The Arkansas Lawyer - Winter 2009
The Arkansas Lawyer magazine is the flagship publication of the Arkansas Bar Association. The quarterly publication communicates the news of the Arkansas Bar Association and provides brief and in-depth articles on many aspects of the legal profession. The magazine is distributed to the approximately 5,000 members of the Association as well as to other state and local bar associations and law libraries across the country.
A publication of the Lawyer Arkansas Bar Association Vol. 44, No.1, Winter 2009 online at www.arkbar.com The Arkansas Inside: Changes to Venue Law in Arkansas The "Empty Chair" Provision of Act 649 Fair Share Liability and Non-Party Apportionment Publisher Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 Homepage: www.arkbar.com E-Mail: firstname.lastname@example.org editor Anna Hubbard executive director Karen K. Hutchins editorial board Philip E. Kaplan, Chair Judge Wiley A. Branton, Jr. Michelle H. Cauley Milton Fine, II William D. Haught Jim L. Julian Mary Beth Matthews Gordon S. Rather, Jr. Drake Mann David H. Williams Teresa M. Wineland oFFicers President rosalind M. Mouser Board of Governors Chair steven W. Quattlebaum President-Elect donna c. Pettus Immediate Past President richard l. ramsay Secretary-Treasurer William a. Martin Parliamentarian J. leon Johnson Young Lawyers Section Chair Gwendolyn l. rucker board oF GoverNors Thomas M. Carpenter Richard C. Downing Causley Edwards Robert R. Estes, Jr. David M. Fuqua Charles L. Harwell L. Kyle Heffley Anthony A. Hilliard Colette D. Honorable Sean T. Keith Roy Beth Kelley Harry A. Light Chalk S. Mitchell Danny M. Rasmussen Charles D. Roscopf, Jr. Brian M. Rosenthal Todd M. Turner John T. Vines Eddie H. Walker, Jr. Tom D. Womack Dennis Zolper liaisoN MeMbers Zane A. Chrisman Brian H. Ratcliff Jack A. McNulty Karen K. Hutchins Judge Michael E. Irwin Carolyn B. Witherspoon Judge Harry A. Foltz features Lawyer Vol. 44, No. 1 The Arkansas 10 Ark. Code Ann. � 16-55-213: Tort Reform Brings Sweeping Changes to Venue Law in Arkansas Kelly W. McNulty 13 Editor's Note re Johnson v. Rockwell Automation, Inc. 14 Phantoms, Empty Chairs, and Diminished Recoveries: Why the "Empty-Chair" Provision of Act 649 Violates the Arkansas Constitution Brian G. Brooks 18 I Ain't Afraid of No Ghost: Why the Supreme Court of Arkansas Should Uphold Fair Share Liability and Non-Party Apportionment Jason W. Earley 22 Practice Tip: Handling Constitutional Challenges to a Statute Teresa Wineland 24 Albert Pike Norwood Phillips and Jacqueline Wright Walker 26 The ArkBar PAC: A Time of Transition Jim L. Julian, Dennis Zolper and Tony Hilliard The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. PostMaster: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, email@example.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2009, Arkansas Bar Association. All rights reserved. 49 Voluntary Appellate Mediation Pilot Program Contents Continued on Page 2 in this issue Association News CLE Calendar Board of Governors Meeting Lawyer Vol. 44, No. 1 The Arkansas 6 27 28 30 32 33 50 51 52 Thank you to the 2008 Volunteer CLE Speakers and Program Planners Judicial Disciplinary Actions Lawyer Disciplinary Actions In Memoriam Arkansas Bar Foundation Memorials and Honoraria Classified Advertising columns President's Report Rosalind M. Mouser 5 9 Young Lawyers Section Report Gwendolyn Rucker Arkansas Bar Association 2224 Cottondale Lane Little Rock, Arkansas 72202 HOUSE OF DELEGATES Delegate District 1-SE: Robert F. Thompson III Delegate District 2-SE: Jerrie Grady Delegate District 3-SE: Mark A. Mayfield, Brant Perkins, Teresa M. Franklin Delegate District 4-SE: Kathie A. Kimbrell Delegate District 5-SE: A. Jan Thomas, Jr. Delegate District 6-SE: Marshall Wright Delegate District 7-SE: Winston B. Collier Delegate District 8-SE: William N. Reed Delegate District 9-SE: Charles D. Roscoph Delegate District 10-SE: Brandon C. Robinson, Paul T. Bennett Delegate District 11-SE: C.C. Gibson III Delegate District 12-SE: Timothy R. Leonard Delegate District 13-SE: Matthew J. Shepherd, James E. McMenis Delegate District 14-SE: Amy Freedman, John C. Finley III Delegate District 15-SE: F. Thomas Curry, Cecilia Ashcraft Delegate District 16-SE: Jonathan D. Jones, Jacob M. Hargraves Delegate District 17-SE: Sam E. Gibson Delegate District 1-NW: Jason B. Kelley, Stephen A. Geigle, Vicki S. Vasser, Anthony W. Juneau Delegate District 2-NW: Brock Showalter, Earl Buddy Chadick, Charles L. Harwell, Tim Tarvin, Debby Thetford Nye, Paul D. Reynolds, W. Marshall Prettyman, Jr., Robert R. Estes, Jr., Charles M. Duell, Troy L. Whitlow Delegate District 3-NW: Stephen C. Smith, Kimberly J. Frazier, Rita Howard, Farrah L. Fielder, C. Michael Daily, Jeffrey D. Rickard Delegate District 4-NW: Patrick C. McDaniel Delegate District 5-NW: Brent Capehart Delegate District 6-NW: Roy Beth Kelley, John C. Riedel Delegate District 7-NW: Stephan M. Hawks, Charles E. Clawson, III Delegate District 8-NW: Jerry D. Patterson Delegate District 1-C: Gwendolyn L. Rucker, Mitchell L. Berry, M. Stephen Bingham, Brian A. Vandiver, Mark T. McCarty, Jay T. Taylor, Judge Beth M. Deere, J. Leon Johnson, Rebecca J. Denison, Michelle H. Cauley, David P. Glover, Jay L. Shue, Jr., Elizabeth Thomas Smith, Joel M. DiPippa, Khayyam Eddings, Christian Harris, Ka Tina R. Hodge, Jeffrey Dale Wood, Gill A. Rogers, Mark W. Hodge, Brett D. Watson, Patrick L. Spivey, Danyelle J. Walker, Alan G. Bryan, Tim J. Cullen, JaNan A. Davis, Jennifer W. Flinn, Anne Hughes White, Brendan T. Monaghan, Tasha Sossamon Taylor, Harry A. Light Law Student Representatives: Sloane Morgan, University of Arkansas School of Law; Amber Elbert, UALR William H. Bowen School of Law 2 The Arkansas Lawyer www.arkbar.com IT'S TIME TO GROW YOUR RETIREMENT Legal professionals know that growing a future begins now. A good start is selecting the right resource for a retirement plan for your firm. Your best option may be the cost-effective program that was created by lawyers for lawyers, and run by experts. ABA Retirement Funds has been providing tax qualified plans for over 40 years. Today our program offers full service solutions including plan administration, investment flexibility and advice. Now we also offer our new Retirement Date Funds that regularly rebalance the fund's assets based on your selected target retirement date. Plus, our program now accepts Roth 401(k) contributions from profit sharing plans that currently offer a 401(k) feature. Isn't it time to start growing your future with the ABA Retirement Funds? LEARN HOW YOU CAN GROW YOUR 401(k) WISELY Call an ABA Retirement Funds Consultant at 1-877-947-2272 www.abaretirement.com For a copy of the Prospectus with more complete information, including charges and expenses associated with the Program, or to speak to a Program consultant, call 1-877-947-2272, or visit www.abaretirement.com or write ABA Retirement Funds P.O. Box 5142 � Boston, MA 02206-5142 � firstname.lastname@example.org. Be sure to read the Prospectus carefully before you invest or send money. The Program is available through the Arkansas Bar Association as a member benefit. However, this does not constitute, and is in no way a recommendation with respect to any security that is available through the Program. 10/08 The Blue Book From compiling to printing to final delivery, we maximize our resources to provide a directory that allows customers to reach you faster and more efficiently. And with over 70 years of publishing expertise we can minimize your effort to accelerate the exposure of your professional business listing across the state. The can help you reach a bigger market. A bigger market is out there... ...you too can reach it with the Blue Book To order your copy or to be included in the next edition contact us at 1-800-447-5375 Legal Directories Publishing Company, Inc. - www.LegalDirectories.com 4 The Arkansas Lawyer www.arkbar.com President's Report by Rosalind M. Mouser Your Bar at Work Rosalind Mouser's "President's Report" portrays photos of recent Association Activities Bob Branch, Rosalind and Harry Truman Moore at the Greene County Bar Association Annual Fish Fry where Rosalind presented the Lawyer Community Legacy Award to Bob in October. photo courtesy of Paragould Daily Press Sam Gibson, Rando Hicks and Pam Gibson at the Website Oversite Committee meeting at the Fall Legal Institute in Springdale in October. Judge Audrey Evans, Justice Sandra Day O'Connor and Rosalind at the University of Arkansas School of Law building dedication in October. photo courtesy of Andy Alberston, U of A Law School Jim Sprott, Rosalind, Jonathon and Emily McIllwain, Jan Sprott, Justice Robert Brown, Justice Jim Gunter, and Justice Paul Danielson at the Swearing-In Ceremony in October. YLS Chair Gwen Rucker and young lawyers Ragen Gruber and Brandon Moffitt and Rosalind at the Swearing-In Ceremony in October. Donna Pettus, Karen Hutchins, Alexandra Jane and Zane Chrisman, Rosalind and Carolyn Witherspoon at the Board of Governors' Meeting in Little Rock in December. Rosalind, President of the Arkansas Trial Lawyers Association, Paul Byrd,, and Dean Cynthia Nance at the U of A School of Law holiday reception in December. photo courtesy of Andy Alberston U of A Law School James M. Dunn, Rosalind and Steve Sharum at the Sebastian County Bar Association meeting where Rosalind presented Attorney of the Year Awards to James and Steve in December. photo courtesy of Southwest Times Rosalind, Chief Justice James R. Hannah and Justice Paul Danielson at the SwearingIn Ceremony in January. photo courtesy of Arkansas Supreme Court Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 5 Association News A Call to Leadership in the Arkansas Bar Association Nominating petitions due March 31, 2009 The House of Delegates and Board of Governors address matters important to the legal system, our Association and every attorney in Arkansas. For example, the House decides Association policy on new initiatives before the Arkansas Supreme Court and on legislation before the General Assembly affecting the legal system. Recent examples include rules governing electronic discovery and the Association's legislative package. The Board handles the business aspects of the Association plus keeps up with trends affecting the legal profession. Being in the House or on the Board is a chance to get acquainted with lawyers all over the state, to be recognized as the representative of lawyers within the individual's district, and to help shape the future of the profession. Election Process For both Delegates and Governors, a nomination petition signed by three current members of the Association, who reside in the geographical area of election, must be filed with the Secretary/ Treasurer at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than March 31, 2009. A sample petition is available from the Association's office or Web site. The petitions and current members of both bodies are listed under "About Us" on the Association's Web site at