source: Caselaw Access Project

author: Robert L. Brown, Justice. Tom Glaze, Justice, David Newbern, Justice,

license: Public Domain

text:
    Joshua M. HEAGERTY v. STATE of Arkansas
    98-848
    983 S.W.2d 908
    Supreme Court of Arkansas
    Opinion delivered December 21, 1998
    [Petition for rehearing denied January 28, 1999.]

      Hubert W. Alexander Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Mac Golden, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal concerns the order of the trial court denying appellant Joshua M. Heagerty’s motion to transfer his six drug cases to juvenile court. The matter was first appealed to the Court of Appeals, which reversed the trial court. See Heagerty v. State, 62 Ark. App. 283, 971 S.W.2d 793 (1998). The State petitioned this court to review the matter, and we agreed. We reverse the Court of Appeals decision and affirm the trial court’s denial of the transfer.

On May 7, 1997, Joshua Heagerty was charged in circuit court with six counts of delivery of a controlled substance in violation of Ark. Code Ann. § 5-64-401 (Repl. 1997). These charged offenses occurred between August 24, 1996, and September 24, 1996. On June 3, 1997, Heagerty filed a Motion to Transfer the case from circuit court to juvenile court. He based his motion on the fact that he was presently seventeen years old (his date of birth is July 14, 1979), that he had no criminal record, and that there were sufficient rehabilitation programs available to him in juvenile court through the Division of Youth Services.

On July 8, 1997, a hearing was held on Heagerty’s motion. It was six days before his eighteenth birthday. At the hearing, Heagerty’s mother, Sheila Heagerty, testified that her son had no prior criminal record, and that it was only after she and her ex-husband got a divorce, that he began having trouble. He stopped participating in school activities, including sports, and his grades went down. Mrs. Heagerty testified that after a drug-possession charge in December 1996 or January 1997 in Pulaski County juvenile court which later was dismissed, she sent her son to Recovery Way, a private drug rehabilitation center in Oklahoma. After he returned from Recovery Way, he got A’s and B’s and graduated from high school. He began attending recovery meetings and regularly attended church. She further testified that Heagerty began working full time and enrolled for the fall semester at Arkansas State University in Jonesboro.

An undercover narcotics investigator for the Lonoke County Sheriffs Department, Jason Young, also testified at the hearing. Officer Young stated that he made the first drug buy from Heagerty on August 24, 1996, one month after Heagerty turned seventeen. Some, but not all, of the drug buys occurred on a Cabot public school parking lot. He added that the charges were not filed until nine months later in order to protect his identity as an undercover officer in the investigation, and not for purposes of taking away Heagerty’s rehabilitation potential in juvenile court.

After the hearing, the trial court denied Heagerty’s motion to transfer, finding that the six narcotics buys showed a “repetitive pattern.” His precise ruling fiom the bench follows:

All right, the court has heard the testimony and certainly this court always finds it a tragedy when young people get themselves in a position where they have to hire lawyers and their parents and other people have to come and plead for them and that sort of thing. I don’t know whether the charges are true or not. I don’t know anything about the details. I wasn’t sure about the testimony whether or not it was six charges arising out of four sales or four different times or whether it was actually six different times but it doesn’t matter. This court finds that the six buys shows a repetitive pattern. The motion will be denied.

The question for this court to resolve is whether the trial court clearly erred in denying Heagerty’s motion to transfer. When this court grants review of a decision made by the Court of Appeals, we review the case as if it had been originally filed in our court. Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998). We will not reverse a trial court’s determination of whether to transfer a case to juvenile court unless that decision is clearly erroneous. Jones v. State, 332 Ark. 617, 967 S.W.2d 559 (1998).

Under Arkansas law, the trial court must consider certain factors in making its decision of whether to transfer a case to juvenile court. See Ark. Code Ann. § 9-27-318(e) (Repl. 1998). Section 9-27-318(e) reads:

(e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

This court has previously held that the party seeking the transfer has the burden of proving that a transfer is warranted under § 9-27-318(e). See, e.g., McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997). If the movant meets that burden, a transfer will be made unless there is clear and convincing countervailing evidence to support a finding that the movant should remain in circuit court. Ark. Code Ann. § 9-27-318(f) (Repl. 1998); Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996). McClure v. State, supra. Clear and convincing evidence is “that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established.” McClure, 328 Ark. at 39, 942 S.W.2d at 245. A circuit court does not have to give equal weight to each of the three statutory factors; nor does evidence have to be presented regarding each factor. Wright v. State, 331 Ark. 173, 959 S.W.2d 50 (1998).

Heagerty claims that he met the burden of proof necessary to transfer the matter to juvenile court. He claims that the testimony of his mother regarding his behavior before and after the alleged drug offenses occurred proves that he is an excellent candidate for rehabilitation in the juvenile system. He takes issue with the trial court’s finding that the six charged offenses are part of a repetitive pattern and argues that the alleged offenses occurred between August 24, 1996, and September 24, 1996, and could not be a repetitive pattern of adjudicated offenses as § 9-27-318 (e)(2) requires. Heagerty further emphasizes that the prosecutor did not produce any evidence other than the seriousness of the offenses to warrant keeping the case in circuit court, which, he maintains, runs counter to our decision in Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992). Finally, he contends that Officer Jason Young waited almost nine months to arrest him so that he would be closer to age eighteen and, thus, not as susceptible to rehabilitation within the Division of Youth Services.

We conclude, nonetheless, that the trial court ruled correctly in this matter. The clear and convincing evidence found by the trial court obviously related to the repetition of the charged offenses. Heagerty is correct that the second criterion under the juvenile-transfer statute refers to “a repetitive pattern of adjudicated offenses,” and not merely to charged offenses. Ark. Code Ann. § 9-27-318 (e)(2) (Repl. 1998). This court, however, has looked to the multiplicity of serious charges as a legitimate factor to consider in connection with juvenile transfers. See Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). In addition, we are not constrained by the trial court’s rationale but may go to the record for additional reasons to affirm. Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). And regarding the specificity of the trial court’s findings, this court has observed in the past that the juvenile-transfer statute does not require the trial judge to make findings of fact to support its decision, even though it would be preferable for the judge to do so. See Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996); Blevins v. State, supra; Evans v. State, 287 Ark. 136, 697 S.W.2d 879 (1985).

We do not believe that the case of Blevins v. State, supra, is controlling in this matter. In Blevins, we deemed a trial court’s decision to try a sixteen-year-old as an adult for possession of fifteen rocks of crack cocaine to be clearly erroneous. The facts of the instant case, though, are closer to those in Hogan v. State, supra. In Hogan, the defendant was charged as an adult with two delivery-of-marijuana offenses and two delivery-of-cocaine offenses. He was arrested at school, and following his arrest, he was also charged with possession of crack cocaine with intent to deliver. He filed a motion to transfer his case to juvenile court on the basis that even though he was now eighteen, he had been seventeen at the time of the alleged offenses. At the hearing, he introduced evidence of no prior record, a 3.0 grade point, school leadership and sports participation, plans to attend college, and the absence of violence employed in the alleged crimes. The trial court denied the motion, distinguishing the facts of the case from those in Blevins. We affirmed and said:

The fact that no commitment under juvenile jurisdiction could result from a transfer due to Hogan’s age and the fact there are multiple charges of a serious nature, one of which involves possession of a significant amount of crack cocaine on school grounds, compel us to conclude that the trial court’s decision was not clearly erroneous.

Hogan, 311 Ark. at 265, 843 S.W.2d at 831 (citation omitted).

Here, as in Hogan, Heagerty was seventeen at the time of the charged offenses. Though Hogan was eighteen at the time of his juvenile-transfer hearing, Heagerty was six days short of eighteen when his hearing was held. Heagerty is nineteen at this writing. He argues that this fact does not mean that his chance for rehabilitation within the Division of Youth Services is non-existent. However, there is no question but that his age adversely reflects upon his prospects for rehabilitation. See Ark. Code Ann.. § 9-27-318 (e)(3) (Repl. 1998). Ark. Code. Ann. § 9-28-208 (d) reads:

Commitment shall not exceed the eighteenth birthday of a youth, unless the Department of Human Services’ State Institutional System Board determines that an adequate facility or facilities are available for youths eighteen (18) years of age or older.

This court has said that “although § 9-28-208 (d) extends the commitment time beyond eighteen in certain circumstances, it presupposes that the youth has already been committed to the State Division of Youth Services prior to reaching eighteen.” Rice v. State, 330 Ark. 257, 260, 954 S.W.2d 216, 218 (1997). We certainly disagree with Heagerty that his voluntary treatment at Recovery Way in Oklahoma equates to commitment to a youth services facility.

