author: Donald L. Corbin, Justice.

text:
    Bill TOMERLIN and All Arkansas Bail Bond Company, Inc. v. Tom NICKOLICH, Chairman, and Arkansas Professional Bail Bond Company and Professional Bail Bondsman Licensing Board
    99-1342
    27 S.W.3d 746
    Supreme Court of Arkansas
    Opinion delivered October 12, 2000

      Ed Daniel IV P.A., by: Ed Daniel IV; and Wilson & Associates, P.A., by: Christopher L. Palmer, for appellants.

      Mark Pryor, Att’y Gen., by: Larry E. Crane, Ass’t Att’y Gen., for appellees.
   Donald L. Corbin, Justice.

Appellants Bill Tomerlin and All Arkansas Bail Bond Co., Inc., appeal the decision of the Arkansas Professional Bail Bond Company and Professional Licensing Board (“Board”) revoking their licenses. This case was transferred to us from the Arkansas Court of Appeals as involving the determination of the constitutionality of a statute; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(6) and (d). Appellants raise several points on appeal. We find no merit in any of their arguments and affirm.

Bill Tomerlin is a licensed bail bondsman and sole owner of All Arkansas Bail Bond Co., Inc. Tomerlin and his company were the subject of a disciplinary hearing held on July 10, 1998. Tomerlin first came under investigation when Jesus Barrios filed a complaint against him stemming from events that occurred on July 28, 1997. On that day, Barrios and a companion were trying to change a tire on Barrios’s 1991 Dodge Ram Charger truck. They were in the parking lot of the Scholars Inn Apartments in Fayetteville when John Van Curen Jr., an employee of Tomerlin’s, approached them and began asking questions about Edgar Licon. The two men, who are Hispanic, spoke little English and denied knowing Licon. At some point during this exchange, Van Curen Jr. told Barrios to give him the keys to the truck, and Barrios complied. Van Curen Jr. testified that he had received a call from an informant that Licon, a bail jumper, was seen with the pair at the apartment complex. Van Curen then called Tomerlin and Patrick Sneed, also an employee of Tomerlin’s. The two men arrived at the apartments shortly thereafter.

According to Van Curen Jr., Tomerlin also tried to question the men, but got no answers. The Fayetteville police were then called to the scene, and they tried questioning Barrios and his companion. They also searched the Ram Charger for drugs after Van Curen Jr. insinuated that there may be drugs in the vehicle. Van Curen Jr. told the police that he had the keys to. the truck and explained that it was listed as collateral on the bond for Licon. According to Van Curen Jr., the police then instructed Barrios and his companion to leave. Van Curen testified that he had paperwork indicating that the Ram Charger, a 1986 Nissan truck, and household goods located in an apartment at the Scholars Inn were listed as collateral on the bond. He stated that he did not learn until later that the Ram Charger was not actually listed on the bond for Licon.

Shortly after Tomerlin and his employees left the Scholars Inn, they received a phone call from the informant that the household items were being moved out of the apartment. According to Van Curen Jr., Tomerlin instructed him, his father, John Van Curen Sr., and another employee, James Wade, to return to the Scholars Inn and take possession of the Ram Charger, the Nissan truck, and the remaining household items. Tomerlin further instructed the men to take the vehicles out to Wade’s residence. Tomerlin denied this allegation. He claimed that he never instructed his employees to take possession of the Ram Charger. According to Tomerlin, he had no idea that the truck had been taken until Van. Curen Jr. notified him. Tomerlin further testified that once he learned that his employees had taken the truck, he ordered them to return it to the Scholars Inn. According to Tomerlin, his employees refused to return the truck, so he then suggested they drop it off at a Wal-Mart parking lot. Tomerlin admitted, however, that he never notified the police or Barrios of the truck’s whereabouts. In fact, when questioned by the Fayetteville police, Tomerlin denied having any knowledge of the truck’s whereabouts. He claimed that he did not want to be implicated in a theft charge. Tomerlin and Van Curen Jr. both testified that they had no idea what ultimately happened to Barrios’ truck.

After receiving Barrios’s complaint, the Board assigned Norma Rowell, a private investigator, to investigate the allegations against Tomerlin. According to Rowell, Tomerlin was very uncooperative with her investigation. She stated that Tomerlin refused to meet with her without his attorney being present. Moreover, he refused to allow Rowell to interview his employees without him and his attorney being present. After about a month, Rowell was finally able to interview Tomerlin.

In the course of this investigation, other allegations against Tomerlin were uncovered and presented to the Board. The Board ultimately considered the following charges against Tomerlin and, by implication, All Arkansas Bail Bond Co., Inc.: (1) they, either directly or by their agents, took possession of Barrios’s truck and actively concealed knowledge of taking the truck and its whereabouts, and such action involved fraudulent and dishonest acts; (2) they refused to cooperate with the Board’s investigation; (3) they used a convicted felon as a bounty hunter or bail enforcement agent; (4) they hired John Van Curen Sr. who had never been a licensed bail bondsman, licensed private investigator, or certified law enforcement officer to work as a bail enforcement agent or bounty hunter; and (5) they paid $7,000 for a forged death certificate on a client in order to avoid paying a forfeiture. The allegation that Tomerlin had obtained a false death certificate was ultimately dismissed by the Board for lack of proof. The remaining allegations were all adopted as findings of fact by the Board. The Board then voted to revoke the licenses of both Tomerlin and All Arkansas Bail Bond Co., Inc. In addition, they levied an administrative fine in the amount of $2,500 against Tomerlin as a result of his failure to cooperate with the Board’s investigation.

Tomerlin filed an appeal in the Circuit Court of Pulaski County alleging (1) that he was entitled to a de novo review of the Board’s decision pursuant to Ark. Code Ann. § 17-19-209(g)(4) (Supp. 1997); (2) that the Board’s decision was not supported by substantial evidence; and (3) that the punishment inflicted was arbitrary and capricious. In an interim order dated May 11, 1999, the trial court denied Appellants’ motion for a de novo review. Then, in an order dated July 30, 1999, the trial court affirmed the Board’s findings of fact and conclusions of law. The present appeal stems from those two orders.

This court’s review, like that of the circuit court, is limited in scope and is directed not to the decision of the circuit court, but to the decision of the administrative agency. Arkansas Bd. of Exam’rs v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998); Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). It is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record; rather, review is limited to ascertaining whether there is substantial evidence to support the agency’s decision. Id. We review the entire record in making this determination. Carlson, 334 Ark. 614, 976 S.W.2d 934; Arkansas Alcoholic Beverage Control Bd. v. Muncrief 308 Ark. 373, 825 S.W.2d 816 (1992).

We first address Appellants’ argument that they were entitled to a de novo review of the Board’s decision. The trial court refused to apply a de novo standard of review on the ground that section 17-19-209(g)(4) was unconstitutional because it violated the “separation of powers” doctrine. Specifically, the trial court determined that pursuant to this court’s decision in Goodall v. Williams, 271 Ark. 354, 609 S.W.2d 25 (1980), de novo review of agency cases was only allowed in a “narrowly preserved circumstance, which turns on the character and legal status of the affected interests.” The trial court further ruled that Ark. Code Ann. § 25-15-212 (Repl. 1996) of the Administrative Procedures Act (“APA”) governed the review of this case.

As the State correctly points out, state licensing boards, such as the one here, are created by the General Assembly and exercise legislative functions. In Goodall, this court distinguished those instances when de novo review is appropriate and when it is constitutionally prohibited. This court said in relevant part:

The issue of constitutional propriety of de novo review by the judiciary of administrative action primarily turns upon the character and legal status of the interests which are affected by administrative action. If the interests affected by administrative actions are constitutionally or statutorily preserved or preserved by private agreement, so that their enforcement is a matter of right, de novo review by the judiciary of administrative decisions altering these interests is appropriate. On the other hand, if the interests affected are less than fixed or determined and their existence primarily depends upon executive or legislative wisdom, de novo review is inappropriate, and judicial review is basically limited to a determination of whether these interests have been arbitrarily or capriciously affected. The doctrine of separation of powers therefore restricts the judiciary to a very limited review of those matters which are left to the wisdom of the executive in the application or execution of laws but imposes upon the judiciary the obligation to redetermine the matter when the executive redefines private rights.

Id. at 356, 609 S.W.2d at 27 (citations omitted).

Here, the right of Appellants to be licensed is not constitutionally or statutorily preserved. Nor is such a right preserved by private agreement. The requirements that must be met before a person may be licensed as a professional bad bondsman are codified at Ark. Code Ann. §§ 17-19-201 to 205 (Repl. 1995). Arkansas Code Annotated § 17-19-106 (Repl. 1995) created and empowered the Board to administer and enforce the licensing requirements for bail bond companies and bail bondsmen. Moreover, that section expressly grants the Board the authority to establish reasonable rules and regulations necessary to carrying out its duty of regulating bond companies and bondsmen.

This court has said that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. Carlson, 334 Ark. 614, 976 S.W.2d 934. Because decisions regarding the licensing of bond companies and their employees turn on executive wisdom, it is appropriate to limit the scope of review on appeal. De novo review of such a decision would violate the “separation of powers” doctrine, and as such, section 17-19-209(g)(4) was unconstitutional. Accordingly, Appellants’ argument on this point fails.

Next, Appellants contend that this court has set forth varying tests for substantial evidence, and they urge us to adopt a test set forth by the Eight Circuit Court of Appeals in Loving v. Department of Health and Human Servs., 16 F.3d 967 (8th Cir. 1994). There is absolutely no merit to this argument. Our case law discussing the issue of whether an administrative agency’s decision is supported by substantial evidence is consistent. See Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999); Carlson, 334 Ark. 614, 976 S.W.2d 934. In Smith, this court set forth the following test for substantial evidence:

Substantial evidence has been defined as valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture. The challenging party has the burden of proving an absence of substantial evidence. To establish an absence of substantial evidence to support the decision the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. The question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence.