www.arkbar.com. Qualifications for Board of Governors The attorney must reside in the geographical area for the Board of Governors' position and must have served one year in the House of Delegates or must have been an Association member for seven years by the time of joining the Board of Governors in June. Qualifications for House of Delegates The attorney must be an Association member residing within the Delegate District. Qualifications for YLS Chair-Elect Nominating petitions must be filed by April 10, 2009 The YLS Chair-Elect shall be elected by the majority of those present and voting at the Annual Meeting of the Young Lawyers Section, which will occur during the June Annual Meeting of the Association. Nominations shall be made by petitions signed by at least 25 Section members. To be eligible for nomination, a Section member must have served as Chair of a YLS Section Committee or on the YLS Executive Council. No nominees shall be eligible unless they are present at the Annual Meeting of the Section. The Chair-Elect for 2009-10 will be nominated from the Central State Bar District. Schedule For election to the houSe oF delegateS Spring 2009 District 1-se* 2-se 3-se 4-se 9-se 13-se 14-se 15-se Schedule For election to the Board oF governorS Spring 2009 District 2-bG County(ies) No. of Delegates to be elected 1 Delegate 1 Delegate 1 Delegate 1 Delegate 1 Delegate 1 Delegate 1 Delegate 1 Delegate 2 Delegates 3 Delegates 2 Delegates 1 Delegate 10 Delegates County(ies) One Governor to be elected Greene, Clay, Randolph Jacskon, Independence, Sharp, Lawrence Craighead, Poinsett Mississippi Monroe, Phillips, Lee Columbia, Ouachita, Union Sevier, Little River, Miller, Lafayette Howard, Pike, Hempstead, Nevada Clark, and Hot Spring 1-NW** Benton 2-NW Washington 3-NW Sebastian, Crawford 6-NW Yell, Pope, Conway, Perry 1-c*** Pulaski *South and East State Bar Districts **Northwest State Bar District ***Central State Bar District All Are Three Year Terms 6 The Arkansas Lawyer www.arkbar.com 3-bG 4-bG 5-bG 10-bG 11-bG 13-bG 14-bG Independence, Jackson, Poinsett, Mississippi, Cross, Crittenden, Woodruff, St. Francis, Lee, Monroe and Prairie Cleburne, White, Lonoke, and Jefferson Phillips, Arkansas, Cleveland, Lincoln, Desha, Drew, Calhoun, Bradley, Union, Ashley and Chicot Little River, Miller, Lafayette, Columbia, Ouachita, Clark, Nevada, Hempstead, Howard, and Sevier Carroll, Madison, Boone, Newton, Marion, Searcy, Baxter, Fulton, Izard, Stone, Van Buren, Conway and Faulkner Crawford, Sebastian, Franklin, Johnson, Perry, Pope, Logan, Yell, Scott and Polk Pulaski Pulaski All Are Three Year Terms Association News Oyez! Oyez! ACCOLADES James M. Dunn received the AVLE Pro Bono Attorney of the Year Award and Stephen M. Sharum received the Arkansas River Valley Volunteer Attorney Project, Pro Bono Attorney of the Year Award. APPOINTMENTS AND ELECTIONS Searcy District Judge Watson Bell was appointed chair of the state's Workers' Compensation Commission. Judge Larry Vaught has been appointed chief justice of the Arkansas Court of Appeals for the next four years. WORD ABOUT TOWN Barrett & Deacon, P.A. announced that M. Scott Jackson has joined the firm's Jonesboro office and Alfred F. Angulo, Jr., has joined the firm's Fayetteville office. Stephanie Harper Easterling has opened a law firm on the corner of West Mountain and East Avenue in Fayetteville. George M. Matteson has joined the Harrelson Law Firm, P.A., in Texarkana. Mitchell Williams Selig Gates & Woodyard announced that former U.S. Attorney Robert C. Balfe joined the firm. Brian Rabal and Hollie Greenway have joined together as Rabal & Greenway Law Partners in Centerton, AR. Bridges, Young, Matthews & Drake announced that Leslie Sarver joined the firm as an associate in its Hot Springs office. The Plastiras Law firm announced that Nathan T. Green joined the firm. We encourage you to submit information for publication in OYEZ! OYEZ! To do so, please send information to: email@example.com. Nomination entry forms are available for this year's arkansas bar Foundation and arkansas bar association awards. these awards include: (1) Outstanding Lawyer; (2) Outstanding Lawyer-Citizen; (3) C.E. Ransick Award of Excellence; (4) James H. McKenzie Professionalism Award; (5) Equal Justice Distinguished Service Award; and (6) Outstanding Local Bar Association. These awards will be presented jointly by the Foundation and the Association at the Annual Meeting in Hot Springs in June. deadline for submission of nomination forms: Friday, april 17, 2009. Nominations may be submitted by any Association member. To request an entry form, please call Ann Pyle at the Arkansas Bar Foundation at (501) 375-4606 or (800) 609-5668 or email firstname.lastname@example.org. Arkansas VersusLaw Search Arkansas and national legal materials Developed specifically for members Searchable Weekly Case Summaries Free technical support and training Go to www.arkbar.com Click on Arkansas VersusLaw and login Select a library and begin searching Nomination entry forms are available for this year's Young lawyers section Frank c. elcan ii award This award is given in recognition of a lawyer who has demonstrated exceptional leadership skills in and made outstanding contributions to the Young lawyers section of the Arkansas Bar Association. This award will be presented at the Annual Meeting in Hot Springs in June. deadline for submission of nomination forms: Friday, april 17, 2009. Nominations may be submitted by any Association member. To request an entry form, please contact Lorrie Payne at the Arkansas Bar Association at (501) 375-4606 or (800) 609-5668 or email email@example.com. 7 Your free online legal research tool at www.arkbar.com Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer "After stuffing all I can into a UPS Express Envelope, there's room for one more thing. My discount." SM Only Brown, lets you stuff to your heart's content. No matter how many pages you put into a UPS Express Envelope, the price is the same. And Brown gives you the widest range of Express delivery options across the U.S. or to any of over 215 countries and territories served internationally. So go ahead. You can pack a lot into a UPS Express Envelope -- including your association discount. For details, call 1-800-325-7000. Special UPS Savings for Members of the Arkansas Bar Association $1.50 off UPS Next Day Air � letters 10% off UPS Next Day Air packages UPS 2nd Day Air A.M.� letters UPS 2nd Day Air A.M. packages 20% off UPS Worldwide ExpressSM letters or packages (U.S. origin only) To take advantage of these valuable discounts, call 1-800-325-7000. � Copyright 2003 United Parcel Service of America, Inc. WHAT CAN BROWN DO FOR YOU? SM 8 The Arkansas Lawyer www.arkbar.com Young Lawyers Section Report by Gwendolyn L. Rucker A New Birth of Freedom I would be remiss to ignore reflection upon one of the most significant events in American history -- the election of the first African-American as president of the United States of America. In celebration, the Joint Congressional Committee on Inaugural Ceremonies chose "A New Birth of Freedom" as President Obama's inaugural theme, in part to commemorate the 200th anniversary of Abraham Lincoln's birth. As President Lincoln is viewed by some as the great emancipator who freed the slaves, how fitting a tribute since Obama announced his candidacy for president in the "Land of Lincoln," quoted Lincoln in his November 4, 2008, acceptance speech, followed Lincoln's route from Philadelphia to Washington to become the 44th President of the United States, and took office using the same Bible used for Lincoln's first inauguration in 1861. Regardless of political affiliation, most would agree that the 2008 presidential election will be remembered as one of the most galvanizing and unifying events of our time. Also in honor of Lincoln, the American Bar Association recently announced the Law Day theme for 2009: "A Legacy of Liberty." Our Law Day Committee, chaired by Cliff McKinney, is already off to a great start with planning this year's activities. In addition to Grant Cox and Aaron Taylor, we have had many new lawyers join the Committee. They include Cale Block, Amy Bagnall, Cory Childs, Alison Dennington, Regan Gruber, Brandon Moffitt, Valerie Nation, and Melanie Yelder. Welcome aboard! The Committee is also working on a Young Adult Handbook that will be distributed to high school students across the state. YLS member Matt House presented a proposal for the handbook to the Executive Council, who unanimously voted to create and publish the handbook. When the call went out for volunteers, boy, did you guys answer the call! Volunteers include the Consumer Protection Division of the Attorney General's Office, Zane Chrisman, Vicki Vasser, Wayne Young, Brandie Patton, Christy Conrad, Arkansas Association of Women Lawyers, and Elliot Millner. Matt will lead us on this project, and the handbook will encompass a wide variety of legal topics -- from leasing your first apartment and buying a car to jury duty and staying out of trouble. A big thanks to all of you who have agreed to assist with writing and editing the handbook and to Matt for bringing this unique and worthwhile project to our attention. There is no better way for us to honor Lincoln's legacy than providing a one-stop resource tool for Arkansas's youth about to embark on their newly found freedom into adulthood. If you are interested in assisting with the handbook or finding out more about this year's Law Day activities, please email Cliff (firstname.lastname@example.org) or Matt (email@example.com). Many of you have offered to assist with our 2008-2009 Public Service Project -- Ending Hunger in Arkansas. We have partnered with the Arkansas Rice Depot to raise awareness about hunger and poverty in our state, especially as it relates to children. We had several events scheduled this past holiday season; however, our volunteer night with the Junior League of Little Rock and the UALR Bowen School of Law was cancelled due to inclement weather. Despite this minor setback, we were able to volunteer in several Little Rock area Wal-Mart stores to raise awareness about hunger in our state. Patrick Wilson, Dustin Dyer, Patricia Lamar, and Janet Armour were among those who assisted with this effort, and we thank you all. We will keep you posted as to future events. Did somebody say mock trial? Yes, it's that time of year again when we provide an important community service by working with students and teaching them about the legal profession. Special thanks to Bonnie Robertson and Paul Gehring for agreeing to help with mock trial this year. If you would like to volunteer or learn more about the mock trial program, please contact Rando Hicks (firstname.lastname@example.org). YLS member Taura McDaniel is the 2009 Mock Trial Committee Chair. Here's what else YLS is working on: In response to your YLS survey answers, Executive Council members Tony Juneau, Paul Bennett, Cliff McKinney, and Vicki Vasser are working along side Hilary Chaney, Chair of the YLS Legal Education Committee, and members of the YLS Membership Committee (Tasha Sossamon Taylor, Andy Taylor, Jennifer Flinn, Brandon Moffitt, Regan Gruber, and Brian Clary) to bring you some new and exciting programming this Spring. Interested in a hot dog, ice cold beer, and a baseball game following a CLE on a cool topic? We thought you might be. In addition, this year's Annual Meeting will undoubtedly be one of the best ever, so you will not want to miss it! We are still working out the final details, but we should be able to share programming information with you very soon. It will not be long now before I have to take my final walk as YLS Chair and pass the gavel on to our Chair-Elect, Tony Juneau. It has been an awesome journey thus far, and I thank you for taking it with me. What the history of this great nation has taught us is that, together, we can achieve the insurmountable. As you can see from the list of involved section members above, the spirit of America's promise is alive and well in the YLS. Together, we have achieved some wonderful things. Here's to a great final stretch! Correction: In the last YLS column, I inadvertently failed to include Tasha Sossamon Taylor in the 2008-2009 Executive Council listing. Mrs. Taylor is an essential member of our YLS team, and she represents the YLS Central District. 