There are, of course, alternatives within the juvenile program to commitment to a youth services facility for those between the age of eighteen and twenty-one, including probation, fines, voluntary community service, suspension of driving privileges, and residential detention with electronic monitoring. See Ark. Code Ann. § 9-27-330 (Repl. 1998). But commitment itself is lacking as a rehabilitative prospect for Heagerty. And though Heagerty makes the claim that the almost nine-month delay in arresting him was a ruse to place him outside the jurisdiction of the juvenile court, he offers no proof to sustain his suspicion. We view Officer Young’s explanation that he had to remain undercover during that period of time owing to other ongoing investigations as entirely reasonable.

Accordingly, as in Hogan we hold that because of Heagerty’s multiple charges, the fact that some drug deliveries occurred on school grounds, and the diminished rehabilitation prospects in Youth Services due to his age, the trial court was not clearly erroneous in denying transfer of this matter to juvenile court. We affirm the decision of the trial court and reverse the decision of the Court of Appeals in Heagerty v. State, 62 Ark. App. 283, 971 S.W.2d 793 (1998).

Affirmed.

Glaze and Imber, JJ., concur.

Newbern and Thornton, JJ., dissent.

Tom Glaze, Justice,

concurring. I concur. First, I would point out that this court reviews the trial court’s decision, not the court of appeals. Here, the trial court denied the appellant’s motion to transfer, and the abstract reflects that the trial court denied appellant’s motion because “six buys show a repetitive pattern.” That issue has been considered and decided in this court’s majority opinion. However, I would point out that the appellant never argued below or on appeal that the court erred in not considering probation options provided under Ark. Code Ann. §§ 9-27-330 and 9-27-339 (Repl. 1998). These statutory provisions apparently were introduced into argument on appeal in the court of appeals’ majority opinion. In short, this court cannot reverse a trial court’s decision based on an argument not presented below.

Even if §§ 9-27-330 and -339 could be considered on appeal, the interpretation given these provisions by the court of appeals’ majority opinion and the dissenting opinion in this court is erroneous. Section 9-27-330 provides additional alternatives for juveniles placed on probation. Some of these options are electronic monitoring, volunteer community service, and suspension of driving privileges. Section 9-27-339 comes into play when the juvenile violates those conditions. Under § 9-27-339, if the court should find the juvenile violated the terms of his or her probation,' the court may (1) extend probation, (2) impose additional conditions of probation, (3) make any disposition that could have been made at the time probation was imposed, or (4) commit the juvenile to a juvenile detention facility for an indeterminate period not to exceed ninety days.

As I read these two statutes together, the juvenile contemplated is one who is under eighteen years of age, because a person older than eighteen could not be committed to a juvenile detention facility upon his or her probation revocation. Undoubtedly, the General Assembly intended to offer juvenile courts additional options in delinquency cases, but it did not provide that those options should also be provided to adults. While I think the result the court of appeals and the dissenting opinion want to reach could be beneficial, such remedies for young adults like the appellant must come from the General Assembly.

Imber, J., joins this concurrence.

David Newbern, Justice,

dissenting. In order to retain jurisdiction over charges brought against a juvenile defendant, a circuit court must find “by clear and convincing evidence,” based upon the three factors set forth in Ark. Code Ann. § 9-27-318(e) (Repl. 1998), that the “juvenile should be tried as an adult.” Ark. Code Ann. § 9-27-318(f) (Repl. 1998). Such a finding must be reversed if it is clearly erroneous. Sanford v. State, 331 Ark. 334, 348, 962 S.W.2d 335, 342 (1998). A trial court’s finding “is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Noland v. Noland, 330 Ark. 660, 672, 956 S.W.2d 173, 179 (1997).

Application of the three factors set forth in Ark. Code Ann. § 9-27-318(e) leaves me with the “definite and firm conviction” that the charges brought against appellant Joshua M. Heagerty should be transferred to the Juvenile Court. The finding of the Lonoke County Circuit Court that “clear and convincing evidence” warranted its retention of jurisdiction was “clearly erroneous.”

Í. Serious and violent offense

Section 9-27-318(e)(l) directs the Circuit Court to consider “[t]he seriousness of the offense” with which the juvenile is charged and “whether violence was employed by the juvenile in the commission of the offense.” Mr. Heagerty is alleged to have committed multiple drug offenses on school property.

No doubt the alleged offenses are “serious,” but there is no allegation of the use of violence. The mere fact “that a crime is serious without the use of violence is not a factor sufficient in and of itself for a circuit court to retain jurisdiction.” McClure v. State, 328 Ark. 35, 40, 942 S.W.2d 243, 246 (1997). See also Green v. State, 323 Ark. 635, 641, 916 S.W.2d 756, 759 (1996) (“Seriousness alone is not a sufficient basis to refuse the transfer.”); Cole v. State, 323 Ark. 136, 141-42, 913 S.W.2d 779, 782 (1996); Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992).

Mr. Heagerty is charged with having committed purely nonviolent offenses, and thus the alleged offenses, by themselves, did not warrant the Circuit Court’s retention of jurisdiction in this case. Consideration of § 9-27-318(e)(l) contributes nothing to the decision to retain jurisdiction in the Circuit Court.

2. Prior adjudicated offenses

Next, § 9-27-318 (e)(2) directs the Circuit Court to consider “[w]hether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts.”

The statute plainly asks whether the juvenile is “beyond rehabilitation under existing rehabilitation programs,” and that determination rests solely upon (1) whether the offense or offenses charged in the present action are “part of a repetitive pattern” of previously adjudicated offenses, and (2) the responses of the juvenile to any past efforts to treat and rehabilitate him or her.

Mr. Heagerty has no record of previously adjudicated offenses, and his only effort to receive treatment and rehabilitation at Recovery Way in Oklahoma proved successful. These facts are undisputed. The offenses with which Mr. Heagerty is charged in the present action, then, are not part of any “repetitive pattern” of previously adjudicated offenses, and we have, as the Court of Appeals observed, “no evidence of a faded attempt at rehabilitation.” Heagerty v. State, 62 Ark. App. 283, 288, 971 S.W.2d 793, 795 (1998). There is no showing that Mr. Heagerty is “beyond rehabilitation,” and consideration of § 9-27-318(e)(2) also clearly suggests transfer.

The majority suggests that a circuit court, in evaluating a juvenile’s transfer motion, may consider the fact that the information alleges a “multiplicity of serious charges” against the juvenile even though, at the time the transfer motion is considered, the charges are obviously not “adjudicated offenses” under § 9-27-318(e)(2). The majority cites Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992) in support of its suggestion.

A sufficient response is that Ark. Code Ann. § 9-27-318 does not permit a circuit court to retain jurisdiction on the ground that the information alleges multiple charges against the juvenile. The majority itself acknowledges that § 9-27-318(e)(2) refers only to “adjudicated offenses” and “not merely . . . charged offenses,” and it does not question the holding of the Court of Appeals that the “plain language” of § 9-27-318(e)(2) “does not allow mere non-adjudicated charges, no matter how numerous, in and of themselves to be proof of recidivism.” Heagerty v. State, 62 Ark. App. at 288, 971 S.W.2d at 795. As that Court correctly observed, § 9-27-318 (e)(2) “necessarily presupposes prior adjudications in the juvenile justice system.” Id. Thus, under the controlling statute, a “multiplicity of serious charges” alleged against the juvenile in the information provides no basis for a circuit court’s retention of jurisdiction.

Any contrary rule suggested by Hogan v. State, supra, must yield to the plain language of § 9-27-318. In the Hogan case, we affirmed the denial of a transfer motion in part because the information alleged “multiple charges of a serious nature.” We did not, however, explain how the “multiplicity of charges” in the information satisfied any of the three statutory factors in § 9-27-318(e). Since our decision in Hogan, moreover, we have not repeated the suggestion that the mere filing of multiple charges against a juvenile has any bearing on the factors that a circuit court must consider under the statute, and we have never sustained a circuit court’s finding of a “repetitive pattern” under 9-27-318 (e)(2) based upon unadjudicated offenses or unproven charges in an information. Thus, the statements in the Hogan case that are referred to in the majority opinion are contrary to the governing statute and are therefore erroneous. They should not be followed here.

3. Prospects for rehabilitation

Finally, § 9-27-318 (e)(3) directs the Circuit Court to consider the juvenile defendant’s “prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.”