Id. at 362, 994 S.W.2d at 461 (citations omitted).

The test advocated by Appellants as set out in Loving, calls for a balancing of all the evidence presented on the record. Appellants, however, fail to demonstrate why this court should abandon its long-established principle of considering only that evidence that supports the agency’s decision. This court has consistently refused to overturn precedent where an appellant fails to present a compelling argument warranting reversal of this court’s case law. Nation v. Ayres, 340 Ark. 270, 9 S.W.3d 512 (2000); Efurd v. Hackler, 335 Ark. 267, 983 S.W.2d 386 (1998). Accordingly, Appellants’ argument on this point fails.

Appellants next argue that there was not substantial evidence to support the Board’s decision. We disagree. The Board’s decision to revoke Appellants’ licenses was supported by testimony from both Van Curens, as well as the affidavit of Barrios that was admitted into evidence. The only evidence disputing Tomerlin’s involvement in the disappearance of Barrios’ truck was his own denials. It is the prerogative of the Board to believe or disbelieve any witness and to decide what weight to accord the evidence. Carlson, 334 Ark. 614, 976 S.W.2d 934. Moreover, Tomerlin admitted that he withheld information regarding the disappearance of Barrios’s truck from authorities in order to protect his own interests.

Other evidence considered by the Board included testimony by Van Curen Jr. that Kevin Vaughn, a convicted felon, accompanied him on two different occasions to apprehend bail jumpers. According to Van Curen Sr., Caroline Tomerlin, Tomerline’s wife, notarized an agreement authorizing him to act as a bounty hunter for All Arkansas Bail Bond Co., Inc. A copy of this agreement was introduced at the hearing; however, Mrs. Tomerlin denied ever notarizing such an agreement. Van Curen Sr. further testified that he accompanied his son on trips to apprehend bail jumpers, even though he was not, nor ever had been, a licensed bondsman. A review of the record in this case reveals that there was substantial evidence to support the Board’s decision.

Finally, Appellants argue that the punishment imposed by the Board was arbitrary, capricious and overly harsh, and asks this court to remand this matter for the determination of a more appropriate punishment. Administrative actions may be considered arbitrary and capricious where they are not supported by any rational basis. Smith, 338 Ark. 354, 994 S.W.2d 456; Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980). To set aside an agency decision as arbitrary and capricious, the party challenging the action must prove that it was willful and unreasoned action, without consideration and with a disregard of the facts and circumstances of the case. Id. This court has stated that the requirement that an administrative decision not be arbitrary and capricious is less demanding than the requirement that it be supported by substantial evidence. Beverly Enter.-Ark., Inc. v. Arkansas Health Servs. Comm’n, 308 Ark. 221, 824 S.W.2d 363 (1992). An action is not arbitrary simply because the reviewing court would have found differently. Smith, 338 Ark. 354, 994 S.W.2d 456.

In the present action, Appellants first argue that the imposition of the $2,500 fine was inappropriate in light of the fact that any delay in the investigation stemmed from scheduling problems and Tomerlin’s desire to have an attorney present during any interview. This argument ignores, however, Tomerlin’s consistent refusal to allow the Board’s investigator to talk with his employees, including those employees who were no longer working for Tomerlin. Further, the Board’s investigator testified that she repeatedly attempted to contact Tomerlin, with no success until over a month later. In light of this evidence, we cannot say that the Board’s decision to impose an administrative fine was arbitrary and capricious.

As to the revocation of their licenses, Appellants argue that this penalty was arbitrary and capricious because the evidence was undisputedly in their favor and because Appellants have no prior disciplinary record. Appellants’ first contention is erroneous, as we have already concluded that there was substantial evidence to support the Board’s decision. This court has stated that once substantial evidence is found, it automatically follows that a decision cannot be classified as unreasonable or arbitrary. Id. We are also unpersuaded by Appellants’ second contention. The egregious nature of Appellants’ offenses warranted the punishment of revocation. Accordingly, we cannot say that the Board’s decision to revoke Appellants’ licenses was arbitrary and capricious.

Affirmed.

       Barrios alleged in his complaint that while questioning him about Licon, Tomerlin held a gun to his head. This allegation was never substantiated, however. The Board did not consider this allegation in determining whether to revoke Tomerlin’s license.

       Section 17-19-209(g)(4) has since been repealed by Act 1477 of 1999.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    James F. “J.F.” VALLEY v. The Honorable David BOGARD, Circuit Judge; The Honorable Arnell Willis, State Representative; Arkansas County Board of Election Commissioners; Sharon Priest, Secretary of the State of the State of Arkansas; Arkansas Democratic State Committee; Phillips County Democratic Committee; Phillips County Board of Election Commissioners; Desha County Board of Election Commissioners; Desha County Democratic Committee; Arkansas County Democratic Committee; Monroe County Democratic Committee; Monroe County Board of Election Commissioners
    00-539
    28 S.W.3d 269
    Supreme Court of Arkansas
    Opinion delivered October 12, 2000

      Wilson & Valley, for appellant.

      Chalk S. Mitchell, for appellee Arnell Willis.
    L. Ashley Higgins, P.A., by: L. Ashley Higgins, for appellee Philfrps County Board of Election Commissioners.
   Robert L. Brown, Justice.

Appellant James F. “J.F.” Valley appeals from an order declaring him ineligible to stand for election as a candidate for the Democratic Party’s primary election and directing that the votes cast for him in that election not be counted. Valley contends on appeal that (1) the trial court did not have jurisdiction to hear the case; (2) service of process on him was ineffective; (3) Pulaski County was not the proper venue for this matter; and (4) the trial court’s findings and conclusions are not supported by substantial evidence. We hold that none of these points has merit, and we affirm.

On or before April 4, 2000, which was the filing deadline, Valley and Appellee Arnell Willis filed as candidates for nomination for State Representative, District 99, in the May 23, 2000 Democratic preferential primary election. District 99 is made up of parts of Phillips, Monroe, Arkansas, and Desha Counties. On April 26, 2000, Willis filed a petition for declaratory judgment and writ of mandamus in Pulaski County Circuit Court and prayed to have Valley declared ineligible as a candidate for State Representative, District 99. Specifically, Willis alleged that Valley did not meet requirements to run for that office because he did not live in District 99 for the period of one year prior to the election, as required by Article 5, § 4, of the Arkansas Constitution. He named as defendants Valley; Secretary of State, Sharon Priest; the Arkansas Board of Election Commissioners; the Arkansas Democratic State Committee; the Democratic Committees of Phillips, Desha, Arkansas, and Monroe Counties; and the Boards of Election Commissioners of the same four counties. The trial court later granted the State Democratic Committee’s motion to be dismissed.

On May 2 and 3, 2000, a hearing was held before the Pulaski County Circuit Court. On May 4, 2000, the trial court entered an order finding that Valley was not qualified to run for the office of State Representative, District 99. The court ordered that if ballots were already printed, no votes cast for Valley should be counted. Valley appealed and simultaneously petitioned this court for a writ of certiorari to have the court reporter prepare the transcript. This court issued that writ. On May 12, 2000, we issued a per curiam opinion denying Valley’s motions to stay and to expedite his appeal. See Valley v. Bogard, 341 Ark. 302, 20 S.W.3d 271 (2000). We further stated that our writ of certiorari to the court reporter to immediately prepare the transcript for appeal was improvidently issued, and we withdrew it because Valley had failed to make arrangements for the transcript or to pay the court reporter’s fee. Id. On May 15, 2000, we issued a per curiam opinion, denying Valley’s motion for reconsideration. See Valley v. Bogard, 341 Ark. 305, 20 S.W.3d 272 (2000). On July 24, 2000, the trial court issued an order in which it granted an extension of time for the court reporter to prepare the transcript. On September 22, 2000, we issued a per curiam opinion in which we granted Valley’s motion to expedite this appeal and issued a new writ of certiorari to the court reporter to complete the transcript for appeal.

I. Subject-Matter Jurisdiction

Valley first contends that the trial court never acquired jurisdiction over this matter because this “election contest” should have been brought within twenty (20) days of the filing deadline under Ark. Code Ann. § 7-5-801 (d) (Repl. 2000). Valley argues that Willis did not file this action until twenty-two (22) days following the certification complained of and, thus, it was untimely.

Valley’s argument is without merit. The statute that Valley cites and relies on, § 7-5-801 (d), provides a right of action to contest the certification of the nomination or the certificate of vote after the election.. The twenty-day period, however, is not applicable to an action brought before a primary election to determine the eligibility of a candidate. Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000). Specifically, the certification discussed in the statute refers to the certification of a candidate following the primary election as a nominee to the general election, not the certification of the qualifications of a candidate before the primary election. Id.

Under this point, Valley also contends that the voters of District 99 have the right to choose their representative and that this court in election cases has always ruled in favor of the candidate who received the greatest number of votes. Neither argument is meritorious. Both the Arkansas Constitution and the Election Code provide that a candidate must be eligible in order to be on the ballot and to be elected. Ark. Const, art. 5, § 4; Ark. Code Ann. § 7-5-207(b) (Repl. 2000). Eligibility is the gravamen of this appeal and the essential issue to be decided by this court. We further note on this point that under the May 4, 2000 order of the trial court, the votes cast for Valley were not to be counted, leaving the matter of who prevailed in the primary election an open question. In short, whether Valley received the greater number of votes is unknown to this court.