9 Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer Ark. Code Ann. � 16-55-213: Tort Reform Brings Sweeping Changes to Venue Law in Arkansas V Kelly McNulty is a senior associate at Gill Elrod Ragon Owen & Sherman P.A. and practices mainly in the area of commercial litigation and debtor/ creditor law. 10 The Arkansas Lawyer www.arkbar.com By Kelly W. McNulty enue is one of the earliest tenets of civil procedure that we all learn as first year law students. The names and faces of the professors teaching that lesson have changed, yet Arkansas venue law has remained relatively stable for almost a century and a half. While most other facets of the law have been transformed dramatically during this stretch of time, "the underlying rule of venue in Arkansas since 1869 has been that every defendant should be subject to suit only in his own residence or place of business unless for policy reasons, the legislature has indicated otherwise."1 With the tide of tort reform at the turn of the century, Arkansas's venue laws took a sharp turn. In 2003, the Arkansas Legislature enacted the Civil Justice Reform Act of 2003 (the "Act").2 While primarily presented as a tort reform law, the Act included various other provisions, which, from a practical standpoint, affected many different aspects of the law.3 Specifically, Ark. Code Ann. � 16-55-213 (the "New Law"), which provides venue for "all civil actions," was included within the Act. The focus of this article is to discuss how Ark. Code Ann. � 16-55-213 transformed venue law in Arkansas. The article will begin with a brief overview of the old venue law, Ark. Code Ann. � 16-60101, et seq. (the "Old Law")4, then move to a detailed examination of the New Law and how it has been interpreted by Arkansas courts, and then a comparison of the changes between the old and new. This article will conclude with a discussion of the possible effects of the new venue law. the old law Prior to 2003, Arkansas venue law generally held that a person was only subject to a lawsuit in the county (1) of his or her residence or principal place of business, (2) where the action occurred, or (3) in Pulaski County for certain actions involving this government.5 Of course, the Old Law also provided certain variations from this general rule.6 For actions affecting real property in more than an incidental way, the Old Law required the action to be brought in the county where the property was located.7 Under Ark. Code Ann. � 16-60-104, a domestic corporation must be sued in the county in which it is situated or has its principal office or business, or in which its chief officer resides, or in a county where it has a branch office or other place of business.8 Similarly, Ark. Code Ann. � 16-60105 set venue in an action against a corporation, foreign or domestic, in a county where the corporation elects to establish a place of business or branch office.9 In personal injury or wrongful death cases, venue was proper under the Old Law in the county where the accident causing the injury or death occurred, or where persons injured or killed resided at the time of injury.10 This would include a wide variety of causes of action, such as actions for battery, medical malpractice, or injury caused by a motor vehicle accident.11 Finally, a "catchall" venue statute existed that governed when a venue statute for a specific cause of action did not govern.12 According to this "default" statute, venue is generally proper in the county where the defendant resided or where the defendant received a summons.13 This "catchall" or "default" venue statute applied "in the absence of another statute to the contrary."14 In their treatise, Justice Newbern and Professor Watkins state that "[b]y focusing on residence, this `default' venue statute reflects a desire to protect defendants from oppressive forum choices by plaintiffs."15 This is quite interesting because as will be explained, the New Law essentially disregards this "desire" and ushers in a new "default" venue statute.16 the New law The Civil Justice Reform Act of 2003 dramatically changed Arkansas's venue law. Arkansas law now provides that "all civil actions," other than those six specifically excluded venue statutes,17 "must" be brought in "any" of the following counties: (1) The county in which a substantial part of the events or omissions giving rise to the claim occurred; (2) (A) The county in which an individual defendant resided. (2) (B) If the defendant is an entity other than an individual, the county where the entity had its principal office in this state at the time of the accrual of the cause of action; or (3) (A) The county in which the plaintiff resided. (3) (B) If the plaintiff is an entity other than an individual, the county where the plaintiff had its principal office in this state at the time of the accrual of the cause of action.18 For class actions, Ark. Code Ann. � 16-55-213(b)(1) provides that the "residence of any properly joined named class representative or representatives," but not "putative" or non-named class members, "may be considered in determining proper venue in a class action."19 "Any action for medical injury brought under � 16-114-201 et seq. against a medical care provider, as defined in � 16-114-201(2), shall be filed in the county in which the alleged act or omission occurred."20 The Arkansas Court of Appeals recognized that this Act "significantly altered [Arkansas's] `venue landscape.'"21 The Act is applicable to all causes of action accruing on or after March 25, 2003.22 In general, this new venue statute allows an individual plaintiff to file a lawsuit, other than in those actions which are specifically excluded, in the county of his or her residence, rather than just the county of an individual defendant. For corporations, limited liability companies and all other entities other than individuals, venue is no longer only proper in the county where the corporate defendant maintains its principal place of business or main office. Now, Ark. Code Ann. � 16-55-213(a)(3)(B) provides for venue in the county where the corporate plaintiff "had its principal office" at the time the cause of action accrued. No longer is a defendant only subject to suit in his or her own residence or place of business. By its terms, the New Law does not however repeal other inconsistent venue statutes. As one commentator predicted, "[s]ince courts do not favor repealing legislation by implication, the courts will presumably try to read new statutes in conjunction with old, inconsistent statutes."23 As explained below, it does in fact appear that Arkansas courts are attempting to avoid repealing the Old Law by implication.24 Most practitioners would argue that, pursuant to the Old Law, an action on a debt, account or note must be brought in the county where the defendant resided at the time the cause of action arose pursuant to Ark. Code Ann. � 16-60-111(a). Most lawsuits regarding contracts and suits on debts are in fact filed in the county where the defendant resides. Under Ark. Code Ann. � 16-55-213(a)(3)(A), Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 11 Based on the limited interpretation provided thus far, it is clear that courts are going to attempt to "harmonize" the different venue statutes, New and Old. however, this same type of suit can now be brought in the county where the plaintiff resides.25 An example may help show the issues which may arise from this new venue statute. Party A resides in Sebastian County, Arkansas, and Party B resides in Bradley County, Arkansas. Party A sells $20,000 worth of widgets to Party B. Following the delivery of the widgets by Party A, Party B fails to pay as promised. Under Ark. Code Ann. � 16-55-213(a)(3)(A), Party A can now sue Party B in Sebastian County, whereas under Ark. Code Ann. � 16-60111(a), the proper venue for the lawsuit was in Bradley County. From this example one can see how this new venue statute is substantially different.26 the courts Weigh in The Arkansas Supreme Court recently interpreted Ark. Code Ann. � 16-55-213. In Wright v. Centerpoint Energy Resources Corp. ("Wright"), the primary issue was the interpretation of the Old Law and the New Law, and "whether they are in conflict."27 At the time of her death, the decedent in Wright resided in Craighead County, Arkansas, and her estate was opened in that county.28 Her ex-husband filed a wrongful death action in the county of his residence, Crittenden County, pursuant to Ark. Code Ann. � 16-55-213(a)(3)(A), "claiming that, as personal representative . . . he was a plaintiff who resided in Crittenden County . . ." at the time of the death.29 The Defendants argued that venue was proper only in the decedent's county of residence at the time of her death pursuant to � 16-60-112(a).30 The trial court agreed with the Defendants 12 The Arkansas Lawyer www.arkbar.com and dismissed the matter. 