This third factor virtually requires transfer of Mr. Heagerty’s case to Juvenile Court. The evidence overwhelmingly demonstrates that Mr. Heagerty’s “prospects for rehabilitation” are strong. As the Court of Appeals observed, Mr. Heagerty, on account of the treatment he received at Recovery Way, “was on the road to rehabilitation even before the charges had been filed against him.” Heagerty v. State, 62 Ark. App. at 288, 971 S.W.2d at 795.

The majority concludes, however, that the fact that Mr. Heagerty is currendy 19 years old and thus cannot be “committed” to a youth-services facility “adversely reflects upon,” and “diminish[es],” “his prospects for rehabilitation.” I strongly disagree with the majority on this point.

It is true that a juvenile over the age of eighteen cannot be “committed” to the Division of Youth Services. See Ark. Code Ann. §§ 9-27-331(a)(l) (Repl. 1998); 9-28-208(d) (Repl. 1998). It is also true that, in our past decisions, we have said that a juvenile has little chance for rehabilitation in the juvenile justice system if he or she cannot be “committed” to a Youth Services facility. In Rice v. State, 330 Ark. 257, 260, 954 S.W.2d 216, 218 (1997), we “dispensed” with the juvenile’s rehabilitation arguments and focused solely on his age. We said that, because the juvenile was eighteen, “his potential for rehabilitation within the juvenile system is nil.” We concluded that the juvenile was “beyond the age when he can be rehabilitated in the juvenile justice system.” See also Smith v. State, 328 Ark. 736, 740, 946 S.W.2d 667, 670 (1997); Jensen v. State, 328 Ark. 349, 353, 944 S.W.2d 820, 822 (1997); Brooks v. State, 326 Ark. 201, 204, 929 S.W.2d 160, 162 (1996)(“The chance for rehabilitation within the Division of Youth Services is nonexistent when a commitment cannot be had for a young person older than 18.”).

The current Juvenile Code was enacted in 1989. Some two years later, in Bright v. State, 307 Ark. 250, 251, 819 S.W.2d 7, 8 (1991), we observed for the first time that a juvenile offender’s ineligibility to be “committed” to a facility was an important factor in assessing his or her “prospects for rehabilitation.” But see Evans v. State, 287 Ark. 136, 142-43, 697 S.W.2d 879, 883 (1985) (making similar observation with respect to prior Juvenile Code). Since the Bright case, we have not departed from that interpretation of the Juvenile Code of 1989.

In the present case, however, we are asked for the first time to reconsider our holdings in the above cases in light of certain amendments to the Juvenile Code passed by the General Assembly in 1995. Those amendments appear at Ark. Code Ann. § 9-27-330 (Repl. 1998), and their effect, as the Court of Appeals observed, was to expand “the dispositions available to the juvenile court upon a finding of delinquency.” Heagerty v. State, 62 Ark. App. at 290, 971 S.W.2d at 796. Even if a juvenile is over the age of eighteen and is therefore ineligible to be “committed” to a youth-services center, other rehabilitation programs are now available to him or her pursuant to § 9-27-330. The “alternate dispositions,” aside from commitment to a youth-services center, include, among others, the following: probation, fines, restitution, community service, and “residential detention with electronic monitoring.”

In light of the “alternate dispositions” now available under § 9-27-330, it is no longer true that a juvenile’s prospects for rehabilitation are “nil” simply because he or she cannot, on account of age, be “committed” to a Youth Services facility. The General Assembly has made other rehabilitation programs available to juveniles regardless of their age. Section 9-27-330 clearly obligates the courts to assess a juvenile’s prospects for rehabilitation in light of those alternate programs, and thus we can no longer “dispense” with a juvenile’s arguments concerning rehabilitation by focusing solely on his or her age. The General Assembly, acting within its authority, has simply “changed the law” on this issue, and our duty is to follow it.

The majority, however, stubbornly clings to case law that originated prior to the current § 9-27-330. While acknowledging the various rehabilitation programs now available to Mr. Heagerty, the majority obsesses over the fact that commitment is not a “rehabilitative prospect” for Mr. Heagerty. Under the current § 9-27-330, however, that fact is no longer dispositive of the question posed by § 9-27-318 (e)(3) — i.e., whether Mr. Heagerty has any prospect for rehabilitation in the juvenile justice system. He clearly does in light of the recently amended statute.

The majority’s decision in this case will result in a trial in a circuit court where a young college student who is at least well on the road to rehabilitation will face the possibility of an extended prison sentence because he cannot be “committed” by a juvenile court. Instead, he will face the prospect of being “committed” to an institution where his prospects for sustaining his rehabilitation will indeed be “nil.”

I respectfully dissent.

Thornton, J., joins in this opinion.

       The issue of whether the juvenile or prosecutor has the burden of proof in juvenile-transfer cases has been called into question in concurring and dissenting opinions by justices of this court. See Thompson v. State, 330 Ark. 746, 957 S.W.2d 1 (1997) (Newbern, J., concurring) (Brown, J., concurring in part; dissenting in part).


author:
Ray Thornton, Justice.
      Tom Glaze, Justice, David Newbern, Justce,

text:
    Winston BRYANT, Attorney General v. Richard WEISS, Director, Arkansas Department of Finance and Administration, and Mike Huckabee, Governor
    98-564
    983 S.W.2d 902
    Supreme Court of Arkansas
    Opinion delivered December 21, 1998

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Deputy Att’y Gen. and David R. Raupp, Sr. Asst. Att’y Gen, for appellant.

      Everett & Mars, by: Thomas A. Mars and John J. Watkins, for appeEee.
   Ray Thornton, Justice.

Attorney General Winston Bryant brings this appeal of the Pulaski County Circuit Court’s finding that the Attorney General, acting in his official capacity, lacks standing to bring suit to appeal the denial of his request for access to documents pursuant to the Arkansas Freedom of Information Act. We do not agree that Attorney General Winston Bryant lacks standing to bring this appeal, and, accordingly, we reverse and remand.

In October of 1997, Governor Mike Fluckabee established a “hotline” to receive aEegations of wrongdoing in connection with state contracts. The hotline was originaEy housed in and staffed by the Department of Finance and Administration, but was ultimately moved to the Governor’s offices. FoEowing the Governor’s denial of media requests to inspect hotline-generated documents pursuant to the Freedom of Information Act, Attorney General Winston Bryant presented a Freedom of Information Act request to the Governor and Richard Weiss, Director of the Department of Finance and Administration, seeking to examine and photocopy all documents generated by the hotline. The Governor denied the request, citing the “working papers” exemption to the Freedom of Information Act.

On December 11, 1997, the Attorney General filed a Complaint for Declaratory Relief and Relief Pursuant to the Arkansas Freedom of Information Act, seeking, among other things, an in camera inspection of the records to determine whether any were exempt, and release of documents not subject to exemption. On December 12, 1997, the Governor filed a Motion to Dismiss the Appeal, or, in the alternative, to Disqualify the Attorney General, arguing that the Attorney General lacked standing to bring the action.

On February 5, 1998, without reaching such issues as whether the records are exempt from disclosure under the Freedom of Information Act, the circuit court granted the motion to dismiss on the basis that the Attorney General did not have standing to bring an action under the Freedom of Information Act. Specifically, the trial court found that the Attorney General constitutes an “office” or “entity,” as opposed to an individual, and that as a consequence of that status, is not a “citizen” for purposes of acquiring standing under the Freedom of Information Act. The Attorney General appealed, seeking review of the circuit court’s interpretation of the Freedom of Information Act to deny the Attorney General standing.

On review of an issue of statutory interpretation, we are not bound by the decision of the circuit court. However, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. See Hazen v. City of Booneville, 260 Ark. 871, 545 S.W. 2d 614 (1977). Here, appellant challenges the trial court’s interpretation of the Freedom of Information Act statute, and particularly the word “citizen” as depriving the Attorney General of standing to exercise the provisions of the Freedom of Information Act.

The first effective statutory right of access to governmental information came with the enactment of the federal Freedom of Information Act in 1966. See Justin D. Franklin and Robert E. Bouchard, The Freedom of Information Act and Privacy Acts, § 1.02, at 1-17 (2d ed. 1998). Arkansas enacted similar protection for public access to information in 1967 with its own Freedom of Information Act, codified now at Ark. Code Ann. §§ 25-19-101 — 25-19-107 (Repl. 1996, Supp. 1997). Since that time, this Court has broadly construed the Act in favor of disclosure. See McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). Unlike many cases involving statutory interpretation, the Freedom of Information Act specifically states the legislative intent:

It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them, or their representatives to learn and to report fully the activities of their public officials.