Finally, Valley urges that under Ark. Code Ann. § 7-5-805 (Repl. 2000), the State Claims Commission and not the trial court had jurisdiction to hear this matter. That is not correct. As was the case with respect to § 7-5-801 (d), § 7-5-805 applies to post- election contests, which is not the issue to be decided. We have held that the appropriate procedure for contesting the eligibility of a candidate and removing that candidate from the ballot before election is a mandamus action in conjunction with an action for declaratory judgment. Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000); State v. Craighead County Board of Elect. Comm’ers, 300 Ark. 405, 779 S.W.2d 169 (1989). We hold that the trial court had jurisdiction to hear this matter.

II. Service of Process

Valley next argues that he was not properly served with Willis’s complaint and summons in this matter. Thus, he contends that the trial court lacked jurisdiction over him. We disagree. At the hearing on May 3, 2000, Blake Travis, an authorized process server, testified that he went to Valley’s house to serve him with process, saw Valley’s truck in his driveway, knocked on his door, received no answer, went to a side window, saw Valley inside, made eye contact with him, announced that he had papers for Valley, saw Valley fall to his knees and crawl to the back of the house, and stuck the process papers through the front door. Travis also testified that he served Valley a second time in person at the Phillips County Courthouse on May 3, 2000. The trial court held that Valley refused service on April 28, 2000, and that service was complete on that date and again on May 3, 2000.

Valley contradicted this testimony and testified that he did not attempt to avoid service of process. His basic argument on appeal is that the April 28, 2000 service was not proper because it was not served on him personally and that the May 3, 2000 service was not proper because under Ark. R. Civ. P. 78(d), he was entitled to at least two days’ notice before the hearing on mandamus. He further argues that the summons served on him on May 3, 2000, required an answer within twenty days as opposed to his participation in an ongoing mandamus hearing.

Ark. R. Civ. P. 4(d)(1) provides that service can be had on an individual “by delivering a copy of the summons and complaint to him personally, or if he refuses to receive it, by offering a copy thereof to him....” See Green v. Mills, 339 Ark. 200, 4 S.W.3d 493 (1999); Riggin v. Dierdorff, 302 Ark. 517, 790 S.W.2d 897 (1990) (held party was properly served when party refused to accept personal service from process server and process server then left complaint and summons on party’s property). The trial court clearly believed the testimony of Blake Travis over that of Valley and concluded that Valley had refused service. It is up to the trial court to determine the credibility of the witnesses. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000); Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). Announcing his purpose and then leaving the papers at Valley’s house after refusal of service, as the process server did in this case on April 28, 2000, complies with Ark. R. Civ. P. 4(d)(1). We hold that service of process made on Valley on April 28, 2000, was valid, and we affirm the trial court on this point.

III. Proper Venue

For his third point, Valley claims that the trial court erred in denying his motion for change of venue. Pie asserts that according to Ark. Code Ann. § 7-5-801 (b) (Repl. 2000), venue for circuit or district offices lies within “any county in the circuit or district wherein any of the wrongful acts occurred....” Accordingly, Valley maintains that venue in Phillips County was proper and that Pulaski County “is in no way connected with State Representative District 99.” Again, Valley’s argument in rebanee on § 7-5-801 (b) must fail. As already held in this opinion, that section sets out the procedure pertaining to election contests after the election, which is not the situation before this court.

The original action filed by Willis was an action for declaratory judgment and for a writ of mandamus. In an action for declaratory judgment, “all persons shall be made parties who have or claim any interest which would be affected by the declaration....” Ark. Code Ann. § 16 — 111—106(a) (1987). In this case, the persons to be affected by the decision include the State Board of Election Commissioners and the Secretary of State Sharon Priest. It is the State Board of Election Commissioners that has the primary responsibility for conducting political primaries in this state. Ark. Code Ann. § 7-7-201 (Repl. 2000). Further, after the election, the Secretary of State certifies to the county boards of election commissioners the full list of all candidates to appear on the ballot for the general election. Ark. Code Ann. §§ 7-5-203(a), 7-7-401 (Repl. 2000); see also Willis v. Circuit Court of Phillips County, 342 Ark. 128, 27 S.W.3d 372 (2000) (per curiam). It is. clear that these state officials have an interest which would be affected by any declaratory judgment under Ark. Code Ann. § 16-111-106 (a). It is further clear that these state officials are indispensable parties under Ark. R. Civ. P. 19(a) for the relief requested. All actions against state officers which bring into play their official acts must be brought in Pulaski County. Ark. Code Ann. § 16-60-103 (3). Venue in this matter was proper in Pulaski County.

IV Evidence of Ineligibility

For his final point, Valley urges that the evidence of his ineligibility was insufficient at best. He correctly asserts that Willis had the burden of proving that he did not reside in District 99 for a period of one year prior to the general election. Nonetheless, we conclude that Willis met that burden with substantial evidence.

In support of his position, Willis presented the following evidence and testimony. Linda White, County Clerk of Phillips County, stated that Valley first registered as a voter in Phillips County in 1987. At that time, he listed his address as 211 S. Coranza St., West Helena, which is located1 in District 99. On March 31, 1998, Valley changed his voting address to 909 Poplar St., Helena, which is located in District 98. Valley’s voting record indicates that he voted as a resident at this address on March 7, 2000, as well as in the school election the previous September.

Valley, however, argues that he changed his voting address on March 20, 1999, to 338 North Baringo, West Helena, which is in District 99 by completing a form and filing it on that date. According to Linda White, however, this change of address was not entered into the county clerk’s computer system until March 22, 2000. The clerk stated that she did not know when the address change was received by her office because it was not file marked. Moreover, the trial court noted in its order that it was “unclear” on how Valley could have completed the form in March 1999 in light of the fact that the form was not put into circulation by the Secretary of State’s office until May 1999.

Willis presented other testimony of Valley’s residence and when he changed his address to 338 North Baringo, West Helena, in District 99. Russ Hodges, general manager of the TV cable company, Cox Communications, told the court that the company provided service to Elizabeth Valley, Valley’s wife, at 909 Poplar Street until it was transferred to 338 North Baringo Street on April 14, 2000. Kathryn Ann Thomas, a billing clerk at the Helena Water Company, testified that she stopped service to Valley at 909 Poplar Street on April 25, 2000. Jacquelyn Clayton, a bookkeeper at West Helena Water Utilities, testified that a water deposit had been paid by Valley for 338 North Baringo Street on April 3, 2000. Clayton also testified that she lives across the street from 338 North Baringo Street, that construction of the house at that address was not completed until late 1999, and that the first time anyone lived in the new house was in April 2000. That person was Valley.

Valley argues that the exhibits offered by Willis were not properly before the trial court for various reasons. He asserts that some exhibits were not properly offered into evidence while others violated the hearsay rule and still others should not have been admitted due to failure to establish a proper foundation. He further urges that Willis attempted to prove Valley’s physical residence by using utility hook-up information, but that Willis put forth no direct evidence of Valley’s physical residence. For example, he argues that Willis offered no deeds showing the ownership of the land on any of the residences in question.

Finally, Valley contends that Article 5, § 4, of the Arkansas Constitution requires that the candidate five in the “county or district” for one year prior to the election. He claims that the rules of statutory construction require that this section be given its plain and ordinary meaning, and he contends that he has lived in Phillips County for all of the relevant time period. Therefore, he argues that the court should interpret this section of the constitution to require only that he live in either the county or the district, and because he lived in the county, he met the constitutional requirements.

The Arkansas Constitution requires that no person shall be a state representative who has not, at the time of his election, been a “resident” of the district where he may be elected for one year. Ark. Const, art. 5, § 4; see also Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998); Brewster v. Johnson, 260 Ark. 450, 541 S.W.2d 306 (1976). We discussed this section of the constitution in Jenkins v. Bogard, supra, and said:

The focus here is on the word “resided.” In Charisse v. Eldred, 252 Ark. 101, 102-03, 477 S.W.2d 480, 480 (1972), we said that, “[i]n determining qualifications of voters and public officials, the word ‘residence’ has usually been treated as if it were synonymous with ‘domicile’ and dependent to some extent upon the intention of the person involved.” “The determination of residence is a question of intention, to be ascertained not only by the statements of the person involved, but also from his conduct concerning the matter of residence.” Phillips v. Melton, 222 Ark. 162, 164, 247 S.W.2d 931, 932 (1953).

335 Ark. at 340, 341, 980 S.W.2d at 274.

In the case at hand, the date of the general election when Valley could have been elected state representative is November 7, 2000. Therefore, to be eligible under the constitutional requirements, he would have had to five in District 99 since November 7, 1999. In reviewing findings of nonresidency under Article 5, § 4, we must affirm if there is substantial evidence to support the finding. Brewster v. Johnson, supra. Here, the testimony with supporting documents from the county clerk and the testimony with documentation from the cable television manager as well as representatives from two water utilities are probative of Valley’s residence. There was also the testimony of Mrs. Clayton who lived across the street from the North Baringo address and who testified about when the new house was occupied. The evidence presented at trial is more than substantial to establish Valley’s conduct and the fact that he did not move to District 99 until April, 2000.

This court’s holding in Jenkins is controlling here. In Jenkins, we held that the fact the candidate did not actually move into the district until the spring immediately prior to the fall election rendered him ineligible for office under one-year state constitutional residency requirement. Jenkins v. Bogard, 335 Ark. at 341, 980 S.W.2d at 274. The same holds true in the instant case. Valley was not eligible to run for state representative for District 99 due to his failure to move into that district until April 2000. The trial court did not err in its finding on this point. Further, we are convinced that Article 5, § 4, of the Arkansas Constitution requires that Valley reside in the legislative district for one year, not merely in the county.