31 The issues presented by the parties on appeal in Wright are essentially the arguments that will be raised in all lawsuits where proper venue is raised. The personal representative in Wright argued that the New Law applied and that he could bring the suit in Crittenden County because that is "the county in which the plaintiff resided."32 In addition, the appellant argued that because the two venue statutes are in conflict, the New Law "impliedly repealed" � 16-60-112 and "that the 2003 venue statute takes up anew and covers the entire ground of venue in civil actions."33 He asserted that the New Law is "a comprehensive law that established venue in `all civil actions' other than the six venue statutes that were expressly excepted, and � 16-60-112 is not specifically excepted."34 The Arkansas Supreme Court began its analysis by considering "basic rules of statutory construction to determine which statute gives full effect to the General Assembly's intent when it enacted � 16-55-213 in 2003."35 As to the issue of repeal by implication, the Court stressed the "universal principle" that "the repeal of a law merely by implication is not favored and will not be allowed unless the implication is clear and irresistible."36 Based on these principles, the Court refused to hold that � 16-55-213(a)(3) (A) impliedly repealed � 16-60-112(a).37 In attempting to harmonize the two statutes and avoid "absurd consequences," the Court found that the "repugnancy" between the two statutes was not "abundantly clear."38 Despite this holding that the New Law did not impliedly repeal the Old Law, the Court noticeably applied � 16-55-213(a)(3)(A) to the facts at hand.39 In applying the New Law to the appeal, the Court focused on the use of the word "resided" in a past-tense reference.40 The Court held, In reviewing the statute as a whole, there are only three counties where a wrongful-death action can be brought: (1) where a substantial part of the events or omission giving rise to the claim occurred, (2) where an individual defendant resided, and (3) where the plaintiff resided. See �16-55-213(a) (1), (a)(2)(A), & (a)(3)(A) (emphasis added). Given the past-tense language in subsection (a)(1) referring to the county "in which a substantial part of the events or omissions giving rise to the claim occurred," we similarly con- strue the General Assembly's use of the past tense in subsections (a)(2)(A) and (a)(3)(A) to mean that venue is fixed where the plaintiff or defendant resided at the time of the events giving rise to the cause of action.41 Thus, while the Court held that the New Law did not impliedly repeal the old wrongful death venue statute, it nevertheless applied � 16-55-213. What does this mean? The Court's emphasis on "harmonizing" the two statutes seems to imply that courts will apply the New Law, except where it would lead to "absurd consequences that are contrary to legislative intent."42 The decision in Wright is even arguably limited to the specific facts of that case and wrongful death actions.43 Nevertheless, the Court analysis in Wright gives excellent insight into the issues which will be raised in most every lawsuit where venue is an issue, and how courts will resolve those issues. The few other cases in which courts have had an opportunity to review the New Law give only limited guidance to this proposition. The proper venue for lawsuits involving corporations was examined by the Court of Appeals prior to the Wright decision. In JB Wayne, Inc. v. Hot Springs Village Property Owners' Association ("JB Wayne"),44 the Court labeled Ark. Code Ann. � 16-55-213 the "new default venue statute," and examined the differences between the old and new corporate venue statutes.45 While ultimately determining that the New Law did not apply because the cause of action arose prior to the enactment of the Act, much like the Wright case, the Court emphasized the different tenses of the verbs used in the statutes.46 Prior to the enactment of the Act, venue for actions against corporations was generally proper in the county where the corporate defendant "resides," "has" its principal place of business or "is situated."47 On the other hand, Ark. Code Ann. � 16-55213 provides that venue is proper where the events "occurred," or where the entity "had" its principal place office.48 In JB Wayne, the corporate defendant was no longer in business at the time the lawsuit was filed and the principals of the corporation (who were also guarantors) lived in a different county.49 Thus venue under the Old Law was only proper where the principals currently resided (Saline County). Under the New McNulty continued on page 40 Editors Note: Regarding the status of a pending case involving Act 649 of 2003 -- the subject of the two following articles by Brian G. Brooks and Jason W. Earley On September 11, 2008, the Arkansas Supreme Court granted the request of Judge Leon Holmes of the United States District Court for the Eastern District of Arkansas to answer two questions of Arkansas law regarding a pending case before Judge Holmes involving Act 649 of 2003, entitled the Civil Justice Reform Act of 2003 and codified at A.C.A. sects. 16-55-201 to -220 (Repl. 2005 and Supp. 2007). The questions involve the constitutionality of these provisions, and are set out as follows: 1. Under the facts of this case, whether the provisions of Act 649 of 2003, including but not limited to those codified at Ark. Code Ann. �16-55-202, that allow a fact-finder to consider or assess the negligence or fault of nonparties, violate the Arkansas Constitution, when considered along with the modification of "joint and several" liability in the same act, as codified at Ark. Code Ann. � 16-55-201. 2. Under the facts of this case, whether the provisions of Act 649 of 2003, including but not limited to those codified at Ark. Code Ann. � 16-55-212(b), that address evidence of damages for the costs of necessary medical care, treatment, or services, violate the Arkansas Constitution. The Petitioners' brief was filed on December 1, 2008, along with that of various, interested amicus parties. Respondents' brief is due 30 days after the filing of Petitioners' brief. Petitioners may file a reply brief within 15 days after Respondents' brief is filed. The case is entitled Darrell Johnson, et. al. v. Rockwell Automation, Inc, et. al., No. 08-1009. Landex Research Inc. PROBATE RESEARCH Missing and Unknown Heirs Located with No Expense to the Estate Domestic and International Service for: Courts Lawyers Trust Officers Administrators/Executors 1345 Wiley Road, Suite 121, Schaumburg, IL 60173 Telephone: 800-844-6778 Fax: 800-946-6990 www.landexresearch.com Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 13 Phantoms, Empty Chairs, and Diminished Recoveries: Why the "Empty Chair" Provision of Act 649 Violates the Arkansas Constitution by Brian G. Brooks s this article is being written, briefing is underway in a case in which the Arkansas Supreme Court will decide if the "phantomdefendant" or "empty-chair" provision of Act 649 of 2003 passes Constitutional muster. It is timely to consider the question and to provide the countervailing views. My bias is well known. I represent those injured who seek recovery, and I have written in opposition to Act 649 before. I come to this project with a decided view: this notion of a "phantom defendant" is an abomination in the law, and it offends Arkansas's Constitution. The following pages explain why that position should prevail. 14 The Arkansas Lawyer www.arkbar.com A the Ground rules Some ground rules setting the parameters in which I write are useful. The "Phantom-Defendant" provision must be analyzed along with the abrogation of joint and several liability; otherwise litigating the "fault" of a phantom makes no sense. Thus, I approach those two portions of Act 649 together and discuss one along with the other (with one notable exception that will be obvious). I avoid the debate over whether eliminating joint and several liability and assessing the fault of phantoms in favor of what Professor Wright terms "proportionate several liability" is in the abstract a "good idea."1 That debate rages, and much has been written about it.2 That is not the question here. I focus on why these legislative acts run afoul of the Arkansas Constitution. I avoid a question about these provisions' rational basis for two reasons. First, the question moves perilously close to the issue of whether they are a "good idea." Second, in this respect "fixing" Act 649 is much more amenable to legislative "tweaks"; thus the discussion is not terribly useful. the relevant statutory Provisions Section 1 of Act 649 essentially eliminates joint and several liability in personal-injury cases. While Sections 3 and 5 ostensibly restore it in certain situations, they are of no real effect. Section 3 allows less than full re-allocation of liability when the share of liability of one of multiple defendants is not "reasonably collectible." Section 5 maintains joint and several liability in the unusual situation where persons enter into a conscious agreement to pursue a common plan or design to commit an intentional tort. Section 2, the "Phantom-Defendant" provision, acts hand-inhand with Sections 1, 3 and 5. It requires courts to adjudicate the fault of persons not parties to the action. Section 2 acknowledges the way it weakens the adversarial system by precluding those factual determinations from being given any evidentiary value in other proceedings. More importantly for present purposes, Section 2 acts to limit the amount to be recovered by a plaintiff. Act 649 justifies this alteration of the law in Section 26, the emergency clause. According to the Legislature, Act 649 in general, and the abandonment of joint and several liability in particular, is needed to hold down the costs of medical-malpractice liability insurance, stem the tide of medical-malpractice liability insurers leaving the state, and improve health care. It asserts that "existing conditions" cause a litany of horrors that must be remedied, but the only illustration is "the application of joint and several liability regardless of the percentage of fault." What is Joint and several liability? Again, the beginning point for this discussion must be the abrogation of joint and several liability. The two primary misconceptions for constitutional purposes are categorized as follows: � Many believe that there can be no offense to the constitution when legislators eliminate joint and several liability because the legislature created it. That is incorrect. Joint liability, or more accurately several liability for the entire harm among joint tortfeasors, existed at common law and was in no way a legislative creation. � Act 649 claims that joint and several liability requires defendants who do not cause all of the plaintiff's harm to pay for the entire harm. That is incorrect. Joint and several liability does not exist where a defendant does not cause the entire harm. Thus, depriving a plaintiff of a full remedy against any one of several joint tortfeasors results in a constitutional violation at least where the remaining joint tortfeasors do not fulfill their obligations to complete the remedy. a. the Meaning and origin of "Joint" and "several"" So what precisely does "joint and several liability" mean? The modern understanding is that "joint" means that multiple tortfeasors are liable for the entire harm to the plaintiff while "several" means that the same tortfeasors are liable for only a proportion of that harm, or proportionate several liability. That modern understanding is incorrect. The common law had certain rigid rules. Multiple tortfeasors could not be joined in one action by a plaintiff even where their actions caused an indivisible injury unless they were "acting in concert."3 Those same tortfeasors had no right to contribution among one another. At the same