude toward that defense. As the trial judge had foreseen, some of the veniremen did mention the Hinckley case, and three jurors were excused for cause because of their reluctance to recognize an insanity defense. Our study of the voir dire proceedings convinces us that the trial court’s limitation on counsel’s voir dire examination did not prevent Wood from obtaining a fair and impartial jury.

During the selection of the jury the veniremen were questioned in groups of two to four. Without objection the prosecutor explained to several of the groups that the state would be required to prove its case beyond a reasonable doubt, with a presumption of innocence, and that the defense would be required to prove mental disease or defect by a preponderance of the evidence, with a presumption that every person is sane. Defense counsel finally objected, arguing that to permit such statements to continue would amount to the court’s commenting on the evidence by telling the jury indirectly that there is a presumption of sanity. This position is untenable. Indeed, if a trial court’s rulings upon objections were construed as comments on the evidence, it would not be possible to conduct a trial without going into chambers again and again. Moreover, the objection came too late.

A fourth argument rests upon the trial judge’s refusal to excuse for cause two jurors having some prior opinions about the case. The situation is a frequent one, in which a juror wavers back and forth as the questioning continues. We perceive no error. A fifth argument, that a former policeman should have been excused for actual bias despite his positive answers to the contrary, does not merit discussion.

Sixth, it is insisted that Terry’s testimony about her seven-year sexual relationship with her father was inadmissible, as being proof of other crimes on the defendant’s part. Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). Such proof, however, is permitted to show motive and intent. Alford; Unit R. Evid. 404 (b). Absent Terry’s testimony, the jury could have attributed the killing solely to Wood’s mental condition rather than to his strong hostility to his daughter’s marriage. The jurors were entitled to consider all relevant facts, a proper cautionary instruction having been given.

In two other arguments it is contended that the defense should have been permitted to prove by a lay witness that in 1975 Wood had shot his dog because he said the dog had lied to him and to prove by a psychologist that one of his patients had engaged in uncontrolled angry conduct of which he later had no memory, the doctor adding that the neck-breaking episode of the defendant was similar. Neither of the particular incidents had any direct relevance or similarity to the case at hand. The trial judge did not exceed the limits of his discretion in considering the probative value of such unrelated incidents to be outweighed by their prejudicial effect upon the jury. Nor did the court err in excluding a one-page report prepared in 1976 by Dr. Gotaas. It was so technical and so indefinite as to be of no value to the jury. Tenth, we have frequently held that the State is not required to supply the defense with funds to employ expert psychiatrists when, as here, no real necessity is shown to exist. We decline to change our rule, as counsel urge us to do.

Finally, it is argued that the accused’s privilege against self-incrimination was violated by the trial court’s requirement that he disclose the names and addresses of his witnesses. This argument is based on the dissenting opinion in Williams v. Florida, 399 U.S. 78 (1970), but we agree with the contrary view taken by the majority in that case.

We find no prejudicial error in the points that are argued or in any other ruling brought to our attention. The appellant appears to have received a fair trial, pursuant to law.

Affirmed.


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    Jerry Dale BLANEY v. STATE of Arkansas
    CR 83-86
    657 S.W.2d 531
    Supreme Court of Arkansas
    Opinion delivered September 19, 1983
    [Rehearing denied October 17, 1983.]

      Williams G. Crowe and James H. Phillips, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Jerry Dale Blaney, appellant, killed his wife, LaDonna Smith Blaney, at their residence on Stuart Road in Pulaski County on August 15, 1981. The jury found him guilty of second degree murder. The Court of Appeals transferred the case to this Court on the jurisdictional ground that one of the points on appeal involves an interpretation of the Constitution of Arkansas. See Rule 29 (l)(a). We affirm the conviction.

Appellant’s first point on appeal is that the trial court improperly commented on the evidence in violation of Ark. Const, art. 7, § 25. During the state’s closing argument the appellant raised an objection and the trial judge then made the ruling. The appellant now contends that the ruling constituted an impermissible comment on the evidence, but no objection was made to the ruling or supposed comment. The trial court was never apprised of the alleged error and was never given the opportunity to correct any error which might have been committed. The alleged error was not preserved for appellate review and does not fall within the exceptions to the requirement that objections be made at the trial level. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Appellant next contends that there is not sufficient evidence to sustain the verdict. Before setting out the evidence we point out that although the jury should be instructed, as it was here, that circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion, AMCI 106, that is not the standard by which we review the evidence. We determine whether the verdict is supported by substantial evidence, which means whether the jury could have reached its conclusion without having to resort to speculation or conjecture. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981) . In determining the sufficiency of the evidence, the evidence and all of its reasonable inferences are viewed most favorably to the appellee. Hamby v. Haskins, 275 Ark. 385, 630 S.W.2d 37 (1982).