Ark. Code Ann. § 25-19-102 (Repl. 1996).

Our decisions have clearly stated that the intent of the Freedom of Information Act was to establish the right of the public to be fully apprised of the conduct of public business. City of Fayetteville v. Edmark, 304 Ark. 179, 184-85, 801 S.W.2d 275, 278 (1990). As a rule, statutes enacted for the public benefit are to be interpreted most favorably to the public. The Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved. Id., citing Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968).

It is with these guidelines before us that we turn our attention to our review of the trial court’s interpretation of the Freedom of Information Act. The pertinent statutory language reads as follows: “[A]ll public records shall be open to inspection and copying by any citizen of the State of Arkansas.” Ark. Code Ann. § 25-10-105(a) (Supp. 1997). No argument is advanced by any party to challenge that Winston Bryant is a citizen of the state of Arkansas, or that Winston Bryant, acting as a private citizen and not in his capacity as Attorney General, would have standing to bring an appeal under the Freedom of Information Act. The thrust of appellees’ argument that the Attorney General lacks standing to invoke the provisions of the Freedom of Information Act is that the statute should be interpreted as though the word “private” had been added to the statutory language, thereby limiting the reach of the laudable purposes of the Act by requiring that the person employing the provisions of the Act be any private citizen of the State of Arkansas.

We do not supply words not included by the Legislature to assist us in arriving at the legislative intent. Here, the statute provides that “any citizen of the State of Arkansas” shall have the right to inspect and copy all public records. Ark. Code Ann. § 25-19-105(a). But, the Act also refers to “elector” and “their representatives” as those for whose benefit the statute was enacted. Ark. Code Ann. § 25-19-102. Later in the chapter, the Act provides that “The time and place of each regular meeting shall be furnished to anyone who requests the information.” Ark. Code Ann. § 25-19-106(b)(l) (Repl. 1996)(emphasis added). That same subsection also provides that “the public” shall be notified of emergency or special meetings in order that the public shall have representatives at the meeting. Ark. Code Ann. § 25-19-106(b)(2).

This court has previously held that, without delving into the distinctions between the various terms used in the statutes, the Act clearly provides that anyone who requests information is entitled to it. Arkansas Highway and Transp. Dep’t. v. Hope Brick Works, Inc., 294 Ark. 490, 495, 744 S.W.2d 711, 714 (1988), citing Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 77-78, 522 S.W.2d 350, 355 (1975). Here, the words “citizen,” “public,” “person,” and “anyone,” are all used to describe the party empowered to invoke the Act for its public purposes. Interpreting the words broadly is appropriate. As we said in Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975), the reason, spirit, and intention of the legislation shall prevail over its letter. Id., 258 Ark. at 74, 522 SW.2d at 353 (1975), citing Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964).

Relying upon these principles, this Court has previously concluded that a corporation doing business in this state is a party entitled to information pursuant to the Act. Arkansas Highway and Transp. Dep’t. v. Hope Brick Works, Inc., 294 Ark. 490, 495, 744 S.W.2d 711, 714 (1988). Previously, the court had determined that a media representative who was a resident, but did not demonstrate citizenship, was an interested party entided to proceed under the Freedom of Information Act. Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 78, 522 S.W.2d 350, 355 (1975). Indeed, as the court pointed out in Hope Brick Works, a representative, including a representative of a corporation, is entitled to receive any information that any other person would be entitled to receive pursuant to the Act. Arkansas Highway and Transp. Dep’t. v. Hope Brick Works, Inc., 294 Ark. 490, 495, 744 S.W.2d 711, 714 (1988). Further, this court has addressed the issue of who is a member of the “public” for whose benefit the Freedom of Information Act was enacted and held it to be an exceptionally broad term encompassing “both those who support and those who oppose the actions or inactions of public officials, employees, or agencies, as well as those who wish merely to learn of and evaluate the actions of public officials.” City of Fayetteville v. Edmark, 304 Ark. 179, 190, 801 S.W.2d 275, 281 (1990). The definition of “public” is broad and is to be liberally interpreted, and means the public at large, i.e., the “body politic.” Id., citing Arkansas Gazette v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975).

We therefore conclude that, giving the language of the Act its required liberal construction and turning to the legislative intent expressly stated in its provisions, Winston Bryant is not deprived of standing to bring this action because of the public office which he holds. We next address the issue whether Winston Bryant, as the Attorney General, acting in his official capacity with broad powers granted by statutes and Article 7 of the Arkansas Constitution, possesses standing to use the provisions of the Freedom of Information Act for the purpose of ensuring that “public business be performed in an open and public manner” and to use the resources of his office to challenge the denial of his request for information pursuant to the Arkansas Freedom of Information Act.

We find the federal Freedom of Information Act to be instructive on this issue, in light of its role as the progenitor of each state’s individual Freedom of Information Acts. The federal Freedom of Information Act contemplates that states and their agencies have standing to bring suit under the Act, notwithstanding that such standing is not explicitly conferred by the language of the Act. While the issue before this court has not been specifically addressed, several cases decided under the federal Act stand for the proposition that state agencies have standing to appeal a denial of a Freedom of Information Act request. See Environmental Protection Agency v. Mink, 410 U.S. 73 (1972)(members of Congress brought suit under federal Freedom of Information Act to compel disclosure concerning nuclear tests); State of Texas v. Interstate Commerce Commission, 935 F.2d 728 (5th Cir. 1991) (the State of Texas could be a “complainant eligible to recover attorney’s fees under the Freedom of Information Act); Commonwealth of Mass. v. U.S. Dep’t. of Health & Human Serv., 727 F. Supp. 35 (D.Mass. 1989) (state welfare agency brought suit under the federal Freedom of Information Act seeking release of documents held by a federal agency).

Consistent with the interpretation of the federal Freedom of Information Act, and relying upon this court’s own previous liberal construction of the Arkansas Freedom of Information Act concerning standing to proceed, we hold that the Attorney General, acting in his official capacity and using the resources of his office, does possess standing to appeal the denial of his request pursuant to the Arkansas Freedom of Information Act. We therefore reverse and remand to the trial court to address the issues raised in the pending litigation concerning the release of hotline-generated documents by appellees and for further proceedings consistent with this opinion.

Reversed and remanded.

Glaze, J., concurring.

Newbern and Imber, J.J., dissenting.

Tom Glaze, Justice,

concurring. The majority opinion is correct if for no other reason than that Arkansas Highway and Transp. Dep’t v. Hope Brick Works, 294 Ark. 490, 744 S.W.2d 711 (1998), compels reversing and remanding this case. There the court, citing Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975), stated that the FOIA clearly provides that “anyone who requests information under the Act is entided to it.” Hope Brick Works, 294 Ark. at 495. (Emphasis added.) Certainly, Attorney General Winston Bryant is no less a citizen than was the corporation in Hope Brick Works, which we held was entitled to information under the FOIA. The Attorney General is a qualified elector, which requires him to be a citizen. See Ark. Const. Art. 3, § 1, and Art. 19, § 3. To say the Attorney General is not a citizen merely because he acts in his official capacity simply ignores both constitutional and statutory (FOIA) law.

In sum, the Attorney General clearly comes within this broad interpretation of the term “citizen” given the FOIA by this court. Professor Watkins appropriately recognized this broad interpretation, stating that Hope Brick Works may even have expanded the definition of the term “citizen” in the Act to include a foreign corporation. See J. Watkins, The Arkansas Freedom of Information Act 284 (2d ed. 1994). The decisions of Pickens and Hope Brick Works are controlling here, and we have not been asked to overrule them. Therefore, I would reverse.

David Newbern, Justce,

dissenting. The Arkansas Freedom of Information Act (“FOIA”) entitles “any citizen of the State of Arkansas” to inspect and copy public records not covered by an exemption. Ark. Code Ann. § 25-19-105(a) (Repl. 1996)(emphasis added). “Any citizen denied the rights granted to him by this chapter may appeal immediately from the denial” to the appropriate circuit court. Ark. Code Ann. § 25-19-107(a) (Repl. 1996)(emphasis added). The Attorney General, in his official capacity, requested access to documents pursuant to the FOIA, and he appealed the denial of his request to the Pulaski County Circuit Court. The Circuit Court dismissed the appeal on the ground that the Attorney General lacked standing to proceed under the FOIA because he was not a “citizen” within the meaning of the above statutes.

The Circuit Court correctly determined the issue, and its ruling dismissing the Attorney General’s appeal should be affirmed. Although “[w]e liberally construe the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner,” Arkansas Dep’t of Fin. & Admin. v. Pharmacy Assocs., Inc., 333 Ark. 451, 456, 970 S.W.2d 217, 219 (1998), our task is to interpret the statute by giving effect to the intent of the General Assembly as expressed in the words of the law. Sebastian County Chapter of the American Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993).