The mandate in this case shall issue immediately.

Affirmed.


author: Annabelle Clinton Imber, Justice.

text:
    Oscar STILLEY v. Harold E. HENSON; Doris Tate, In Her Official Capacity as County Clerk of Sebastian County, Arkansas; and Tom Johnson, Richard Griffin, and David Harp, In Their Official Capacities as County Election Commissioners of Sebastian County, Arkansas
    00-1060
    28 S.W.3d 274
    Supreme Court of Arkansas
    Opinion delivered October 12, 2000

      Appellant, pro se.

      Friday, Eldredge & Clark, by: R. Christopher Lawson, for appellee Harold E. Henson.
   Annabelle Clinton Imber, Justice.

The appellant, Oscar Stilley, requests that we reverse the Sebastian County Circuit Court’s order striking from the November 7, 2000 general election ballot in Sebastian County, Arkansas, a proposed ordinance reducing the percentage rate of an existing county sales and use tax. We decline to do so and hold that the initiative petition is facially invalid and fails to comply with Amendment 7 to the Arkansas Constitution because it is contrary to the specific enactment procedures mandated by Ark. Code Ann. §§ 26-74-201 et seq. (Repl. 1997 and Supp. 1999) for levying or repealing a countywide sales and use tax. We affirm the circuit court’s order of mandamus.

The ordinance in question was initiated pursuant to Amendment 7 to the Arkansas Constitution and submitted by Mr. Stilley to the Sebastian County Clerk on August 7, 2000. The initiative petition bore the popular name “an initiated ordinance to reduce the Sebastian County countywide one per cent (1%) sales and use tax to one-half of one percent (1/2%).” The Sebastian County Clerk certified the sufficiency of the initiative petition on August 18, 2000, for placement on the November 7, 2000 general election ballot. Immediately thereafter, on August 31, 2000, a petition for a writ of mandamus was filed by appellee, Harold Henson, challenging the legal validity of the initiative petition. He sought an order of mandamus from the Sebastian County Circuit Court to prevent the county clerk and the Sebastian County Election Commissioners from placing the initiative petition on the ballot. Mr. Stilley, as the sponsor of the initiative petition, intervened in the matter on September 5, 2000. In his response to the petition for a writ of mandamus, Mr. Stilley challenged the circuit court’s jurisdiction and requested that the petition be denied. Following a hearing, the circuit court issued an order of mandamus on September 11, 2000.

In granting the mandamus, the circuit court concluded that the initiative petition was invalid on its face and ordered the county clerk and the county election commissioners not to place the initiative petition on the ballot. Specifically, the circuit court found that the state statutes authorizing counties to levy or repeal a countywide sales and use tax, Ark. Code Ann. §§ 26-74-201 et seq., provide a procedure for voters to either adopt the tax or abolish the tax, but do not provide a procedure for voters to reduce the rate of an existing tax. Because the initiative petition proposed an ordinance to reduce the rate of an existing tax, the circuit court found the initiative petition to be contrary to the authorizing legislation, thereby rendering the initiative invalid under Amendment 7 to the Arkansas Constitution, which provides that no local legislation shall be enacted contrary to any general law of the state.

Mr. Stilley brings an expedited appeal of the circuit court’s order of mandamus to this court. For his only point on appeal, Mr. Stilley argues that “[t]he trial court erred in ruling that the grant of an express power to counties to impose sales taxes, upon voter approval, did not by implication grant the power to reduce those taxes, in increments authorized by statute.” We have jurisdiction pursuant to Arkansas Supreme Court Rule l-2(a)(3) and (4) (2000).

I. Circuit Court Jurisdiction

Mr. Stilley initially challenges the circuit court’s jurisdiction to review this pre-election challenge to the legal validity of the proposed ordinance. Arkansas Code Annotated, section 16-115-102 (1987), provides that: “The circuit and chancery court shall have power to hear and determine petitions for the writ of mandamus and prohibition and to issue such writs to all inferior courts, tribunals, and officers in their respective jurisdictions.” Since the enactment of that statute in 1939, however, this court has held that the provision of the statute providing for chancery court jurisdiction over petitions for writs of mandamus violates the Arkansas Constitution. Nethercutt v. Pulaski County Special School Dist., 248 Ark. 143, 450 S.W.2d 777 (1970). “It follows, therefore, that jurisdiction of writs of mandamus being traditionally common law writs, is restricted to and vested solely in our circuit or law courts.” Id., 248 Ark. at 147, 450 S.W.2d at 779. Additionally, when the legal validity of an initiative petition is at issue, jurisdiction is in circuit court. Mertz v. States, 318 Ark. 390, 885 S.W.2d 853 (1994). On the other hand, when the challenge goes to the county clerk’s determination of the sufficiency of the petition, such as a challenge to the signatures, jurisdiction is in chancery court. Mertz v. States,supra; Dean v. Williams, 339 Ark. 439, 6 S.W.3d 89(1999); Moorman v. Lynch, 310 Ark. 525, 837 S.W.2d 886 (1992).

The only substantive allegation in Mr. Henson’s petition for a writ of mandamus is that the initiated petition is facially invalid because it is directly contrary to the state statutes authorizing the levy and collection of a county sales and use tax. Thus, this case involves a challenge to the legal validity of an initiative petition. Moreover, the county clerk’s determination of the sufficiency of the petition has not been challenged here. Accordingly, we conclude that the circuit court had jurisdiction in this case.

II. Justiciability

Before we can reach the merits of Mr. StiUey’s point on appeal, we must first determine whether this pre-election challenge to the validity of the proposed ordinance presents an issue that is ripe for adjudication. In Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992), we declined to decide a constitutional challenge to a proposed constitutional amendment before the election had occurred on the ground that this court cannot issue advisory opinions. We distinguished our earlier holding in Czeck v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984), that the legal validity of a proposed measure may be considered and decided even before the election, by noting that the proposed measure in Czech v. Baer was “clearly contrary to law and should not have been submitted to the electorate,” whereas the proposed measure in Plugge v. McCuen was not so clear. Plugge v. McCuen, 310 Ark. at 660, 841 S.W.2d at 142. More recently, in Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996), we clarified our precedent on the issue of whether we will entertain a challenge to the legal validity of such measures prior to an election. We stated:

It has been said that the pertinent issue in cases such as this one ‘is not the hypothetical question of whether the law, if passed, would be constitutionally defective; rather, it is the present and ripe question whether the measure’s proponents are entitled to invoke the direct legislation process at all.’

Id., 326 Ark. at 359, 931 S.W.2d at 121. Thus, we held that we could review the question of whether a measure’s proponents are entitled to invoke the direct initiative process in the first place.

That is precisely the issue currently before us. Amendment 7 to the Arkansas Constitution provides that “no local legislation shall be enacted contrary to the Constitution or any general law of the State.” (Emphasis added.) If local legislation such as the proposed ordinance at issue here is to be enacted at all pursuant to Amendment 7, it must be enacted in accordance with the procedures set forth in the authorizing legislation. Specific procedures are mandated by Ark. Code Ann. §§ 26-74-201 et seq. for levying a county sales and use tax and for repealing a county sales and use tax that has been previously levied. The crux of the circuit court’s ruling was that the initiated petition circumvented the enactment procedures expressly authorized by Ark. Code Ann. §§ 26-74-201 et seq. Consequently, the issue here is whether the measures proponents are entitled to invoke the direct initiative process. This case is therefore justiciable pursuant to the rules laid down in Donovan v. Priest, supra.

III. Legal Validity of Initiative Petition

Through the initiative process, the voters of Sebastian County may exercise the powers reserved to them under Amendment 7 to propose and enact local legislation in and for the county. As previously stated, however, the legislative power reserved to the people by Amendment 7 is limited in that no local legislation may be enacted contrary to the Constitution or any general law of the state. Ark. Const, amend. 7. The circuit court found that Mr. Stilley’s initiative petition was contrary to the authorizing legislation, Ark. Code Ann. §§ 26-74-201 et seq., and therefore the proposed ordinance’s advocates were not entitled to invoke the direct initiative process. We agree.

It is undisputed that the one percent (1%) sales and use tax at issue here was levied pursuant to the provisions of Ark. Code Ann. §§ 26-74-201 et seq., which mándate specific procedures for levying a county sales and use tax and for repealing a tax that has been previously levied. Section 26-74-207(a), in relevant part, provides:

(a) The county quorum courts may call an election for the levy of a countywide sales and use tax in the amount of one-fourth of one percent (.25%), one-half of one percent (0.5%), three-fourths of one percent (.75%), or one percent (1%).

Section 26-74-208 (a) provides:

(a) The ballot title to be used shall be substantially in the following form:
[ ] “FOR adoption of a .... percent (...%) sales and use tax within.......................................................... (Name of county).”
[ ] “AGAINST adoption of a .... percent (...%) sales and use tax within .......................................................... (Name of county).”

Section 26-74-210, in relevant part, provides:

(a)(1) When the question of the levy or repeal of a county sales and use tax is submitted to the electors and the proposition is approved or defeated, the question shall not again be submitted to the electors by ordinance of the quorum court of the county or by petition of electors at a special or general election for a period of six (6) months from the date the proposition was last voted upon.
***
(b) The ballot title for use in an election on the question of abolishing the county sales and use tax shall be the same as indicated in § 26-74-208, except that the word “ABOLISH” shall be substituted for the word “ADOPTION.”

Thus, the voters can adopt a tax at one of four rates specified by statute, and, if they later decide to do so, the voters can totally abolish the tax. However, the General Assembly has not expressly authorized counties to reduce the rate of an existing sales and use tax. The circuit court concluded that neither the Sebastian County Quorum Court nor the voters of Sebastian County, through the initiative process, have statutory authority to reduce the rate of the county sales and use tax previously levied pursuant to Ark. Code Ann. §§ 26-74-201 et seq.