time, a plaintiff could hold each of the many tortfeasors responsible for the entire damage whenever there was a single, indivisible harm, but any fault at all on the part of the plaintiff barred his claim altogether. At common law each one of multiple torfeasors who combined to injure a plaintiff would be held liable for the entire harm. As early as 1691, the cases held that "where the defendants acted in concert, `the act of one was the act of all,' and each was therefore liable for the entire loss sustained by the plaintiff, even though he might have caused only a part of it."4 Within a short time thereafter, "the common law developed likewise a distinct and altogether unrelated principle: a defendant might be liable for the entire loss sustained by the plaintiff, even though his negligence concurred or combined with that of another to produce the result. Or, as the courts have put it, the defendant is liable for all consequences proximately caused by his wrongful act."5 This "several" liability for independent tortfeasors acting in concert is traced to 1771.6 So, what does this history lesson reveal? First, Act 649 makes no sense. Section 1 reads that "the liability of each defendant for compensatory or punitive damages shall be several only and shall not be joint." Placed in historical context, Act 649 actually creates separate liability for each defendant for the entire harm because that is what "several" liability means. At the same time, it appears to revoke the Rules of Civil Procedure that allow joinder of parties, something the Legislature clearly cannot do.7 Second, joint and several liability is not a legislative creation. No statute even adopts it. Recall those harsh and rigid common-law rules? The Uniform Contribution Among Joint Tortfeasors Act, Ark. Code Ann. � 16-61-201, did Brian G. Brooks is a solo practitioner away with the who focuses inequity of not on appellate allowing contripractice and bution among complex legal tortfeasors. The research, writcomparative fault ing and advostatute, Ark. Code cacy for the Ann. � 16-64-122, plaintiff's bar. did away with the Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 15 harsh results of contributory negligence. The joinder Rules in the Arkansas Rules of Civil Procedure allow joinder of parties whether or not they are acting in concert. Joint and several liability is and was a basic tenet of the common law that existed well before Arkansas's constitution was adopted. b. When is liability "several" for the entire harm? The second misconception is that joint and several liability will require a defendant to compensate a plaintiff for more harm than that defendant caused. In Act 649's terms one of the "existing conditions" is "the application of joint and several liability regardless of the percentage of fault." That phrase is just as inaccurate historically and legally as is the notion that joint and several liability is a creature of the legislature. Joint and several liability has never been applied "regardless of the percentage of fault." It operates to apportion consequences of fault among tortfeasors each of whom has been found 100 percent at fault.8 The drafters of Act 649 were exhibiting a common, "fundamental confusion between each defendant's individual full responsibility for the damages that she tortiously caused and the comparative responsibility percentages that are obtained by comparing the defendants' individual full responsibilities for the injury . . . . [If] each defendant's negligence was an actual and proximate cause of 100% of the injury . . . each defendant therefore is fully responsible for the entire injury. Only when we compare their individual full responsibilities, and assume that they were equally negligent, does it make sense to say that each defendant, when compared to the others, bears 50% of the total comparative responsibility for the injury."9 In other words, joint and several liability only holds each defendant responsible for the harm he causes because, in order for the principle to apply in the first place, each and every defendant who is held jointly and severally liable must be responsible for the entire harm. Professor Prosser sets forth the categories of cases where several, or entire, liability is appropriate: � The first is where defendants act in concert. What is notable is the common-law definition of acting in concert: "Those who actively participate in the wrongful act, by cooperation or request, or who lend aid, encouragement or countenance to the wrongdoer, The Arkansas Lawyer www.arkbar.com or approval to his acts done for their benefit, are equally liable with him. Express agreement is not necessary; all that is required is that there shall be a common design or understanding. Such wrongdoers were `joint tort-feasors' at common law, and the cases present no difficulty."10 This definition of "acting in concert" is very much broader than the definition contained in Act 649. Some cooperative effort is all that is needed. Without doubt, one example of acting in concert under this definition would be a bartender repeatedly filling the glass of a patron. � The second example is where there is vicarious, or agency, liability. In this situation, there really is a joint tort. Act 649 does not alter this portion of the common law. Where "two defendants may be under a precisely similar duty to prevent a particular occurrence." The most obvious example is the case of the fall of the party wall, through the negligence of adjoining landowners."11 Where there is "concurrent causation of a single, indivisible result, which neither would have caused alone."12 The example given by Professor Prosser is the case of "two vehicles which collide and injure a third person."13 He goes on to note that "entire liability in these cases rests upon the obvious fact that each defendant is responsible for the loss, and the absence of any logical basis for apportionment."14 For his part, Professor Wright explains this situation with four defendants each of whom place one-fourth of a lethal dose of poison into a decedent's coffee and thereby kill him.15 Where there is "concurrent causation of a single, indivisible result, which either alone would have caused."16 Professor Wright's version of this scenario is where two defendants each place a lethal dose of poison in the plaintiff's coffee.17 c. the arkansas cases The Arkansas cases recognize precisely what Professors Wright and Prosser set forth, and they recognized it long ago. In City Electric v. Conery,18 a boy was shocked when a telephone wire fell over a cable-car line and thus conducted the current through the telephone wire. Liability was imposed on both the cable-car company and the owner of the telephone line. The cable-car company appealed, and the Arkansas Supreme Court affirmed, writing: In this case the cause of the accident was the falling of White's telephone wire, and the contact of the same with the trolley wire of appellant. The jury found both of them guilty of negligence, - White, in permitting his wire to fall and remain down until appellee was hurt; and the appellant, in allowing the same to become charged with electricity by contact with its wire at the time of the injury. If this be true, the injury was the result of the concurring negligence of the two parties, and would not have occurred in the absence of either. In that case the negligence of the two was the proximate cause of the same, and both parties are liable.19 This case is nothing more than Professor Prosser's "concurrent causation of a single, indivisible result, which neither would have caused alone." In Troop v. Dew,20 multiple defendants were working to build or improve roads. Several of them allowed fences to be taken down and not replaced, which allowed cattle to damage the plaintiff's land. Three defendants were held liable for the entire damage and appealed. In deciding the case, the Court first announced circumstances where liability for the entire harm, or "joint liability," was appropriate: It is clear, however, that joint liability exists for separate acts of negligence where there is a common design or purpose or concert of action in the commission of the separate acts, or where such separate acts of negligence are concurrent as to time and place and which unite in setting in operation a single force which produces the injury.21 Under the facts of the case, liability on the part of each defendant for the entire harm was justified under either principle: Brooks continued on page 42 � � � These situations share a common point. Contrary to the oft-repeated criticism of joint and several liability, and indeed the words of Act 649, joint and several liability does not require a defendant to pay for more harm than he caused. If that situation exists, a "logical basis for apportionment" exists and the liability is not "joint and several" or "entire" or "severable" or whatever term one chooses to use. Successive injuries and distinctively separate injuries fall into this category. Joint and several liability only exists in those situations where each and every possible defendant or tortfeasor is a proximate cause of the plaintiff's entire harm. 16 The Arkansas Bar Association receives many calls from the public every day asking for the name of an attorney to help them. Our staff refers the caller to: www.arkansasfindalawyer.com Just $75/year List up to 7 practice areas Potential clients can search for you by practice area and location Help potential clients find you Call Barbara Tarkington at 501-375-4606 to register here W you? are Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 17 I ain't afraid of no ghost1: Why the Supreme Court of Arkansas Should Uphold Fair Share Liability and Non-Party Apportionment by Jason W. Earley I 18 t has been five years since the Arkansas General Assembly slaughtered a sacred cow of Arkansas common law: joint and several liability in tort. Through the controversial "Civil Justice Reform Act of 2003" ("CJRA"),2 the General Assembly abolished joint and several liability in cases involving personal injury and property damage and replaced it with a system of "fair share liability." Under the new fair share liability system, a tortfeasor is only liable for its share of the "fault" for the plaintiff's injury as assessed by the jury.3 A significant element of the new fair share liability regime is that the jury may apportion a percentage of fault to a person or entity who is not a party to the suit. If the jury apportions a percentage of fault to that "non-party," the plaintiff's award against the named defendant is lessened by that percentage. The Arkansas Lawyer www.arkbar.com This feature of fair share liability, often labeled "non-party apportionment," "the empty chair," or "the phantomdefendant,"4 even allows the jury to apportion a percentage of fault to non-parties who are immune from liability.5 As a result, a tortfeasor may now ask the jury to assign a portion of the legal blame for the plaintiff's injury to someone the plaintiff could not have