The testimony revealed that appellant and the victim had been married a little over three years at the time of the murder. Cynthia Spillers, the victim’s best friend, testified that appellant and the victim were constantly fighting and quarreling. Appellant admitted that at one time the victim filed a divorce action against him.

Cynthia Spillers testified that on Thanksgiving Day, 1979, the appellant and some of the members of the victim’s family became embroiled in an argument and that appellant got a gun, grabbed the victim and told the family that he would shoot her if they “did not shut up,’’ and went outside and twice fired the pistol.

Spillers also testified that two weeks before the murder the appellant screamed at the victim, “if she didn’t shut up, he was going to fill her full of red lead.’’

Appellant, in his statement to the police, plainly admits that he pulled the pistol.

I work the midnight to 8:00 a.m. shift at Skaggs. I got off work this morning and drank a couple of beers with guys I work with. I got home about 9:30 a.m. and went to bed. My wife was gone. I think she was looking for me. I had been asleep when she came in. LaDonna was upset and hollering at me for not coming home on time. I had told her to leave me alone. She grabbed me and we got to scuffling. I keep a .357 on the table beside my bed for my wife. I grabbed the gun and we was fighting over it.
We were on the bed when we were fighting over the gun. I don’t remember pulling the trigger, but after the shot, LaDonna was bleeding. I ran next door to get my mother. And I called the operator to get an ambulance and the police. I had pulled the gun on her before, but I always put it down until this time.

The State medical examiner testified that a trace metal test revealed that the victim did not handle the gun and an additional test for gunpowder on her hands indicated she was not holding the gun when it was fired. He further testified that, based on the stippling and the gunpowder residue on her arm and face, it was his opinion that the victim was in a defensive position shielding her face from the pistol which was eighteen to twenty-four inches from her face, when she was killed. Obviously, the verdict is supported by substantial evidence.

Appellant’s final point involves the trial court’s refusal to give two proposed instructions. The first is not included in our Model Criminal Jury Instructions. Non-model instructions are to be given only when the trial j udge finds that an AMCI instruction does not accurately state the law or AMCI does not contain an instruction on a needed subject. Lampkin v. State, 271 Ark. 147, 607 S.W.2d 397 (1980).

Appellant contends that his proposed instruction, which is the subject of the accident, is a needed instruction on a subject matter not covered by AMCI. We find no merit in the contention. The subject matter of accident is intentionally omitted from AMCI. Like alibi, accident was an instruction often given by trial courts in the past, but it is neither a defense nor an affirmative defense under the Arkansas Criminal Code. Rather, it is a position which a defendant may assert to create a reasonable doubt of guilt. See AMCI 4008. The pre-code statute on misfortune or accident, Ark. Stat. Ann. § 41-116 (Repl. 1964) cited in Brewer v. State, 251 Ark. 7, 470 S.W.2d 590 (1971) was repealed by Act 928 of 1975 which became effective simultaneously with the criminal code. Under the code every offense is defined to require that a person act either purposely, knowingly, recklessly, or negligently with respect to conduct, attendant circumstances or the result of conduct. See Ark. Stat. Ann. § 41-203 (Repl. 1977) (paragraphs four and five of Commentary). The instructions given required the state to prove beyond a reasonable doubt the appellant’s culpable mental state. The subject matter was adequately covered.

Appellant asserts that the court erred in refusing to give his requested instruction, AMCI 4104, on justification to use physical force. We find no error. First, the appellant contended throughout the trial that the victim was killed by an accidental discharge of the pistol. Obviously, a claim of accidental discharge of a weapon does not entitle one to an instruction on a deliberate act of self-defense. Secondly, a part of appellant’s testimony can be construed to mean that he intentionally picked up the pistol only for the purpose of striking the decedent. See Jordon v. State, 238 Ark. 398, 382 S.W.2d 185 (1964) for asimilar fact situation. However, at no time in the case at bar did appellant offer any testimony that he was in fear of being killed or injured. See AMCI 4104. In fact, he testified that he was not afraid of the decedent, that he weighed between 180 and 192 pounds, was strong and was not afraid that she could beat him up without a gun. There is no error in the refusal to give an instruction where there is no evidence to support the giving of that instruction. Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981).

Affirmed.