Mr. Stilley disputes the circuit court’s findings on two grounds. First, he argues that the General Assembly’s grant of power to the counties to levy or repeal the tax necessarily implies the power to reduce the rate of the tax. In making this argument, Mr Stilley relies upon the following language in Ark. Code Ann. § 26-74-210 (c):

Notwithstanding anything in this subchapter to the contrary, in any county in which a local sales and use tax has been adopted in the manner provided for in this subchapter and all or any portion pledged to secure lease rentals or the payment of bonds as authorized by this subchapter, that portion of the tax pledged to lease rentals or bonds shall not be repealed, abolished, or reduced so long as the lease is effective or any of such bonds are outstanding.

Ark. Code Ann. § 26-74-210(c) (emphasis added). Mr. Stilley suggests that the General Assembly’s use of the word “reduced” in section 26-74-210(c) necessarily implies the possibility of a reduction in the rate of a previously levied tax. We disagree. The plain language of that provision does not indicate that the overall rate of the tax may be reduced; rather, it provides that the “portion of the tax pledged to lease rentals or bonds” shall not be reduced. Furthermore, this language was contained in Act 723 of 1983, which amended Ark. Code Ann. §§ 26-74-201 et seq., to authorize the issuance of bonds secured by tax revenues so that counties could obtain funds for capital improvements. Act 723 did not amend the provisions of Ark. Code Ann. §§ 26-74-201 et seq. that authorize specific procedures for adopting or abolishing a tax. For these reasons, we conclude that Mr. Stilley’s argument concerning the use of the word “reduced” in section 26-74-210(c) is without merit.

Mr. Stilley also relies on the case of City of Ward v. Ward Water & Sewer System, 280 Ark. 177, 655 S.W.2d 454 (1983), for the proposition that the power to levy the tax would imply the power to reduce the rate of the tax. Mr. Stilley’s reliance on that case, however, is misplaced. In City of Ward, we stated that “[i]t is a firm rule that the power to make legislation includes the power to repeal.” Id., 280 Ark. at 179, 655 S.W.2d at 456. We said nothing in that case about the power of a municipal corporation to reduce the rate of a tax previously levied. Furthermore, the single issue presented in City of Ward was whether the city council, having adopted an ordinance creating a water and sewer commission, had the power to completely abolish the commission.

A county is a municipal corporation. City of Hot Springs v. Gray, 215 Ark. 243, 219 S.W.2d 930 (1949). Municipal corporations are creatures of the legislature and as such have only the power bestowed upon them by statute or the Arkansas Constitution. Jones v. American Home Life Ins. Co., 293 Ark. 330, 738 S.W.2d 387 (1987). It is well settled that municipal corporations have no inherent powers and can exercise only (1) those expressly given to them by state statute or the Arkansas Constitution, (2) those necessarily implied for the purposes of, or incident to, the express powers, and (3) those indispensable, not merely convenient, to their objects and purposes. Cosgrove v. City of West Memphis, 321 Ark. 324, 938 S.W.2d 827 (1997). Finally, any substantial doubt about the existence of a power in a municipal corporation must be resolved against it. Id.; City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982); Town of Dyess v. Williams, 247 Ark. 155, 444 S.W.2d 701 (1969). Here, there is substantial doubt about whether the county and its voters have been given the authority to reduce the rate of an existing county sales and use tax. It is not clear that such a power is necessarily implied from the express power to adopt or abolish the tax authorized by Ark. Code Ann. §§ 26-74-207, 208, and 210; nor is it clear that such a power is indispensable. Accordingly, we conclude that the General Assembly has not expressly or by implication authorized Sebastian County and its voters to reduce the rate of an existing county sales and use tax.

For his second ground, Mr. Stilley contends that “if the power [to reduce the rate of the tax] is not implied, the statutory grant of power to counties to levy sales taxes is unconstitutional in that it requires, in certain circumstances, the collection of taxes in excess of that required for the ‘existence, maintenance and well being’ of the county” in violation of Article 2, section 23, of the Arkansas Constitution. Article 2, section 23, of the Arkansas Constitution provides, in part, that “the General Assembly may delegate the taxing power, with the necessary restrictions, to the State’s subordinate political and municipal corporations to the extent of providing for their existence, maintenance and well being, but no further.” (Emphasis added.) Mr. Stilley argues that if a reduction in the rate of the tax is prohibited, then the tax would continue even if the rate was in excess of that needed for the county’s existence, maintenance, and well-being. We disagree. If the voters determine that the tax was levied at a rate in excess of that needed for the existence, maintenance and well-being of the county, they may vote to abolish the tax. Likewise, if the voters subsequently decide to adopt another tax at a lesser rate, they are free to do so. In either instance, however, they are limited to the enactment procedures authorized by Ark. Code Ann. §§ 26-74-201 et seq. Those procedures are fully consistent with Article 2, section 23, of the Arkansas Constitution.

For these reasons, we hold that Mr. Stilley’s initiative petition is facially invalid and fails to comply with Amendment 7 because it is contrary to Ark. Code Ann. §§ 26-74-201 et seq., which grants counties and their voters the authority to adopt or abolish a county sales and use tax, but does not grant them the authority to reduce the rate of an existing tax.

Affirmed, the mandate to issue immediately.

       Although Mr. Henson requested, in part, that the circuit court “[command] the County Clerk to decertify the sufficiency of the Initiative Petition,” none of his substantive allegations go to the petition’s sufficiency.

       The emergency clause in Act 723 of 1983 provided: “It has been found and is hereby declared by the General Assembly of the State of Arkansas that certain counties within the State are in dire need for additional capital funds to provide essential services and facilities of such counties; that the most appropriate way for such counties to provide such funds is by the levying of a sales and use tax on gross receipts derived from certain businesses within the county and the issuance of bonds payable from such tax revenues as herein authorized[.]”

       Mr. Stilley points out that a county has the power pursuant to Ark. Code Ann. §§ 26-74-201 et seq. to abolish the tax altogether and then to levy another tax later at a lesser rate, thereby creating the same result as his initiative petition by an indirect means. He therefore argues that the voters should be allowed to reach the same result directly by adopting his initiative petition. That argument in itself tends to establish that the power proposed by Mr. Stilley is not indispensible; rather, it is a matter of mere convenience.


author: Ray Thornton, Justice.

text:
    Daniel W. JOHNSON v. STATE of Arkansas
    CR 00-476
    28 S.W.3d 286
    Supreme Court of Arkansas
    Opinion delivered October 12, 2000

      William O. James and Clay T. Buchanan, for appellant.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant, Danny Johnson, was convicted of second-degree murder in the death of Michael Sammons, and sentenced to twenty years in the Arkansas Department of Correction. The sentence included a fine of $15,000.00.

He appealed to the court of appeals, contending first that the State failed to present sufficient evidence to establish the victim’s identity, and second that the trial court committed error in denying his motion to suppress his statement. The court of appeals did not reach the merits of either of these points on appeal, but held that appellant’s abstract did not comply with the provisions of Ark. Sup.Ct. R. 4-2, and affirmed the judgment and conviction because of a flagrantly deficient abstract.

Appellant petitioned this court for review of the court of appeals’s decision and argued that the decisions of the court of appeals and this court appear to be inconsistent interpretations of our court rules. We granted review for the limited determination of whether appellant’s conviction was properly affirmed for noncompliance with Ark. Sup. Ct. R. 4-2. See Johnson v. State, 341 Ark. 523, 17 S.W.3d 499 (2000)(per curiam). Appellant argues that his abstract is not flagrantly deficient, and that the court of appeals erred in affirming his case on appeal on that basis. We agree that appellant’s abstract was not flagrantly deficient, reverse on that point, and return the case to the court of appeals for further consideration on the merits.

In reaching its conclusion that the case must be affirmed because of a flagrantly deficient abstract, the court of appeals found that “due to numerous errors in appellant’s abstract, we are precluded from addressing his arguments on appeal and we affirm for noncompliance with Arkansas Supreme Court Rule 4-2” and cited five deficiencies. These deficiencies were that appellant: (1) failed to abstract his notice of appeal; (2) abstracted unnecessary documents; (3) failed to abstract the trial courts ruling on his motion to suppress; (4) failed to provide a copy of his videotaped confession or to abstract the substance of the confession; and (5) failed to double space portions of his abstract.

Arkansas Supreme Court Rule 4-2 in relevant part states:

(6) Abstract. The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision. A document included in the Addendum pursuant to Rule 4-2(a)(8) should not be abstracted. A document, such as a will or contract, may be photocopied and attached as an exhibit to the abstract. However, the document or the necessary portions of the document must be abstracted. Mere notation such as “plaintiffs exhibit no. 4” is not sufficient. On a second or subsequent appeal, the abstract shall include a condensation of all pertinent portions of the record filed on any prior appeal. Not more than two pages of the record shall in any instance be abstracted without a page reference to the record. In the abstracting of testimony, the first person (i.e., “I”) rather than the third person (i.e., “He, She”) shall be used. The Clerk will refuse to accept a brief if the testimony is not abstracted in the first person or if the abstract does not contain the required references to the record. In the abstracting of depositions taken on interrogatories, requests for admissions, and the responses thereto, and interrogatories to parties and the responses thereto, the abstract of each answer must immediately follow the abstract of the question. Whenever a map, plat, photograph, or other similar exhibit, which cannot be abstracted in words, must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by photography or other process and attach it to the copies of the abstract filed in the Court and served upon the opposing counsel, unless this requirement is shown to be impracticable and is waived by the Court upon motion.
* * *
(3) Whether or not the appellee has called attention to deficiencies in the appellant’s abstract, the Court may treat the question when the case is submitted on its merits. If the Court finds the abstract to be flagrantly deficient, or to cause an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. If the Court considers that action to be unduly harsh, the appellant’s attorney may be allowed time to revise the brief, at his or her own expense, to conform to Rule 4-2(a)(6). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct.