The FOIA is important because it “let[s] citizens know ‘what their government is up to.’ ” Stilley v. McBride, 332 Ark. 306, 312, 965 S.W.2d 125, 127 (1998)(quoting Department of Defense v. FLRA, 510 U.S. 487, 497 (1994))(emphasis added). “[O]penness in government is an essential ingredient in a democratic society,” and the FOIA clearly furthers that objective. Arkansas Gazette Co. v. Goodwin, 304 Ark. 204, 207, 801 S.W.2d 284, 288 (1990)(Turner, J., concurring).

The text of the Freedom of Information Act, however, reveals no intention on the part of the General Assembly to include a governmental officer, acting in his official capacity, within the term “citizen,” as that term is used in the FOIA. It is undisputed that the Attorney General used the resources of his office to proceed in this action. It has been pursued by lawyers who are in the employ of the Attorney General and paid by the State. It very clearly is an action by the Office of the Attorney General and not by a “citizen” as contemplated by the FOIA.

In support of its position that the Attorney General had standing to proceed under the Arkansas Freedom of Information Act, the majority cites cases that interpret the federal Freedom of Information Act. The majority says that the federal cases are “instructive” on the standing issue. They are, however, entirely inapposite.

In Commonwealth of Massachusetts Dep’t of Public Welfare v. United States Dep’t of Health & Human Services, 727 F. Supp. 35 (D. Mass. 1989), the District Court ordered a federal agency to disclose information requested by a state agency pursuant to the federal Freedom of Information Act. The federal agency, however, did not assert that the state agency lacked standing to proceed under the statute, and thus the District Court made no holding on the point. Likewise, the defendant in State of Texas v. Interstate Commerce Comm’n, 935 F.2d 728 (5th Cir. 1991), did not argue that the State of Texas lacked standing to request information pursuant to the federal FOIA, and the Fifth Circuit did not address the issue. In Environmental Protection Agency v. Mink, 410 U.S. 73, 75 n.2 (1972), the United States Supreme Court addressed a federal FOIA claim brought by Members of Congress against a federal agency and specifically noted that the question of whether the Members could proceed “in their official capacities as Members of Congress” was not before the Court.

Even if the federal cases cited by the majority supported the view that governmental agencies or officers have standing to assert federal FOIA claims, the statute interpreted by those cases, 5 U.S.C. § 552(a) (1994), provides for the release of information “to the public,” not merely to “any citizen.” Any case suggesting that governmental agencies or officers have standing to proceed under language conferring a right to information on “the public” simply has no bearing on whether such parties may proceed under language conferring a right to information only on “citizens.” The Arkansas Freedom of Information Act confers a right to information on “any citizen,” not “the public.” The Attorney General, as a representative of “the public,” would likely have a credible argument that he had standing under the language used in the federal statute. Under the more limited language in the Arkansas statute, however, the Attorney General clearly is not a “citizen” and thus lacks standing to proceed.

This conclusion is not contrary to Arkansas Hwy. and Transp. Dep’t v. Hope Brick Works, Inc., 294 Ark. 490, 744 S.W.2d 711 (1988), or Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975), which are cited in the majority and concurring opinions. In Hope Brick Works, we held that a corporation doing business in Arkansas is a “citizen” with standing to request records pursuant to the FOIA. In Arkansas Gazette Co., we held that the Arkansas Gazette Company (an Arkansas corporation) and one of its reporters (an Arkansas resident) had standing to pursue a claim under the FOIA that they were entitled to attend meetings of committees of the University of Arkansas Board of Trustees.

Neither case supports the conclusion of the majority and concurring opinions that a governmental office such as the Office of the Attorney General is a “citizen” with standing either to request information pursuant to Ark. Code Ann. § 25-19-105(a), or to appeal the denial of such a request pursuant to Ark. Code Ann. § 25-19-107(a). The corporations and the newspaper reporter involved in Hope Brick Works and Arkansas Gazette Co. were purely private actors, and thus those cases supply no basis for holding that a state office is a “citizen” with standing to proceed under the FOIA.

The majority and concurring opinions also allude to statements in Hope Brick Works and Arkansas Gazette Co. to the effect that “‘anyone’ who requests information [under the FOIA] is entitled to it” (emphasis added). The statement orginates from our decision in the Arkansas Gazette Co. case, which concerned whether newspaper reporters were entitled to attend “public meetings” at the University of Arkansas. Quoting from an FOIA provision now codified at Ark. Code Ann. § 25-19-106(b)(l), we said that “[t]he time and place of each regular meeting shall be furnished to anyone who requests the information.” Arkansas Gazette Co. v. Pickens, 258 Ark. at 77, 522 S.W.2d at 355. The provision at issue in the Arkansas Gazette Co. case has no application here, as the Attorney General does not seek to attend “open public meetings” pursuant to § 25-19-106. Rather, he requests the disclosure of documents pursuant to provisions that confer standing only upon a “citizen.”

Finally, the concurring opinion cites the discussion of the Hope Brick Works case in a leading treatise on the Arkansas Freedom of Information Act. See John J. Watkins, The Arkansas Freedom of Information Act 75-78, 332-33 (3d ed. 1998). Nothing in Professor Watkins’s treatise supports the concurring opinion’s statement that Hope Brick Works “compels” the conclusion that the Office of the Attorney General is a “citizen” under the FOIA. In fact, the treatise quotes from an opinion of the Attorney General to the effect that the FOIA “does not address who may or may not review documents by virtue of an official position.” Id. at 78 (quoting Ark. Op. Att’y Gen. No. 89-330). The Attorney General repeated that observation in at least two other opinions. See Ark. Op. Att’y Gen. Nos. 91-323 and 96-386. It appears that the Attorney General has since rethought his position on this issue.

No doubt, a laudable aim of Arkansas’s Freedom of Information Act is to provide citizens with the means of learning “what their government is up to,” Stilley v. McBride, supra, but the majority’s decision in this case will provide the government with the means of learning what the government is “up to,” a novel suggestion, no matter what the context. If that is to be the law, the General Assembly should enact it, not this Court. Nothing in the FOIA suggests that the General Assembly intended any such result.

I respectfully dissent.

Imber., J., joins in this opinion.


author: Per Curiam.

text:
    DUGAL LOGGING, INC. v. ARKANSAS PULPWOOD COMPANY, INC., et al.

    98-973
    983 S.W.2d 126
    Supreme Court of Arkansas
    Opinion delivered December 21, 1998

      Vickery & Landers, PLLC, by: Michael R. Landers; and Burbank, Dodson & McDonald, by: Gary D. McDonald, for appellants.

      Harrell & Lindsey, P.A., by: Paul E. Lindsey, for appellees.
   Per Curiam.

On October 23, 1998, the court of appeals certified this matter to this court because it found that the case presented a question pertaining to interpretation of a rule. After reviewing the briefs filed by the parties, we have determined certification is proper on the issue of whether a motion to extend the time for filing the record was properly granted. Because determination of this issue involves the interpretation and application of Ark. R. App. P. — Civ. 5 and may result in dismissal of the appeal as requested by several of the appellants, we accept certification on this question only.


author: Tom Glaze Justice.

text:
    Pat GLOVER, et al. v. Dean OVERSTREET, et al.

    98-16
    984 S.W.2d 406
    Supreme Court of Arkansas
    Opinion delivered January 7, 1999

      Pike & Bliss, by: George E. Pike Jr. and Deborah Pike Bliss, for appellants.

      Allen Law Firm, by: H. William Allen, for appellees.
   Tom Glaze Justice.

This case involves the Overbrook Property Owners' Association (OPOA), a nonprofit corporation located in North Little Rock. A segment of OPOA’s membership led by Thomas Ahart and hereafter referred to as “Ahart” or the “Ahart members,” attempted unsuccessfully to oust the Association’s entire board of directors at an annual meeting. The Association was organized and incorporated under the Arkansas Nonprofit Corporation Act, Ark. Code Ann. §§ 4-28-201-224 (Repl. 1996). An interpretation of that Act and the Association’s articles of incorporation and bylaws are at issue in this appeal. The court of appeals certified this case to us as involving an issue of first impression, but we also accept reassignment of this appeal because it involves a legal principle of major importance. Ark. Sup. Ct. R. 1 — 2(b)(1) and (d).