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    AMERICAN TRUCKING ASSOCIATIONS, INC.; TRANSCON LINES, INC.; DIAMOND TRANSPORTATION SYSTEM, INC.; ROLLINS LEASING CORPORATION; COMMERCIAL CARRIERS, INC., on Behalf of Themselves and All Other Similarly Situated Taxpayers; ARKANSAS BUS AND TRUCK ASSOCIATION, INC.; and JONES TRUCK LINES, INC. on Behalf of Themselves and All Other Similarly Situated Taxpayers v. Henry C. GRAY, Director, ARKANSAS HIGHWAY AND TRANSPORTATION DEPARTMENT; David SOLOMON; Ron HERROD; Patsy Lee THOMASSON; Raymond PRITCHETT, Jr.; Bobby HOPPER; Members of the ARKANSAS STATE HIGHWAY COMMISSION; Roy L. JOHNSON, Chief of the ARKANSAS HIGHWAY POLICE DIVISION of the ARKANSAS HIGHWAY & TRANSPORTATION DEPARTMENT; Charles D. RAGLAND, Commissioner of Revenues, Revenue Division, ARKANSAS DEPARTMENT OF FINANCE & ADMINISTRATION; Jimmie Lou FISHER, Treasurer of the State of Arkansas; Mahlon MARTIN, Director, ARKANSAS DEPARTMENT OF FINANCE & ADMINISTRATION
    83-209
    657 S.W.2d 207
    Supreme Court of Arkansas
    Opinion delivered September 19, 1983

      Mitchell, Williams, Selig, Jackson ér Tucker, for appellants.

      Chris O. Parker, Ted Goodloe, and Thomas B. Keys, for appellee Arkansas State Highway Commission.

      Joe Morphew, for appellee Revenue Department.

      Steve Clark, Atty. Gen., by: Frederick K. Campbell, Deputy Atty. Gen., for appellee Jimmie Lou Fisher.
   John I. Purtle, Justice.

This appeal is from an interlocutory order denying an injunction to prevent monies being collected for the sale of motor fuels from being deposited into the state treasury and from being distributed to various state agencies, cities and towns. Appellants filed a taxpayers’ suit on May 27, 1985, attacking the constitutionality of Act 685 of 1983 claiming it to be an illegal exaction pursuant to Art. 16, sec. 13, of the Arkansas Constitution. The act levied a motor fuel tax upon certain fuels used by the trucking industry. A preliminary injunction was issued on the date suit was filed but was dissolved on July 29, 1983, after several days of testimony. Appellees presented evidence at the hearing on the temporary injunction that they would suffer damages up to $53,000,000 if the injunction were continued. The court set bond in the amount of $53,000,000 in order to stay the dissolution order. The notice of appeal and petition for certiorari was filed with this court on August 1,1983. Subsequently, we granted appellants’ motion to expedite the appeal. The decree of the chancellor is affirmed and the petition for certiorari is denied pending trial of the case on its merits.

At the hearing on the temporary injunction the chancellor found appellants’ chances of prevailing on the merits of the case were not good. An order was issued dissolving the temporary injunction. The interlocutory order is an appeal-able order pursuant to Arkansas Rules of Appellate Procedure, Rule 2 (a) (6).

Appellants claim that certain findings made by the chancellor were not valid in light of the evidence presented. Disputed findings by a chancellor are upheld on appeal, unless such findings are clearly erroneous. Gray v. Ragland, 277 Ark. 232, 640 S.W.2d 788 (1982). Many citations were presented to the chancellor and he was obviously persuaded that the highway use equalization tax imposed by Act 685 of 1983 would likely stand against attack. In view of the presumption of validity of acts of the Arkansas General Assembly we cannot say the findings of the court below were clearly erroneous. Arkansas Motor Vehicle Commission v. Cliff Peck Chevrolet, Inc., 277 Ark. 185, 640 S.W.2d 453 (1982).

The granting or denying of a temporary restraining order is a matter falling within the sound discretion of the trial court and its decision will not be reversed on appeal unless it is clearly erroneous. Kreutzer v. Clark, 271 Ark. 243, 607 S.W.2d 670 (1980).

Appellants correctly contend that the possibility of irreparable harm must be shown before a restraining order or injunction will issue. The chancellor in this case did not find that irreparable harm would result to appellants. Therefore, an essential ingredient for continuing the temporary injunction is missing. ARCP, Rule 65. Kreutzer v. Clark, supra. We do not consider the merits of the case on this appeal. We are convinced that the record supports the chancellor’s ruling. The case is scheduled to be heard on its merits before the end of the current month, and should a proper appeal be lodged after the final decision, we will at that time deal with the merits of the case as presented to us. On the present appeal, the decision of the chancellor is affirmed.

Hays, J., not participating.