Ark. Sup. Ct. R. 4-2. We have often held that a summary of the pleadings and the judgment appealed from are the bare essentials of an abstract. King v. State, 325 Ark. 313, 925 S.W.2d 159 (1996). This court does not presume error simply because an appeal is made. Id. It is the appellant’s burden to produce a record sufficient to demonstrate error, and the record on appeal is confined to that, which is abstracted. Id. We have noted that with only one record on appeal and seven justices, it is essential that the material parts of the record be abstracted. Davis v. State, 325 Ark. 36, 924 S.W.2d 953 (1996). We have also noted that when an abstract is so deficient that we cannot discern what happened in the trial court, we must affirm. Id. Additionally, we have said that as long as we can determine from a reading of the briefs and appendices material parts necessary for an understanding of the questions at issue, we will render a decision on the merits. Carmical v. City of Beebe, 316 Ark. 208, 871 S.W.2d 386 (1994).

To determine whether the court of appeals erred in holding that appellant’s abstract is flagrantly deficient, it is necessary to review the deficiencies as articulated by the court of appeals. First, the court of appeals found that appellant failed to abstract the trial court’s ruling on his motion to suppress. Appellant’s abstract states, “The court informs counsel the motion to suppress the statement has been denied.” Looking to the exact ruling by the trial court in the record it is clear that appellant properly abstracted this ruling. Specifically, the record states: “The court: Let the record reflect that the pending motion for suppression filed on behalf of the defendant has been denied.” Additionally, appellant’s abstract provided enough information for appellate review of the issue. We conclude that the court of appeals erred in finding that appellant’s abstract was deficient on this issue.

Next, the court of appeals determined that appellant failed to provide a copy of his videotaped confession or to abstract the substance of the confession. The court of appeals’s finding on this point is erroneous. Appellant’s abstract did include a transcript of the videotaped confession which was detailed enough to allow a reviewing court to consider suppression issues on appeal. Because the videotape is transcribed in appellant’s abstract, the court of appeals’s finding that appellant’s abstract was deficient on this point was in error.

The court of appeals also held that appellant’s abstract was deficient because it included excessive information relating to “the sentencing proceedings, which were irrelevant in this case, as he alleged no sentencing error below or on appeal.” In Kirk v. State, 270 Ark. 983, 606 S.W.2d 755 (1980), a case decided under the previous Supreme Court Rule on abstracting, we discussed the issue of including excessive information in an abstract. We held:

Rulé 9(d) of the Rules of Supreme Court requires that appellant abstract only such material parts of the record as are necessary for this court to fully understand the questions presented. In the present case, as the issues on appeal involved only a portion of the voir dire proceedings, it was wholly unnecessary for appellant to utilize over forty pages of his brief to abstract the testimony presented at trial. Stricter compliance with Rule 9(d) would result in a more efficient use of counsel’s time and energy, as well as those of this court.

Id. However, in Kirk, we concluded that although the appellant included excessive material in his abstract, w¿ did not find the abstract deficient and we reviewed the case on its merits. Id.

Turning to the case now on review, we note that appellant’s abstract is forty-eight pages, and the entire record in this case is 685 pages. The “irrelevant information” to which the court of appeals refers consists of four-and-one-half pages of abstracted testimony presented to the jury during the sentencing-phases of the trial. We do not find the inclusion of four and one-half extra pages in a forty-eight-page abstract to be so excessive as to render the abstract flagrantly deficient. We do observe, as we did in Kirk, that stricter compliance with Ark. Sup. Ct. R. 4-2 (a) (5) would have resulted in a more efficient use of counsel’s time and energy, as well as that of this court.

The court of appeals found that appellant’s abstract was flagrantly deficient because he single-spaced the portion of his abstract which contains the trial proceedings and the pretrial hearing on the motion to suppress in violation of Ark. Sup. Ct. R. 4-1. Rule 4-1 (a) states in relevant part that “briefs shall be double-spaced, except for quoted material, which may be single-spaced and indented.” Id. Rule 4-1 also states that “briefs not in compliance with this rule shall not be accepted by the clerk.” Ark. Sup. Ct. R. 4-1 (d). We conclude that because a significant portion of appellant’s abstract was single-spaced it did not comply with Rule 4-1 (a). However, we note that the proper remedy for failure to comply with Rule 4-1, as provided by that rule, was for our clerk to refuse to accept the tendering of appellant’s brief when it was presented to the clerk of the court’s office. Our clerk improperly allowed the single-spaced brief to be filed in violation of Rule 4-1, and we do not hold that this mistake resulting from our clerk’s failure to enforce the rule should be treated as a flagrant deficiency.

Next, the court of appeals concluded that appellant’s abstract was deficient because it did not include a notice of appeal. Because we have determined that appellant’s abstract was not insufficient in other areas, the omission of the notice of appeal is the only remaining deficiency in appellant’s abstract.

The clerk of the court has the responsibility of determining whether an appeal is timely filed and usually makes that determination by reviewing the notice of appeal in the record. We note that in this case a timely notice of appeal was included in the record. However, the notice of appeal was not abstracted. The issue is presented whether the failure to abstract the notice of appeal, standing alone, is a sufficient omission to render the abstract flagrantly deficient. We have held in a prior criminal case that an abstract which failed to include a notice of appeal was flagrantly deficient. In Mayo v. State, 324 Ark. 328, 920 S.W.2d 843 (1996), we were asked to review an appellate brief, which omitted the notice of appeal, as well as other critical portions of the record from the abstract. We wrote:

[T]his abstract sinks to the level of being flagrandy deficient in that it does not contain those documents which are the bare essentials of an abstract, such as the information, the judgment and commitment order, and the notice of appeal. Particularly, as to the Batson issue, the abstract does not provide the final composition of the jury which heard the case, the number of white persons who sat on the jury, the total number of white persons in the jury venire, or the total number of peremptory strikes exercised by the appellant. Furthermore, the abstract does not provide the relevant colloquy between appellant’s counsel and each of the aforementioned jurors during the voir dire proceeding, nor does it even state for certain that the appellant is not white — we are only to assume that fact. Moreover, it is only from the supplemental abstract provided in appellee’s brief that we are informed the trial court reimbursed appellant with three additional peremptory strikes to make up for the three jurors the court had seated over his objection. Due to appellant’s failure to include this necessary information in his abstract, we are unable to determine whether the trial court erred in seating the three white jurors over the appellant’s objection.

Id.

We note that the notice of appeal must be abstracted in a civil case because it allows the appellate court to determine whether jurisdiction is proper. However, in criminal cases the timeliness of a notice of appeal is not as essential because under well-established precedents a belated appeal may be granted where there has been a failure to file a timely appeal. We have adopted a procedure in criminal appeals that permits an attorney, who accepts fault, to file a belated appeal. See Harkness v. State, 264 Ark. 561 (1978). For that reason, the relevancy or materiality of a timely notice of appeal in criminal appeals is less vital. Accordingly, we overrule the language in Mayo, supra, that suggests that the inclusion of a notice of appeal in the abstract of a criminal appeal is essential. We hold that the omission of appellant’s notice of appeal, in the circumstances of this case, does not require this abstract to be rejected as flagrantly deficient.

Because we conclude that appellant’s abstract was not flagrantly deficient, we reverse the decision on that issue and return this case to the court of appeals for further disposition.


author: Lavenski R. Smith, Justice. Robert L. Brown, Justice,

text:
    Eddie Eugene THOMPSON v. STATE of Arkansas
    CR 00-562
    28 S.W.3d 290
    Supreme Court of Arkansas
    Opinion delivered October 12, 2000

      R. Paul Hughes, III, for appellant.

      Mark Pryor, Att’y Gen., by: Valerie L. Kelly, Ass’t Att’y Gen., for appellee.
   Lavenski R. Smith, Justice.

Eddie Eugene Thompson appeals the revocation of his suspended sentences by the Sebastian County Circuit Court. Thompson argues that the trial court based its decision on insufficient evidence. Thompson unsuccessfully appealed his revocation to the court of appeals. The appellate court held that his failure to make a directed-verdict motion at the close bf the State’s evidence pursuant to Rule 33.1 of the Arkansas Rules of Criminal Procedure caused his insufficiency of the evidence argument not to be preserved. On Thompson’s petition, we granted review because the case involves a first-impression interpretation of a recently modified court rule.1 Thompson contends that Rule 33. is inapplicable because a revocation hearing is neither a jury trial nor a nonjury trial. We disagree and affirm.

Facts

On April 17, 1992, Thompson pled nolo contendere to robbery and burglary charges. The court sentenced him to ten years in the Arkansas Department of Correction with nine years suspended. It also ordered him to pay $2,476 in restitution at a rate of $75 per month starting ninety days after release from prison. The sentencing court also specifically prohibited Thompson from possessing any controlled substances. On November 5, 1993, the State filed the original petition to revoke the suspended sentence because Thompson had failed to pay restitution. This petition was amended on January 19, 1994, and March 22, 1994, to include allegations that Thompson had possessed cocaine with intent to deliver and that he had delivered a counterfeit substance along with other violations. In concurrence with these additional revocation allegations, Thompson was prosecuted on the possession charge, and he pled nolo contendere on April 13, 1994, to that charge, and was sentenced to ten years in ADC with five-and-one-half years suspended. Following this disposition, the State withdrew the amended petitions to revoke on the previous charges on April 15, 1994.