This dispute grew, in part, out of hard feelings between members of the OPOA when the land developer, Metropolitan Trust Company, and the Association’s board of directors voted in favor of constructing a neighborhood swimming pool and assessing Association members $250.00 each to underwrite construction costs. There were 176 Association members who voted against the project and only 88 members who voted in favor of it. However, the developer had 2,342 votes that it cast in support of building the pool. This action took place early in 1997 when Metropolitan Trust was entitled to a class B membership and 2,342 votes under the OPOA’s articles of incorporation. That class B membership expired on June 1, 1997, only nine days before OPOA’s annual meeting to be held on June 10, 1997.

The Ahart members, who still harbored ill feelings towards the developer and Association’s board of directors, decided they would move to oust the board members. Under the Association’s articles and bylaws, the board was comprised of nine members who served staggered terms; three of the directors’ terms were to expire and to be filled at the June 10 annual meeting. The Association’s members were notified by a circular in May and by a June 4 letter that only “official proxies” would be utilized at the June 10 meeting, and those proxies limited members to vote only for the three board-member positions whose terms were to expire. Because the Ahart members wanted to remove and replace all or a majority of the directors, they printed their own proxy forms that would allow them to vote on all issues and elections. Ahart’s group was able to obtain 404 proxies.

The Ahart members appeared at the June 10 meeting with a court reporter who recorded what took place. Mr. Dean Over-street took official charge of the Association meeting for the purpose of receiving nominations for the three board-member positions whose terms were expiring, but Ahart attempted several times to make a motion that would oust the entire board and elect five new members. Overstreet explained that the first order of business was to fill the three director slots that had expired, and he would accept nominations in addition to the candidates offered by the board. Ahart members opted not to nominate anyone for the three vacated positions, and over the Ahart members’ objection, Overstreet took a final vote for each of the three positions. The votes cast in favor of the three candidates for the open positions totaled as high as 171.

Mr. Overstreet then recognized the Ahart members who moved (1) to withdraw all powers, duties, and authority from the present board of directors, (2) to amend the bylaws of the Association, (3) to remove all present board members from office, and (4) to elect new board members. After the Ahart members’ motions were seconded, Overstreet tabled them, and explained that the Ahart motions would have to be presented and voted on at a special meeting so all members would be apprised of the motions. Ahart members made no attempt at this time to override Over-street’s action, but they did object to the tabling of their motions. Shortly thereafter, Overstreet received a motion and a second to adjourn the meeting; the meeting ended at 8:30 p.m. At 8:42 p.m., the Ahart members called their own meeting to order, and Mr. Ahart asked for a ballot box. Ahart then proceeded to take a vote on the following two questions from those members who had stayed:

(1) Ahart: “On the motion that I made of removing the existing board of directors, all those in favor.” A chorus of voices said, “Aye.”

(2) Ahart: “Need to vote on the second motion amending the bylaws of OPOA to provide instead of the present Article IV, Section 3, that a vacancy may be created on the board of directors, by a director’s removal from office by a vote of the members. All of those in favor, say aye.”

A chorus of voices said, “Aye.” Ahart then announced, “Motion carried.” Apparently 68 Ahart members cast their own votes, and Mr. Ahart cast 336 votes by proxy. The meeting was adjourned at 8:45 p.m.

On June 17, 1997, the Ahart members filed suit in chancery court against defendants Dean Overstreet and OPOA’s nine board members. Ahart members sought an injunction against Overstreet and the board from (1) taking any action to amend the Association’s articles or bylaws, (2) preventing them from calling any special meeting, and (3) prohibiting them from changing the Association’s status until the chancery court rendered a final decision. Ahart members further asked the court to rescind board actions taken since the June 10 meeting, to declare Ahart nominee members to be new directors, to order all Association records to be delivered to the new board members, and to assess all costs of litigation to the defendants. After a trial was held on October 8, 1997, the chancellor dismissed the Ahart members’ complaint with prejudice. She found that, under the Association’s articles and bylaws, Ahart members first had to move and vote for the transfer of the board’s powers to the membership before the membership could remove the present directors and elect replacements. The chancellor held the evidence failed to show that the Ahart members complied with Association articles and bylaws in this respect, and for this sole reason rejected the Ahart members’ case.

On appeal, Ahart members spend much of their time arguing the Association’s board members (1) improperly rejected Ahart’s proxies, (2) illegally tabled Ahart’s motion to oust incumbent board members, and (3) illegally postponed voting on Ahart’s motions until a special meeting could be held. Overstreet and the incumbent board members respond primarily by arguing that even if the Ahart members are correct in their arguments, they simply failed to proceed in accordance with Association articles and bylaws in their efforts to remove and replace the entire board of directors. This was the chancellor’s holding, and we are compelled to agree.

Ahart members are correct that voting by proxy is established for nonprofit organizations under Ark. Code Ann. § 4-28-212 (Repl. 1996). In this respect, § 4-28-212(c)(l) provides that a member may appoint a proxy to vote or otherwise act for him by signing an appointment form, and provides that the proxy is effective when received by the secretary or other officer or agent authorized to tabulate votes. While a member’s proxy may be expressly limited on the face of the appointment form, see § 4-28-212(c)(4), the statutory law does not provide that an association’s board can arbitrarily impose such limitations on a member’s proxy. See also Ark. Code Ann. § 4-28-224 (Repl. 1996) (other provisions bearing on voting by proxy). But see Howard L. Oleck, Parliamentary Law and Practice for Nonprofit Organizations § 58 (2d ed. 1991) (a proxy can be either “limited” or “general,” and a general proxy allows its holder to vote on any ordinary business that comes before the assembly, but grants no authority to vote on extraordinary matters).

Also, if we were required to reach the issue, we would likely hold that Ahart members are correct that Overstreet, in presiding over the June 10 meeting, was in error when he tabled Ahart’s motions, which were intended to transfer board powers to the members and to remove incumbents and elect new board members. The Association’s articles or bylaws do not adopt Roberts’ Rules of Order, but under those rules, which were referred to by both the Ahart members and appellees, the “assembly” may temporarily lay aside a question when something else of immediate urgency has arisen. See Roberts’ Rules of Order Newly Revised § 17 (7th ed. 1970). While there is no set time under those Rules for taking the matter up again, the matter can be resumed at the will of a majority. Id. See also Howard L. Oleck, Parliamentary Law and Practice for Nonprofit Organizations § 22 (2d ed. 1991).

In the present case, Ahart members did not call for a vote to overturn Overstreet’s ruling during the first meeting, although Ahart members did object to tabling their motions. Nor did they attempt to acquire board power at their own meeting so they could remove and replace OPOA’s incumbent board members by casting their votes in present or by proxies. Thus, even if we agreed their proxies were valid and their earlier motions had been illegally rejected by Overstreet, the Ahart group’s argument fails because Ahart ultimately did not comply with the terms of the Association’s articles or bylaws, which required them first to transfer board powers to the members before taking action to remove the incumbent directors.

OPOA’s articles and bylaws establish the board of directors, its terms, and provide that the board shall manage the affairs of the Association and exercise the powers, duties, and authority vested in the Association subject to the members voting to transfer those powers to the superior right of the members. This transfer of powers was required of the Ahart members, because the incumbent directors’ terms are staggered. Accordingly, only up to three new directors can be voted on at an annual meeting unless the members change the OPOA’s bylaws. In short, the Association has no existing bylaw that would permit removal of more than three directors, much less the ouster of the entire board. Professor Oleck in his treatise discusses the removal of directors as follows:

Directors may be removed from office, for good cause, by a majority vote of the board of directors or the members. What constitutes “good cause” depends on the nature and circumstances of the organization, but it is not simply a desire by the majority to be rid of an opposing faction. Directors should be removed pursuant to procedural provisions contained in the bylaws or charter.
If a director is removed illegally, any election of his replacement is also illegal. Although it is the general policy of some state courts to avoid interfering in the internal affairs of nonprofit organizations, the removal of a director who has been illegally elected may be subjected to court review. Id. at § 82.

Although Arkansas’s Nonprofit Corporation Act of 1993 is inapplicable to OPOA because OPOA was incorporated under Act 176 of 1963, as amended, the 1993 Act [compiled at Ark. Code Ann. §§ 4-33-101-1701 (Repl. 1996)] is at least worth mentioning. While the 1963 Nonprofit Corporation Act does not address the removal of directors, the 1993 Act does. Section 4-33-808 of the 1993 Act provides members may remove directors without cause but only at a meeting called for that purpose.