sued. Unquestionably, fair share liability represents a blow to the interests of injured persons. It shifts a portion of the societal cost of tort immunities from tortfeasors to injured individuals. It provides tortfeasors with a potent new defense and hampers an injured person's bargaining position in settlement negotiations. Advocates for the injured vigorously oppose non-party apportionment, but their calls for return to traditional common law rules have gone unheeded by a largely unsympathetic citizenry and legislature. Not surprisingly, advocates for the injured are not going away without a fight. They have turned their focus from the legislature to constitutional attacks designed to bring down fair share liability by judicial decree. Soon, in the case of Johnson v. Rockwell Automation, Inc.,6 the Supreme Court of Arkansas will decide whether the General Assembly has overstepped its bounds by allowing apportionment of fault to an immune non-party. Barring a sea change in the Court's constitutional jurisprudence, non-party apportionment should survive constitutional challenges. The Arkansas Constitution allows the General Assembly to alter common law rules to meet reasonable policy objectives, and the General Assembly has exercised that right throughout its history. how did we get here? the intersection of tort immunities and the rule of joint and several liability To fairly assess whether the Arkansas General Assembly overstepped its bounds, one must begin with a short history of the problems that non-party apportionment is designed to solve. The best place to begin is in the area of workers' compensation law because this is the area where non-party apportionment issues most often arise. Also, the history of workers' compensation law demonstrates the General Assembly's history of altering the common law through legislation. Before state legislatures enacted workers' compensation statutes during the first half of the twentieth century, workers faced great obstacles to recovery for their workplace injuries.7 Tort defenses such as the fellow servant rule8 and contributory negligence9 barred most claims, and even if the claims were not barred, most workers could not afford representation.10 To assist workers in obtaining compensation for their workplace injuries, many states began passing workers' compensation statutes.11 Workers' compensation statutes required employers to procure insurance to cover their workers' accidental on-the-job injuries.12 Workers' compensation statutes changed the common law by shifting the burden of work-related injuries from individual employers and employees to the consuming public, with the concept of fault being virtually immaterial.13 Employers benefited from "exclusive remedy" provisions that granted them immunity from negligence liability.14 Workers benefited because they received timely compensation for their injuries and were no longer required to prove negligence to recover.15 Despite these gains, plaintiff advocates charged that the limitations placed upon workers' compensation benefits prevented individuals from receiving full compensation for catastrophic injuries. In the second half of the 20th century, advocates for the injured enjoyed great success in liberalizing the law of torts. Courts and legislatures nationwide altered products liability rules to make recovery easier, and most states abrogated the contributory negligence bar to recovery.16 Armed with liberalized tort rules, injured workers, most of whom had already been paid workers' compensation benefits for their injuries, began to seek additional awards from the manufacturers and suppliers of the products and equipment present in their workplace through "third-party actions" exempted from the exclusive remedy rules of workers' compensation statutes.17 At the time, most states, including Arkansas, continued to recognize joint and several liability through the common law. As a result, a manufacturer of a product or a piece of equipment faced liability for all of a worker's damages even if the negligence of that worker's employer primarily caused the worker's injury.18 To avoid such inequitable results, third-party manufacturers and suppliers sought to use Arkansas's Uniform Contribution Among Tortfeasors Act to force negligent employers to contribute to the tort awards caused by their negligence. However, in W.M. Bashlin Co. v. Smith,19 the Supreme Court of Arkansas held that the workers' compensation statutes granted employers immunity even against contribution claims brought by third-parties.20 Thus, Arkansas barred manufacturers and suppliers from presenting the issue of an Jason Earley is an associate with the law firm of Chisenhall, Nestrud & Julian, P.A. Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 19 employer's fault to a jury regardless of how overwhelming the evidence of the employer's fault might be.21 When taken together, the rule of joint and several liability and employer immunity created a system whereby a third-party only minimally involved in a worker's injuries could be held liable for 100 percent of a worker's damages.22 The same inequitable result arose in cases involving other tort immunities. Facing shifting societal concerns, such as the rising cost of insurance and a populace generally hostile to the tort system,23 state legislatures began to pass measures designed to address the unfairness of joint and several liability. Over 30 states have replaced joint and several liability with fair share liability.24 Many fair share liability states allow the jury to apportion fault to immune non-parties.25 Arkansas joined those states when it enacted the CJRA. is non-party apportionment constitutional? Over the past five years, Arkansas plaintiffs have challenged the constitutionality of non-party apportionment using a myriad of arguments. Through those battles, three primary arguments have emerged: (1) non-party apportionment violates a plaintiff's right to substantive due process; (2) non-party apportionment violates the separation of powers doctrine; and (3) nonparty apportionment exceeds the General Assembly's constitutional authority to limit a person's recovery for injury or death. Non-party apportionment does not run afoul of substantive due process26 One of the most common charges leveled against non-party apportionment is that it violates a plaintiff's right to due process because it is substantively "unfair," or more precisely, not "as fair" as the common law rule of joint and several liability.27 Plaintiffs have had some success with this argument at the trial court level in Arkansas;28 however, those decisions took little account of the standard which applies to a substantive due process review. Any substantive due process review begins by determining whether the law invades a constitutionally protected "life, liberty, or property interest."29 "[W]here no such interest exists; there can be no due process violation."30 "Merely labeling a governmental action as arbitrary and capricious, in the 20 The Arkansas Lawyer www.arkbar.com absence of the deprivation of life, liberty, or property will not support a substantive due process claim."31 Plaintiff advocates charge that non-party apportionment alters the rules of common law in a way that renders tort lawsuits unfair; however, both the United States and Arkansas Supreme Courts have long-recognized "a person has no property, no vested interest, in any rule of the common law."32 For this reason, injured persons have no constitutionally protected interest in the former rules of joint and several liability to serve as a basis for a challenge under the due process clause. But even if one assumes that an injured person has a personal or property interest in the rules of joint and several liability, the level of scrutiny which applies depends on whether the interest is a "fundamental liberty" interest or simply an "economic" interest.33 At best, a plaintiff has an economic interest in the rules of joint and several liability, and accordingly, all appellate courts which have faced challenges to non-party apportionment statutes have subjected those statutes to rational basis review.34 Non-party apportionment passes constitutional muster when viewing the "minimal scrutiny" courts apply to economic legislation in the post-Lochner era,35 and all but one appellate court which has examined the issue has ruled that non-party apportionment passes substantive due process review.36 This is the proper result because the question of whether non-party apportionment is indeed "fair" depends on one's point of view, as noted by the Arizona Supreme Court: We recognize the competing values the plaintiff advances. There may be other, and perhaps better, ways of achieving the goal of fairness in this area. However true that may be, it does not mean that the method the legislature selected is irrational. Even if the classification results in some inequality, it is not unconstitutional if it rests on some reasonable basis. There is nothing inherently fair about a defendant who is 10% at fault paying 100% of the loss, and there is no social policy that should compel defendants to pay more than their fair share of the loss. Plaintiffs now take the parties as they find them.37 There really is no objectively "fair" way to distribute the costs when an immune party causes an injury. Either the marginally responsible third-party or the injured plaintiff will bear costs that should be borne by the immune non-party, and one's view of where those costs should lie is a matter of opinion unrelated to the Arkansas or United States Constitutions. Non-party apportionment is rationally related to solving the problems caused by joint and several liability and should ultimately survive substantive due process attacks. Non-party apportionment does not violate the separation of powers doctrine Another common attack against nonparty apportionment is that it runs afoul of the separation of powers doctrine because it infringes upon the judiciary's right to set the rules of practice and procedure pursuant to Amendment 80, � 3.38 This argument has greatly proliferated since Judge William R. Wilson, Jr., of the United States District Court for the Eastern District of Arkansas endorsed it in one of the few reported cases on the CJRA's non-party apportionment provisions.39 In Billings v. Aeropres Corp., Judge Wilson found that non-party apportionment under the CJRA is a "third-party claim," not a defense to liability.40 Continuing from this premise, Judge Wilson noted that the CJRA's procedures for asserting non-party fault conflicted with the Arkansas Rules of Civil Procedure on service of process and third-party practice.41 Accordingly, Judge Wilson held that to construe the CJRA to allow non-party apportionment would result in an impermissible infringement upon the power of the judiciary to set the rules of practice for Arkansas courts.42 In a case decided approximately one year later, Judge James M. Moody, also of the United States District Court for the Eastern District Court of