On August 21, 1996, the State filed a new petition to revoke the suspended sentences in all three convictions. Again, the prosecution alleged Thompson had failed to pay restitution. On July 11, 1997, the trial court granted revocation, but withheld imposition of the order for ninety days to permit Thompson to make three restitution payments of $100 in successive months beginning on July 15, 1997. On July 26, 1998, police arrested Thompson, and charged him with possession of cocaine and driving while intoxicated. Due to these new violations, the prosecutor filed another petition to revoke on March 31, 1999, based on Thompson’s failure to pay restitution. The prosecutor amended this petition on June 16, 1999, to include the additional criminal charges as grounds for revocation.

The trial court held a hearing on the revocation petition on August 11, 1999. There, the prosecutor entered into evidence the court’s payment ledger indicating that Thompson had only paid $125 in restitution. The State also put on James Hayes, a Fort Smith police officer, who testified that he arrested Thompson on July 26, 1998, for DWI, and incident to that arrest found a packet of crack cocaine in his police cruiser after Thompson had exited the vehicle. During the hearing, Thompson’s counsel did not move for a directed verdict at either the close of the State’s or the defense’s case. The trial court found that Thompson had violated the terms and conditions of his suspended sentence and revoked the suspended sentences. The court ordered Thompson to ADC for concurrent sentences of twenty-four months each on the robbery and burglary convictions, and twenty-three months on the possession conviction.

Thompson appealed this decision to the Arkansas Court of Appeals on August 27, 1999, arguing that there was not sufficient evidence to support the revocation of his suspended sentences. The court of appeals issued its decision on May 3, 2000, finding that this issue was not preserved for appeal because Thompson failed to make a directed-verdict motion at the close of the State’s or defense’s case. The court of appeals relied on its recent decision in Miner v. State, 70 Ark. App. 142, 15S.W.3d 356 (2000), for the proposition that the directed-verdict motion is now required at the close of the State’s evidence and at the close of all evidence pursuant to Ark. R. Crim. P. 33.1 to preserve a challenge to the sufficiency of the evidence on appeal.

Following this decision, Thompson filed a Petition for Review on May 15, 2000, arguing that the court of appeals’s application of Rule 33.1 exceeded the scope of the rule. In his brief on appeal, Thompson restates that argument citing state and federal cases to the effect that a revocation hearing is different than a trial.

Standard of Review

On a Petition for Review, this court reviews the case as if the appeal had originally been filed in this court. Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999); State v. Brunson, 327 Ark. 567, 570, 940 S.W.2d 440 (1997); Mullinax v. State, 321 Ark. 41, 938 S.W.2d 801 (1997). To revoke probation or a suspended sentence, the burden is on the State to prove a violation of a condition by a preponderance of the evidence, and on appellate review the trial court’s findings will be upheld unless they are clearly against the preponderance of the evidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation. Id.

Scope and applicability of Rule 33.1

In his Petition for Review, Thompson argues that the court of appeals erred in refusing to consider his sufficiency challenge based on his failure to move for a directed verdict at the revocation hearing. Thompson contends that Rule 33.1 of the Arkansas Rules of Criminal Procedure does not apply to a revocation “hearing” because the rule by its express language only applies to jury and nonjury “trials.” Thompson asserts that since a revocation hearing is not a trial no motion for directed verdict is required.

In response, the State argues that while revocation hearings and trials to determine guilt are not equivalent criminal proceedings in all respects, they are, nonetheless, criminal proceedings to which Rule 33.1 would apply. The State takes this position noting that the trial court acts as a fact tinder in a revocation hearing just as it does in a nonjury trial; thus, for purposes of Rule 33.1, the two are equivalent. The State further argues that applying Rule 33.1 to revocation hearings is in line with the well-established rule that an objection is necessary to preserve an issue for appeal.

We find the State’s argument persuasive and hold that Rule 33.1 applies to revocation hearings. This court modified Rule 33.1 in 1999 to require a defendant to make a directed-verdict motion in both jury and nonjury trials at the specified times. See In Re Rule 33.1, 337 Ark. Appx. 621 (1999). In jury trials, the motion must be made at the conclusion of the prosecution’s case and again at the close of all of the evidence. Prior to the amendment, when tried without a jury, a defendant was not required to make a directed-verdict motion at the close of all the evidence. The rule now specifically requires the defense to make the motion at the close of all the evidence in nonjury trials as well as jury trials. This rule specifically overruled Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995), wherein this court held that

[MJotions for directed verdict are superfluous when there is a trial without a jury as the judge would only be directing his own verdict and the entire purpose of a bench trial is to have the judge, rather than a jury, ascertain the sufficiency of the evidence to convict.

Id., 322 Ark. at 317. As stated in the 1999 per curiam adopting the change in the rule, “the principal change is to require, defendant in both jury and bench trials to notify the trial court of the particular reasons why the state’s evidence is insufficient in order to preserve that issue for appeal.” In Re Rule 33.1, 337 Ark. Appx. at 621. This rationale is as apposite for revocation hearings as it is for nonjury trials. On appeal, Thompson specifically challenges the sufficiency of the evidence by pointing out what he considers inadequacies of proof. However, by not making a directed-verdict motion, he never afforded the trial court the opportunity to address the issue.

Moreover, we note that applying Rule 33.1 to revocation hearings is consistent with the scope of the rules outlined in Ark. R. Crim. P. 1.7, which states in part:

(a) These rules shall apply to all criminal proceedings commenced upon or after the effective date hereof, and all appeals.

This language is clear that the Rules of Criminal Procedure apply in “criminal proceedings,” “appeals” and “post-conviction proceedings” relating to the underlying criminal proceedings. A revocation hearing is part of the “criminal proceedings;” hence, the rules apply. However, the issue before the court is whether Rule 33.1 specifically applies.

To support his argument that a revocation hearing is not the same as a nonjury trial, Thompson cites federal and state precedents which distinguish a probation revocation from a trial. The principal distinction made by both types of authority is that in a revocation proceeding the defendant does not have a constitutional guarantee of the same panoply of rights afforded him at the trial to determine guilt or innocence. See Morrissey v. Brewer, 408 U.S. 471, 480 (1972). In essence, at a revocation hearing, less is required of the State to establish a violation of a probationary sentence than to prove the defendant’s guilt in the first instance. Lemons, supra. These distinctions, however, do not make a revocation hearing less of a trial, just one with different standards. It remains a criminal proceeding conducted under the rules for the determination of the existence of certain alleged facts —• facts, which if established, will affect the ability of the defendant to continue on probation from his sentence. We conclude that Rule 33.1 does apply to revocation hearings. Consequently, Thompson’s election not to make a directed-verdict motion at the close of all the evidence failed to preserve his sufficiency of the evidence argument. Hence, we do not reach the merits of his appeal and affirm.

Affirmed.

Brown and Imber, JJ„ dissent.

Robert L. Brown, Justice,

dissenting. A revocation hearing is not a trial. Probation, suspension, and revocation are matters that clearly fall within the bailiwick of the General Assembly as part of sentencing and disposition of offenders. See Ark. Code Ann. §§ 5-4-301 through 5-4-323 (Repl. 1997, Supp. 1999). The General Assembly treats revocation hearings as separate and apart from trials and establishes the precise procedure for these proceedings. Ark. Code Ann. § 5-4-310 (Repl. 1997). For example, § 5-4-310 sets these procedures for revocation hearings:

• a preliminary hearing to determine if there is reasonable cause for violating suspension or probation shall be held unless waived by defendant;
• a hearing shall occur in circuit court as soon as possible after arrest and reasonably near place of violation or arrest;
• defendant shall be given full notice of the preliminary hearing and alleged violation;
• defendant may offer evidence on his or her behalf;
• if reasonable cause is found, then a hearing shall take place before original sentencing court;
• original sentencing court is sent summary of the preliminary hearing;
• revocation hearing shall occur within 60 days after arrest, after full notice to defendant; and
• defendant shall have right to controvert evidence and present evidence on his or her behalf.

No where in our Rules of Criminal Procedure do we set procedures for revocation hearings. Now for the first time, this court has included such hearings within the definition of “trials.”

Todays opinion expands the requirements of Arkansas Criminal Procedure Rule 33.1 so that the term “trial” now includes revocation hearing. This means that because defense counsel did not move for a directed verdict at revocation hearing, he cannot raise insufficiency of the evidence as an issue on appeal. That is a harsh result, especially when the practicing bar has been legitimately unaware of the fact that a majority of this court believes revocation hearings to be trials. Certainly, our rules do not say that.

Revocation hearings and trials are simply two different proceedings. Black’s Law Dictionary defines “trial” as: “A formal judicial examination of evidence and determination of legal claims in an adversary proceeding.” Black’s Law Dictionary 1510 (7 ed. 1999). A revocation hearing on the other hand is a hearing held to determine whether a probation violator should have his or her probation revoked. In such hearings, a trial has already occurred and the potential violator found guilty. As this court has held, the alleged violator at the revocation hearing is not entitled “to the full range of criminal trial safeguards because the court is not dealing with a person who had yet to be convicted of anything.” Pyland v. State, 302 Ark. 444, 446, 790 S.W.2d 178, 179 (1990).