In the instant case, because no statutory law, articles, or bylaws specifically address the removal of directors, Ahart members were required by Association articles and bylaws to first withdraw or suspend the directors’ powers and transfer them to the members before the Ahart members could rescind the existing board’s actions taken at the Association’s annual meeting. They simply failed to do so. As discussed in detail above, Ahart articulated his members’ motion to transfer board powers to the members in the initial meeting presided by Overstreet, but when Ahart members formally resumed the meeting, after Overstreet’s faction left, Ahart never mentioned the transfer-of-power motion, nor was a vote taken on that question. We also note that the two motions made by Ahart were not seconded before Ahart called for a vote, and voters were not given the opportunity to vote “no” on the questions.

The Ahart members actually agree that they were first required to transfer the board powers to the members, but they submit that, during their “resumed meeting,” it was only necessary to make abbreviated references to the motions previously made earlier when Overstreet was presiding. We cannot agree. In fact, what the Ahart members refer to as abbreviated references are not abbreviated at all. As already discussed, Ahart entirely omitted any mention of a motion to transfer board powers to the members. As a consequence, they took no vote on that critical and requisite issue.

In conclusion, we believe the stated general policy of the courts to avoid intermeddling in corporate governance and operation is a sound one. See Baker v. Henry Glass & Co., 140 Misc. 2d 836, 531 N.Y.S. 2d 746 (1998); see also 19 C.J.S. Corporations § 581 (1990). That policy is valid, at least, in situations like the one present here. Here, OPOA had no parliamentary or formal rules in place for conducting its meetings, and while the incumbent board or officers may arguably be said to have erred in limiting members’ proxies or tabling Ahart’s motions, the Ahart members still had every opportunity to overrule and vitiate such actions. Nonetheless, the Ahart members, as discussed above, made their own critical errors when they attempted to remove and replace the incumbent members. Perhaps our decision would be different if the incumbent directors or officers had acted in fraud, bad faith, or gross mismanagement. Id. The chancellor made no such finding, nor do the Ahart members argue for it. Again, the most that can be said in behalf of the Ahart members is that the incumbent board or officers illegally erred when ruling on the Ahart proxies and motions, but even assuming these rulings were erroneous, the Ahart members were not prejudiced, since they had the opportunity, but failed to remedy those errors.

For the reasons above, we affirm.

Smith, J., not participating.

       At this point, Ahart members were offering four, not five, of its members for nomination, because one of their designated five was not a property owner as required by the articles of incorporation.

       Since we assume the validity of the Ahart members’ proxies in reaching our decision, we need not address whether ouster of the entire board was an extraordinary matter for which a proxy could be cast.


author: Donald L.Corbin, Justice.

text:
    Ronnie FURMAN v. SECOND INJURY FUND
    98-692
    983 S.W.2d 923
    Supreme Court of Arkansas
    Opinion delivered January 7, 1999

      James R. Filyaw, for appellant.

      David L. Pake, for appellee.
   Donald L.Corbin, Justice.

Appellant Ronnie Furman prevailed in an appeal against the Second Injury Fund for workers’ compensation benefits, which had been denied him by the Arkansas Workers’ Compensation Commission in Second Injury Fund v. Furman, 60 Ark. App. 237, 961 S.W.2d 787 (1998). Furman subsequently petitioned the Arkansas Court of Appeals for attorney’s fees for prevailing in his appeal. The court of appeals, in a tie vote (6 to 6), denied Furman’s motion for attorney’s fees. Second Injury Fund v. Furman, 62 Ark. App. 194, 972 S.W.2d 255 (1998). We granted the petition to review the tie-vote decision by the court of appeals. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(e). We affirm.

Furman cites Ark. Code Ann. § 11-9-715(b)(l) (Repl. 1996) as authority to grant his request for attorney’s fees:

In addition to the fees provided in subdivision (a)(1) of this section, if the claimant prevails on appeal, the attorney for the claimant shall be entitled to an additional fee at the full commission and appellate court levels, the additional fee to be paid equally by the employer or carrier and by the injured employee or dependents of a deceased employee, as provided above and set by the commission or appellate court.

On reading this statute, it is clear that this subsection does not mention the Second Injury Fund, nor can it be construed so as to be included definitively within the terms “employer or carrier.” We reject Furman’s argument to interpret the statute to hold the Fund liable for attorney’s fees on appeal in deference to our long-standing rule that attorney’s fees cannot be awarded unless specifically provided for by statute. Arkansas Okla. Gas Corp. v. Waelder Oil & Gas, Inc., 332 Ark. 548, 966 S.W.2d 259 (1998).

We respectfully invite the General Assembly to consider this matter and enact such legislation as may be appropriate to address the discrepancy in section 11-9-715, which currently provides for attorney’s fees from the Fund at the hearing level, but makes no similar provision for such fees on appeal.

Affirmed.

Smith, J., not participating.


author: Annabelle Clinton Imber, Justice.

text:
    C. Thomas PEARSON, Jr. v. Joseph R. HENRICKSON and Mary Ann Henrickson
    98-918
    983 S.W.2d 419
    Supreme Court of Arkansas
    Opinion delivered January 7, 1999

      Pearson Law Firm, by: Charles R. Chadwick and Christopher F. Woomer, for appellant.

      Willaim R. Mayo, for appellees.
   Annabelle Clinton Imber, Justice.

This is an appeal from an award of to the tenant in an unlawfuldetainer action. The trial court ruled that the surrender of the leased premises by the tenant-defendants, the Henricksons, to the landlord-plaintiff, Mr. Pearson, pursuant to a consent order did not preclude the Henricksons from claiming damages for loss of their leasehold interest. The jury returned a verdict in favor of the Henricksons, and awarded them $13,525.00 in damages. Mr. Pearson then filed a motion for á new trial on grounds that the award was excessive, contrary to the law, and against the preponderance of the evidence. The motion was deemed denied pursuant to Ark. R. App. P. — -Civ. 4(c). On appeal, Mr. Pearson contends that the trial court erred when it instructed the jury that they could award damages for loss of leasehold interest and when it denied his motion for a new trial. We affirm.

In late 1991, Joseph and Mary Ann Henrickson leased a building from Tom Pearson for the purpose of opening a coffee house and framing gallery. The term of the lease was from October 1, 1991 to September 30, 1994, with the rent initially set at $800.00 per month for the first year, $1,000.00 per month for the second year, and then $1,100.00 per month for the third and final year of the lease. The lease agreement required the Henricksons to make certain substantial repairs to the interior of the building in exchange for a waiver of the deposit and the first three months’ rent. The agreement also obligated Mr. Pearson to repair the roof and exterior of the building, and to provide and install air conditioning equipment in “good and operable condition.”

Both parties proceeded with the repairs and renovations contemplated in the lease agreement. However, prior to opening the coffee house in February of 1992, the Henricksons experienced problems with the repairs undertaken by Mr. Pearson. Specifically, the roof leaked and the air conditioner failed to work properly. Water ran down the walls of the coffee house and onto the tables and floor, damaging art displayed for sale and prompting complaints by customers. When the summer months arrived, the temperature exceeded 100 degrees for the entire month of July, causing food to spoil. The Henricksons notified Mr. Pearson about these problems. Although there is some dispute as to when and what repairs were subsequently undertaken, the water and air conditioning problems were never remedied while the Henricksons were tenants.

On June 2, 1993, the Henricksons were served with a notice to vacate, which stated that they were in breach of their lease for failure to pay rent and late charges. The Henricksons refused to vacate, asserting that they were still paying monthly rent and that no late charges had ever been assessed. On July 26, 1993, Mr. Pearson filed a complaint for possession of the premises and for past-due rent and late charges. After the Henricksons were served with the complaint and with an intent to issue a writ of possession, they counterclaimed for damages to foodstuffs, artwork, art supplies, for loss of business income, and for loss of value to their leasehold interest. On September 10, 1993, the parties entered into a consent order, whereby the Henricksons agreed to vacate the premises. The consent order specifically stated that its entry “shall not be reflective as to the ultimate remaining issues of the Plaintiffs Complaint . . . and to the issues contained in the Defendant’s Answer and Counterclaim.”

At the trial, Ms. Henrickson testified that she and her husband expended over $14,000.00 on repairs to the interior and courtyard of the building. She testified that her framer, who was paying her rent, quit because of the water leaks and the lack of air conditioning. During her testimony, photographs were admitted into evidence that showed the condition of the leased premises both before and after the repairs, along with a videotape that depicted the damage caused by water leaking from the air conditioner and the roof. Ms. Henrickson also testified that they were claiming $600.00 for damaged posters and loss to foodstuffs.