Arkansas, disagreed with Judge Wilson's analysis and found that non-party apportionment is a defense, not a third-party claim.43 Judge Moody noted that the Arkansas Rules of Civil Procedure do not require service of a defense, and accordingly, Judge Moody found that nonparty apportionment did not run afoul of the separation of powers doctrine. Thus, the separation of powers issue comes down to a simple question: Is non-party apportionment a claim or defense? Earley continued on page 46 Arlington Hotel, Hot Springs June 10-13, 2009 111th Annual Meeting Arkansas Bar Association Joint Meeting with the Arkansas Judicial Council Globalization and the Impact of Legal Process Outsourcing on the Practice of Law There's No Such Thing as Local -- How the Flat World is Changing the Practice of Law Thomas P. Hagen IBM Elizabeth Bowles Aristotle Practice Tip Handling Constitutional Challenges to a Statute By Teresa Wineland Since the passage of the Civil Justice Reform Act, the constitutionality of many of its provisions has been challenged in state and federal courts all across Arkansas. Attorneys who have long forgotten how to spell "constitutional law" are now being confronted routinely with the need to make or defend a challenge to the constitutionality of a state statute. This Practice Tip is not intended to address substantive arguments for or against constitutionality, but to familiarize practitioners with procedural aspects of constitutional challenges. A party challenging constitutionality of a statute has an uphill battle. Statutes are presumed to be constitutional. The party attacking a statute has a heavy burden of proving unconstitutionality. Any doubt as to the constitutionality of a statute is resolved in favor of constitutionality. Courts construe statutes as constitutional if it is possible to do so. Only where the conflict between a statute and the constitution is clear will a statute be held unconstitutional. The issue of constitutionality of a statute or ordinance is generally raised by a pleading or motion seeking declaratory relief. In the CJRA context, for example, the challenge may come in the form of a motion in limine directed to evidence of medical expenses not recoverable under the Act, or a motion to strike a notice of non-party at fault. However the constitutional issue is raised, it should be fully briefed and supported by affidavits or evidence if necessary. It should also be raised in a timely manner to allow full development and consideration by the court. Ark. Code Ann. � 16-111-106(b) provides that if a statute or ordinance is alleged to be unconstitutional, the Arkansas Attorney General shall be served with a copy of the proceeding and is entitled to be heard. While failure to notify and serve the Attorney General does not deprive a court of jurisdiction to decide constitutional issues, it is generally reversible error not to 22 The Arkansas Lawyer www.arkbar.com give the notice. Any party may give the required notice. If the Attorney General is not notified, litigants unsuccessfully challenging constitutionality risk losing the right to have the issue considered on appeal. Even litigants successfully defending constitutionality risk a reversal and remand. However, if the constitutional issue is fully developed before the trial court in an adversarial manner, failure to notify the Attorney General does not necessarily bar appellate review of the merits of the issue. The Attorney General often declines to appear and participate in response to a notice when it is evident that the issue is or will be fully presented to the court by the other parties. If a case begins as an administrative proceeding, the constitutional challenge must be made before the administrative tribunal, even if the agency lacks authority to declare the statute unconstitutional. It is not sufficient to first raise the issue on an appeal to circuit court from an administrative ruling. However, if there is no administrative proceeding instituted, the issue may be raised for the first time in a lawsuit. The challenge must be made and adequately developed before the trial court to preserve the issue for appeal. Each basis for the constitutional challenge must be squarely raised in order to argue that basis on appeal. The appropriate standard for reviewing a statute for constitutionality, either the "rational basis" standard or the "strict scrutiny" standard, must also be presented and argued. The challenge must be ruled upon by the trial judge to be preserved for appeal. It is the duty of the challenging party to obtain a ruling. A party must have standing to challenge the constitutionality of a statute. The law must be unconstitutional as applied to that particular litigant. The litigant must have suffered injury or belong to a class that is prejudiced by the application of the statute. Appeals of constitutionality rulings are usually taken to the Arkansas Court of Appeals, although the case may be reassigned, transferred or certified to the Supreme Court under Rule 1-2(b)(6) or Rule 1-2(d), Rules of the Supreme Court and Court of Appeals of the State of Arkansas. Federal court challenges to constitutionality are governed by Rule 5.1, Fed.R.Civ.P. If the government is not a party, Rule 5.1 requires a party challenging the constitutionality of a statute to promptly file a "notice of constitutional question" stating the question and identifying the pleading or motion that raises it. The notice and the document raising the question must be served on the U.S. Attorney General if a federal statute is involved, or on the state attorney general if a state statute is involved, either by certified or registered mail or electronically if the attorney general has an email address designated for this purpose. Rule 5.1 also follows 28 U.S.C. � 2403 in requiring the court to certify to the appropriate attorney general that a statute has been questioned. The attorney general may intervene within 60 days, during which time the statute may not be held unconstitutional although a constitutional challenge can be rejected. Failure of a party to file and serve the notice or failure of the court to certify the challenge does not forfeit the constitutional claim. Cases are often won or lost, and the scope of a lawsuit is often significantly affected, by rulings on the constitutionality of applicable statutes. While it is important to make persuasive substantive arguments on the issue of constitutionality, it is equally important to follow proper procedure. Rulings on constitutionality are frequently appealed, and the goal is always to obtain a favorable appellate court decision, giving the appellate courts no avenue to avoid reaching a decision on the merits. Teresa Wineland is an attorney with Williams & Anderson PLC in Little Rock, where she practices in the areas of general, business and commercial litigation. Should your clients give through their community foundation? Estate and financial advisors can consider these three reasons. We help people connect to the causes they care about most. When your clients give through their community foundation, they... Receive personalized service. We work closely with you and your clients to develop a giving approach that matches their personal interests and tax planning needs. We help integrate charitable giving within estate and financial plans and establish Donor Advised Funds named for your clients. We also facilitate anonymous giving and assist with even the most complex gift instruments. Gain local expertise. Our professional program staff monitors all areas of community need--including human services, education, the environment, healthcare, the arts and economic development. We can help your clients learn more about local agencies and programs that make a difference in the areas they care about most. Support community leadership. We invest in the long term and bring people and organizations together, convening diverse voices to address local issues and opportunities. Our business is building community. Arkansas Community Foundation can help your clients secure the maximum tax deduction, involve family members, focus on grantmaking and obtain visibility or anonymity, as desired. For more information on partnering with Arkansas Community Foundation, contact Melissa Stiles at 501-372-1116 or visit arcf.org. "The Foundation staff has a wealth of knowledge about what charities are doing the best work in different areas of Arkansas and are very helpful through their satellite offices in providing broad-based information on charities by location and field of interest." � Jim Harris, Friday Eldredge & Clark, Little Rock � 2006 COF & CFA Union Station � 1400 West Markham, Suite 206 � Little Rock, AR 72201 501-372-1116 � 888-220-2723 � arcf.org Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 23 Arkansas Supreme Court Historical Society albert Pike by Norwood Phillips and Jacqueline Wright Walker Albert Pike was one of four men who served on the Arkansas Supreme Court during the period the state was a part of the Confederacy. As the Civil War wore on in Arkansas and Union troops occupied increasingly larger areas of the state, the lives of Arkansans were disrupted by the cruelty and criminality of bushwhackers and interruptions in the operation of state and local government. During the last two years of war there were two parallel governments operating, the Union Loyalists in the northern part of the state and the Confederate government in the south. A Union Supreme Court was formed in Little Rock in 1864 but heard no appeals during the remainder of the war. The Confederate Supreme Court maintained its offices in Little Rock until August of 1863, when the Union Army advanced on Little Rock. At that time Governor Harris Flanagin ordered that the Arkansas Supreme Court be moved to Washington, the county seat of Hempstead County, where it continued to hear appeals until the end of the war. On the Confederate court at that time were Chief Justice Elbert English, Associate Justice Freeman W. Compton, and Associate Justice Hulbert F. Fairchild. Fairchild resigned from the court shortly after it moved from Little Rock to Washington. Assembling a quorum of the court proved a problem until June 8, 1864, when Governor Flanagin named Pike as Fairchild's successor. Albert Pike was a "come to the rescue" kind of guy in more ways than one. A selftaught scholar in the classics and poetry, it was his writing ability that introduced him to Arkansas society in the 1830's. On the basis of letters and poems he submitted to the Arkansas Advocate, he was invited to move to Little Rock to be its editor. Soon thereafter he purchased that newspaper and was also admitted to the bar. When in 1846 war broke out with Mexico, Pike recruited a company of cavalry and served with distinction. He served with Robert E. Lee of Virginia, then a military engineer. Lee's horse was shot out from under him at the battle of Buena Vista. Pike dismounted and made Lee take his horse while he found another for himself. Pike also served in the Civil