The majority clearly has confused apples and oranges. What follows is a sampling of just a few differences between trials and revocation hearings:

• Revocation hearings and trials involve different standards of proof. In a revocation hearing, the burden is on the state to prove by a preponderance of the evidence that the defendant has violated a condition of probation or suspension. Lewis v. State, 336 Ark. 469, 986 S.W.2d 95 (1999). The burden of proof in a jury trial or a non-jury trial is beyond a reasonable doubt.
• The rules of evidence do not apply to a revocation hearing as they do in a trial. Ark. Code Ann. § 5-4-310 (c)(2) (Repl. 1997); Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992).
• In a revocation hearing, the trial court may disallow cross-examination and confrontation of adverse witnesses for good cause. Ark. Code Ann. § 5-4-310(c)(l) (Repl. 1997).
• The exclusionary rule does not apply to a revocation hearing. Dabney v. State, 278 Ark. 375, 646 S.W.2d 4 (1993).
• The privilege against self-incrimination does not apply in the same way in a revocation hearing as it does in a trial. Courts have held that since the rules of evidence need not be strictly adhered to, the privilege against self-incrimination does not prevent consideration of inculpatory statements or a refusal to answer questions. State ex rel. Flowers v. Dept. of Health & Social Services, 81 Wis. 2d 376, 260 N.W.2d 727 (1978). Further, “because a revocation hearing is not a criminal prosecution, the probationer may be called by the government as a witness and may be required to testify regarding his noncriminal conduct even if it amounts to a probation violation or else have his refusal to testify considered against him.” 5 Wayne R. LaFave, Criminal Procedure s 26.10(c) (2d ed.) (citing Minnesota v. Murphy, 465 U.S. 420 (1984)).
• The constitutional right to speedy trial does not apply to revocation hearings. White v. State, 329 Ark. 487, 951 S.W.2d 556 (1997); see also 21A Am. Jur. 2d Criminal Law § 920 (1998) (there is no constitutional right to a speedy trial in a revocation hearing).
Ark. Code Ann. § 5-2-305 (Repl. 1997), dealing with psychiatric examination of defendant, is inapplicable to revocation hearings. Pyland v. State, supra.
• Federal Rules of Criminal Procedure, Rule 11 regarding guilty pleas is not applicable in revocation hearings. Fed. R. Crim. P. Rule 11; U.S. v. Rapert, 813 F.2d 182 (8th Cir. 1987).
• Collateral estoppel works differently in revocation hearing and trials. A criminal conviction collaterally estops a criminal defendant from denying his or her acts in a subsequent criminal trial. But collateral estoppel does not apply to issues raised at a revocation hearing. 21 Am. Jur. 2d Criminal Law § 433 (1998).
• There is no presumption of innocence in a revocation hearing. Parole revocation, for example, is not part of criminal prosecution. Revocation is remedial rather than punitive because it seeks to protect welfare of parolees and the safety of society. Revocation hearings are not concerned with retribution. 59 Am. Jur. 2d Pardon and Parole § 96 (1987).
• Statute regarding failure to appear does not apply to an order to appear issued prior to a revocation hearing. Ark. Code Ann. § 5-54-120(d) (Repl. 1997).

The final point made by the majority is that revocation hearings are “criminal proceedings” and, thus, the Criminal Rules apply. But Rule 33.1 does not use the term “criminal proceeding.” It speaks in terms of “trials.” If this court wishes to apply Rule 33.1 to revocation hearings, it should amend the rule to do so. As matters stood until today, no one was on notice that this was the court’s interpretation.

This court interprets its rules, using the same means used to interpret statutes. Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000). And we give words in our statutes their plain meaning. Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993). This was not done in the instant case. I would consider the sufficiency issue on the merits.

IMBER, J., joins.

        See Arkansas Supreme Court Rule l-2(e)(iii); Rule 33.1 was modified by per curiam April 8, 1999.

        Miner v. State has also been, submitted to the court this week for review of this issue.

        See also Dabney v. State, 278 Ark. 375, 646 S.W.2d 4(1983) (highlights the differing burden of proof and that revocation can occur before conviction on the subsequent offense).


author: Per Curiam.

text:
    William BENTON v. Honorable Jim GUNTER, Circuit Judge on Assignment; Janice Roberts and Jerry Riley; County and Probate Clerk, Helen McClinton Bradley; and Jefferson County Board of Election Commissioners
    00-1156
    27 S.W.3d 752
    Supreme Court of Arkansas
    Opinion delivered October 12, 2000

      John W. Cone, for petitioner/appellant.
    No response.
   Per Curiam.

Petitioner/appellant William Benton petitions for an emergency writ of certiorari or an accelerated appeal and a stay. At issue is a complaint for mandamus and declaratory judgment filed in Jefferson County Circuit Court on September 28, 2000, by Janice Roberts and Jerry Riley to declare Benton ineligible to serve as Second Division Municipal Judge in Pine Bluff on grounds that he does not reside in Pine Bluff. On that same date, Benton and Megis R. Brainard filed a thirty-party petition and cross claim for writ of mandamusand declaratory relief, challenging the eligibility of Waymon Brown to serve in that same position on the basis of the length of time he has been licensed to practice law.

On October 6, 2000, the circuit court, after a hearing on the matter, denied and dismissed the petition filed by Benton and Brainard, but granted the petition of Roberts and Riley for the reason that Benton was not a qualified elector of the city of Pine Bluff. The order of the court removed Benton from the ballot, declared him ineligible as a candidate, stated that no votes should be counted for him at the General Election, and stated that no certificate of elector should be issued to him.

We temporarily stay the order of the circuit court and accelerate this appeal. We direct that simultaneous briefs be filed in this case on or before close of business on Friday, October 20, 2000. There will be no reply briefs.


text:
    Oscar STILLEY v. Maurice HUBBS and Robert Garner; Patti Hill, In Her Official Capacity as County Clerk of Crawford County, Arkansas; Kenneth Chitwood, Bill Coleman, and Helen Campbell, In Their Official Capacities as Election Commissioners of Crawford County, Arkansas
    00-1141
    28 S.W.3d 857
    Supreme Court of Arkansas
    Opinion delivered October 12, 2000

      Appellant, pro se.
    No response.
   Per Curiam.

The appellant/intervenor, Oscar Stilley, seeks an expedited briefing schedule and decision in conjunction with the appeal of a Crawford County Circuit Court decision. We deny the motion.

The appellant filed his motion to expedite on Friday, October 6, 2000, and this matter came before this Court on the following Wednesday, October 11, 2000. The appellant has made no request for a stay, but asserts the following:

The county board of election commissioners is required to “prepare official absentee ballots and deliver them to the county clerk for mailing to all qualified applicants as soon as practicable before the last day on which the ballot will be counted but in any event not less than twenty-five (25) days before any election.” Ark. Code Ann. [§] 7-5-407. Mertz v. State, 318 Ark. 239, 884 S.W.2d 264 (1994).
By the calculations of undersigned, the 25 day deadline will not be passed if this cause is decided by October 12, 2000, same being a regular day of decision for the Court. Appellant prays that the scheduling order provide for the completion of this appeal in time for decision on or before October 12, 2000.

The appellant asks us to require the appellees to present a brief in time for the Court to consider this case prior to October 12, 2000, so that the case will be decided prior to the commencement of absentee balloting, which begins on October 13, 2000, for the November 7, 2000, election. To do so would not only be unfair to the appellees, it would also not give this Court the time needed for deliberation of the issue or issues to be presented. See Stilley v. Bradley, 342 Ark. 274, 27 S.W.3d 436 (2000); McCuen v. Harris, 318 Ark. 522, 891 S.W.2d 350 (1994). We, therefore, must deny the motion for expedited consideration.

Denied.


text:
    Oscar STILLEY v. John R. YOUNG, Freddy Burton, In His Official Capacity as County Clerk of Saline County, Arkansas
    00-1119
    28 S.W.3d 858
    Supreme Court of Arkansas
    Opinion delivered October 12, 2000

      Appellant, pro se.
    No response.
   Per Curiam.

The appellant/intervenor, Oscar Stilley, seeks an expedited briefing schedule and decision in conjunction with the appeal of a Saline County Circuit Court decision. We deny the motion.

The appellant filed his motion to expedite on Thursday, October 5, 2000, and this matter came before this Court on the following Wednesday, October 11, 2000. The appellant has made no request for a stay, but asserts the following:

The county board of election commissioners is required to “prepare official absentee ballots and deliver them to the county clerk for mailing to all qualified applicants as soon as practicable before the last day on which the ballot will be counted but in any event not less than twenty-five (25) days before any election.” Ark. Code Ann. [§] 7-5-407. Mertz v. State, 318 Ark. 239, 884 S.W.2d 264 (1994).
By the calculations of undersigned, the 25 day deadline will not be passed if this cause is decided by October 12, 2000, same being a regular day of decision for the Court. Appellant prays that the scheduling order provide for the completion of this appeal in time for decision on or before October 12, 2000.

The appellant asks us to require the appellees to present a brief in time for the Court to consider this case prior to October 12, 2000, so that the case will be decided prior to the commencement of absentee balloting, which begins on October 13, 2000, for the November 7, 2000, election. To do so would not only be unfair to the appellees, it would also not give this Court the time needed for deliberation of the issue or issues to be presented. See Stilley v. Bradley, 342 Ark. 274, 27 S.W.3d 436 (2000); McCuen v. Harris, 318 Ark. 522, 891 S.W.2d 350 (1994). We, therefore, must deny the motion for expedited consideration.

Denied.


text:
    Katherine WARD v. STATE of Arkansas
    CR 00-1084
    27 S.W.3d 752
    Supreme Court of Arkansas
    Opinion delivered October 12, 2000

      David R. Cannon, for appellant.
    No response.
   Per Curiam.

Appellant Katherine Ward, by and through her attorney, has filed a motion for rule on clerk. Her attorney, David R. Cannon, states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.