The jury was instructed that the Henricksons were claiming two elements of damage in their counterclaim for wrongful eviction: (1) damage to foodstuffs, artwork, and art supplies; and (2) the loss of value to their leasehold interest. The trial court also instructed the jury that the amount expended by the Henricksons to prepare the leasehold for occupancy was not to be considered as the measure of damages, but that the jury could consider that amount in determining the value of the remaining leasehold interest. The jury returned a verdict in favor of the Henricksons on their counterclaim for wrongful eviction against Mr. Pearson, with an award of $13,525.00 in damages.

Mr. Pearson’s first point on appeal is that the trial court erred when it instructed the jury that they could consider loss of leasehold interest as an element of the damages claimed by the Henricksons. Mr. Pearson argues that the Henricksons waived this element of damages by voluntarily surrendering the premises and their leasehold interest. In response, the Henricksons contend that the consent order specifically preserved their claim for loss of leasehold interest and, further, that the leasehold was involuntarily surrendered under threat of legal process. We agree.

The consent order stipulated that its entry would not reflect on the issues “contained in the Defendant’s Answer and Counterclaim.” In their counterclaim, the Henricksons alleged that Mr. Pearson’s actions constituted wrongful eviction, causing damage to their “leasehold interest and the value of their lease.” Thus, the consent order was a specific reservation of their right to claim damages to their leasehold interest. Mr. Pearson’s argument that the Henricksons waived any right to damages for loss of leasehold interest is clearly not supported by the terms of the consent order. In Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993), we defined waiver as:

[V] oluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. It may occur when one, with full knowledge of material facts, does something which is inconsistent with the right or his intention to rely upon that right. The relinquishment of the right must be intentional.

(citing Continental Ins. Cos. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978)). The Henricksons did not abandon their leasehold rights with the intent to be forever deprived of their benefit. Rather, they specifically reserved those rights according to the express terms of the consent order. We, therefore, conclude that the Henricksons did not waive their right to recover damages for loss of value to their leasehold interest.

Additionally, when a tenant surrenders a premises under the threat of legal process already issued, that surrender will not be considered voluntary. See Woods v. Kirby, 238 Ark. 382, 382 S.W.2d 4 (1964); Fleming v. Cooper, 224 Ark. 10, 271 S.W.2d 772 (1954). Here, the Henricksons agreed to the consent order in the face of imminent eviction and a pending lawsuit. They were served with a notice to vacate, a complaint for possession, and an intent to issue a writ of possession. The only action remaining was actual eviction by the sheriff. Under these circumstances, we conclude that the Henrickson’s surrender of the premises was not voluntary.

Mr. Pearson suggests that our holding in Woods requires service of the actual writ of possession on a tenant before surrender of the premises will be considered involuntary, and further argues that, to the extent the Fleming decision is inconsistent with that proposition, it should be overruled. We do not agree that Woods imposes such a specific requirement. Both Woods and Fleming are consistent in holding that any threat of legal process served on a tenant is sufficient to indicate that a subsequent surrender of the premises is involuntary. Thus, we find no merit in Mr. Pearson’s argument that our decision in Fleming should be overruled. For the above reasons, we conclude that the trial court properly instructed the jury to consider loss of leasehold interest as an element of damages.

Mr. Pearson next argues that the trial court improperly denied his motion for a new trial, wherein he contended that the damages awarded by the jury were excessive and against the preponderance of the evidence. The Henricksons assert that Mr. Pearson’s arguments are equivalent to a challenge to the sufficiency of the evidence and are not properly preserved for appeal as he did not make a motion for directed verdict below. However, our rules of civil procedure clearly allow a motion for new trial to be made on the grounds asserted by Mr. Pearson, and no motion testing the sufficiency of the evidence is required as a prerequisite to making a motion for a new trial on these grounds. See Ark. R. Civ. P. 59(c); see also Yeager v. Roberts, 288 Ark. 156, 702 S.W.2d 793 (1986). Thus, Mr. Pearson properly preserved his arguments on appeal by filing a motion for a new trial.

On appellate review of a trial court’s denial of a motion for new trial, the standard of review depends upon whether the appellant seeks to set aside the jury’s verdict on the issue of liability or on damages. Where the verdict involves the issue of liability, we apply a “substantial evidence” standard of review. See Harper v. Clark Equip. Co., 300 Ark. 413, 779 S.W.2d 175 (1989). However, when the issue appealed is primarily one of damages, we reverse a denial of a motion for a new trial only if the judge’s ruling was a clear and manifest abuse of discretion. Depew v. Jackson, 330 Ark. 733, 957 S.W.2d 177 (1997); Harper, supra. In this appeal, Mr. Pearson challenges the jury’s verdict on damages. Therefore, the proper standard of review is whether there has been a clear and manifest abuse of discretion by the trial court.

Mr. Pearson asserts that the Henricksons presented no evidence to establish the value of their loss of leasehold interest. He argues that the evidence only supported an award of $600.00, or the value of the damaged artwork and foodstuffs, and he asks this court to reduce the jury’s award to that amount. According to Mr. Pearson, any amount in excess of $600.00 is based on speculation. The Henricksons insist that the testimony introduced at trial supports the jury’s verdict. They also assert that because the jury rendered a general verdict, there is no way to ascertain what amount the jury awarded for each element of damages. We agree.

In evaluating loss of value to a leasehold interest, the correct measure of damages is the amount by which the fair market value of the lease exceeds the agreed-upon rent. Ark. State Highway Comm’n v. Humble, 248 Ark. 685, 453 S.W.2d 408 (1970); Ark. State Hwy. Comm’n. v. McHaney, 234 Ark. 817, 354 S.W.2d 738 (1962); The Home Company v. Lammers, 221 Ark. 311, 254 S.W.2d 65 (1952). Mr. Pearson argues that no testimony or direct evidence was introduced to establish any increase in rental value over and above what the Henricksons were paying in rent. However, we have previously held that it is not essential to evaluate the leasehold in exacdy that manner in order to recover damages for a loss of leasehold interest. Humble, supra. With regard to leasehold improvements, we have held that “the value of fixtures lost because incapable of removal [may] sometimes [be] admitted, not as proving specific items of damage, but as a means of showing the value of the unexpired term.” Humble, supra. Therefore, the value of improvements may be considered in determining the value of the remaining leasehold interest.

The testimony in this case established that the Henricksons spent $14,544.00 for improvements to the leased building. Ms. Henrickson testified that $7,662.46 was spent making improvements to the interior of the building. An additional $6,882.08 was spent constructing a patio area and fishpool in the courtyard behind the building. Ms. Henrickson testified that these figures represent only the cost of materials, and do not include any estimate for the value of labor expended in making those improvements. Her testimony also established the amount of rent being charged, the one-year term remaining on the lease at the time the premises was surrendered, and the lost rental income as a result of losing their framer. The photographs and videotape illustrated the rental property’s appearance both before and after renovation and the extent of the damage to the improvements. We conclude that this evidence is a competent basis for the jury’s verdict when the ultimate issue was the value of the unexpired lease. See Humble, supra.

We further note that the trial court properly instructed the jury to consider this evidence, not as measure of damages, but in determining the value of the remaining leasehold interest. Absent evidence to the contrary, there is a presumption that the jury has obeyed its instructions. Northwestern Nat’l. Cas. Co. v. Mays, 273 Ark. 16, 616 S.W.2d 734 (1981). Nor should we speculate as to the basis for a jury’s verdict. Esry v. Carden, 328 Ark. 153, 942 S.W.2d 843 (1997). Because the verdict was rendered on a general verdict form, it is an indivisible entity. Avery v. Ward, 326 Ark. 829, 934 S.W.2d 516 (1996); Lammers, supra. We cannot therefore sustain Mr. Pearson’s argument and attempt to divine exactly how the jury arrived at its verdict.

Finally, Mr. Pearson asserts that the award of $13,525.00 is excessive in light of the evidence presented at trial. When an award of damages is alleged on appeal to be excessive, we review the proof and all reasonable inferences most favorably to the appellee and determine whether the verdict is so great as to shock our conscience or demonstrate passion or prejudice on the part of the jury. United Ins. Co. of America v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998); Builder’s Transp., Inc. v. Wilson, 323 Ark. 327, 914 S.W.2d 742 (1996). Construing all reasonable inferences in favor of the Henricksons, we do not find the amount of the verdict to be so great as to shock our conscience. Nor does the verdict demonstrate passion or prejudice on the part of the jury. We, therefore, hold that the trial court’s denial of Mr. Pearson’s motion for a new trial is not a clear and manifest abuse of discretion.

Affirmed.

Smith, J., not participating.