War, but that did not turn out so well. A large part of his 24 The Arkansas Lawyer www.arkbar.com pre-war law practice was representing various tribes in the Indian Territory. When the Civil War started, he was commissioned by the Confederate government to recruit the tribes to serve in the Confederate military. He led a brigade that included two regiments of Cherokees into north Arkansas when the Union forces threatened. In March 1862, his brigade was involved in the battle of Pea Ridge. The Confederacy lost the battle, and there were ugly accusations that Pike's troops had brutalized and scalped Union troops. After the battle Pike became embroiled in a dispute with Confederate General Thomas C. Hindman, the commander of Confederate troops in Arkansas, that ended with Pike resigning his commission in November 1862. After leaving the Confederate army, Pike retired to a cabin in the Ouachita Mountains with his books and pipes to heal his wounded spirit and work on revisions of Scottish Rite degree rituals. He was there when he received Governor Flanagin's appointment to the Confederate Supreme Court. Pike's appointment was met with approval by the local newspaper, the Washington Telegraph, which stated: "We rejoice to see this Court at work." In July 1864 the court issued eight opinions that dealt with disputes that had been pending since before the war. In August the court issued a 200 page opinion written by Justice Pike that explored the duty a citizen owed to his state and to his country. That opinion was not included in the official Arkansas Reports published after the war, but Pike later self-published the opinion in a newspaper in Memphis, Tennessee, where he resided for a time. Perhaps the most significant actions taken by the Confederate court were advisory opinions regarding a special session of the General Assembly held in the fall of 1864. The court ruled that, although less than half the members appeared, the legislature could proceed despite the absence of a quorum. The Civil War in Arkansas ended in June 1865 when Confederate forces west of the Mississippi surrendered. It would be another year before Pike was granted a pardon for his support of the Confederacy. Pike was an interesting character. He took time out periodically to go hunting with his Native American clients, learned their languages, and represented them well before the federal government. One term of court when the lawyers followed the judges around the circuit, he is reported to have brought a brass band to entertain. He had a lifelong fascination with freemasonry, and it is the work with that group and the friendships made that helped him win his pardon after the war. The Masons commissioned a bronze statue of Pike that was installed in the District of Columbia where it stands to this day. additional reading: Fred W. Allsopp, Albert Pike: A Biography, Kessinger Publishing Co., Montana, U.S.A., reprint of 1928 ed. "Albert Pike," Historical Review of Arkansas : Its Commerce, Industry and Modern Affairs, by Fay Hempstead, vol. I, p. 436, 1911. Logan Scott Stafford, "The Arkansas Supreme Court and the Civil War," The Journal of Southern Legal History, vol. VII, No. 1&2, 1999. Walter L. Brown, "Albert Pike and the Pea Ridge Atrocities," Arkansas Historical Quarterly, Vol. XXXVIII, p. 345, Winter 1977. "Albert Pike," Publications of the Arkansas Historical Association, vol. 2, ed. By John Hugh Reynolds, 1908, p. 291. Norwood Phillips is a graduate of the University of Arkansas at Fayetteville. He celebrated his 50th year at the bar in 2007. He practiced law in El Dorado and enjoyed writing. This is the last article he wrote before he died on Labor Day, September 1, 2008. Jacqueline S. Wright Walker, Norwood's sister-in-law, is a graduate of the University of Oklahoma School of Law in Norman, Oklahoma. She retired as Director of the Supreme Court Library in 1998. This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society contact Rod Miller, Arkansas Supreme Court Historical Society, email@example.com; 501-682-6879. Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 25 The Ark Bar PAC: A Time of Transition by Jim L. Julian, Tony Hilliard and Dennis Zolper The Ark Bar PAC was formed as a political action committee of the Arkansas Bar Association in 2004 when it was approved by the governing bodies of the Arkansas Bar Association. It was created for the purpose of providing assistance in the election of more members of the Arkansas Bar Association to the Arkansas Legislature. Historically the Arkansas Legislature has had a significant number of attorneys both in the Senate and the House. Prior to the passage of Amendment 73 to the Arkansas Constitution (the term limits amendment), over a third of the members of the Senate were attorneys and over one-fourth of the members of the House were attorneys. Today it is quite different. In the 2009 legislative session there will be three attorneys in the Senate and eleven attorneys in the House. One might ask why the election of lawyers to the legislature is so important to the Association and to the public at large. In relating his personal experiences and observations as a lawyer/legislator, David Matthews had the following to say about lawyers in the Arkansas Legislature: "In analyzing appropriations and reviewing legislative proposals, legislators should think critically about the ultimate ramifications of their actions. Every proposed new law should be carefully scrutinized as to its need, ease of understanding, desirability and enforceability. The proper review of proposed legislation requires one to be able to think critically. No segment of society as a whole is better educated in this area than a good lawyer. ... Learning to think like a lawyer embodies all of the skills one must use in a political arena. Politics is ultimately about finding human solutions to problems created by humans. The training one receives in law school is particularly suited to that skill." The Arkansas Lawyer, Summer 2002. This is not to say that only lawyers possess the skills to be effective legislators. However, the advent of term limits appeared to impact the number of those willing to place their law practice on hold in order to serve in the legislature. The Arkansas Bar PAC was created to provide funds to attorneys who would sacrifice their time and practice for the public good. The Arkansas Bar PAC does not base its contributions to candidates on party affiliation or political philosophy. The PAC wants to help those who wish to run for the legislature. To accomplish this task the PAC needs money. The trend regarding membership and contributions to the Ark Bar PAC is disheartening. The Ark Bar PAC was created Ark Bar PAC continued on page 31 Win Business, and Get Paid in 2009! The Arkansas Bar is pleased to offer the Law Firm Merchant Account to our members. The only payment solution recommended by over 50 state and local bar associations. Accept and from your clients in compliance with ABA and State guidelines. Quickly get paid, reduce collections, and increase cash flow. Call today and begin accepting credit cards within 48 hours! A Member Benefit From Arkansas Bar Association 866.376.0950 "Affiniscape Merchant Solutions," is a registered ISO/MSP of Harris, N.A., Chicago, IL www.affiniscape.com/arkbar 26 The Arkansas Lawyer www.arkbar.com CLE CLE CLE CLE CLE CLE CLE 2009 CLE Calendar February 5th annual construction industry conference February 20, 2009 Embassy Suites, Little Rock 48th annual Natural resources institute February 26-27, 2009 Convention Center, Hot Springs March 2009 Negotiating law & life in the legal culture March 6, 2009 Arkansas Bar Center, Little Rock 32nd annual labor & employment law conference March 12-13, 2009 Peabody Hotel, Little Rock Memory skills for lawyers March 20, 2009 Springdale criminal law March 27, 2009 UALR Bowen School of Law april 2009 collaborative law April 2-3, 2009 Arkansas Bar Center, Little Rock 13th annual bankruptcy debtor/creditor law institute April 16-17, 2009 UALR Bowen School of Law Privacy law April 24, 2009 Little Rock May 2009 8th annual law day ethics May 1, 2009 Little Rock Financial institutions May 8, 2009 Comfort Inn & Suites, Little Rock 13th annual environmental law conference May 14-16, 2009 Embassy Suites, Rogers June 2009 annual Meeting June 10-13, 2009 Arlington Hotel, Hot Springs best of cle June 22-26, 2009 UALR Bowen School of Law best of cle June 29-30, 2009 Holiday Inn, Springdale For more information on cle seminars contact lynne brown or virginia hardgrave arkansas bar association 800-609-5668 or 501-375-3957 firstname.lastname@example.org or email@example.com or check out the cle PaGe CLE CLE March 12 & 13, 2009 The Arkansas Bar Association Labor & Employment Law Section presents the: 32nd Annual Labor & Employment Law Conference Michelle Kaemmerling, Chair 11.0 hours CLE Credit includes 1.0 Ethics Hour at www.arkbar.com Peabody Hotel Little Rock, AR 27 Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 2008-2009 Arkansas Bar Association Board of Governors Front Row (l to r): Richard L. Ramsay, Gwendolyn L. Rucker, Donna C. Pettus, Rosalind M. Mouser, Steven W. Quattlebaum, Jim L. Julian, Carolyn B. Witherspoon, Zane A. Chrisman; Second Row: Sean T. Keith, Karen K. Hutchins, Danny M. Rasmussen, Colette D. Honorable, Causley Edwards, Brian H. Ratcliff, Charles D. Roscopf, Jr.; Third Row: David M. Fuqua, J. Leon Johnson, Tom D. Womack, Roy Beth Kelley, L. Kyle Heffley, John T. Vines, Anthony A. Hilliard, William A. Martin, Charles L. Harwell, Brian Rosenthal; Fourth Row: Thomas M. Carpenter, Jack A. McNulty, Dennis Zolper, Richard C. Downing, Eddie H. Walker, Jr., Chalk S. Mitchell, Robert R. Estes This photo was taken at the Arkansas Arts Center by Ocken Photography. 28 The Arkansas Lawyer www.arkbar.com December 2008 Board of Governors Meeting The Board of Governors met in Little Rock on December 5th and 6th in Little Rock. Steve Quattlebaum, Chair of the Board of Governors, presided. The Board approved a new member benefit that gives the ability to accept credit card payments from clients. The Law Firm Merchant Account from Affiniscape allows a member to split money received through a credit card payment between a regular operating account and an IOLTA account. The Board also discussed a member benefit that offers a "one stop shop" for the differing types of bonds used in the practice of law. The Association currently has a proposal from one group and plans to further research other vendors providing this service. The Board approved a proposal from CLE Committee Chair Zane Chrisman to offer a discount to CLE seminars to people in practice over 40 years or over age 75. The Board approved the creation of a new Elder Law Section. The goals of the section include updating the Elder Law Handbook and serving as a resource for attorneys entering the growing field of elder law. The Board adopted a 2009 budget presented by Association Treasurer and Finance Committee Chair Bill Martin. Legislation Committee Chair Jack Davis and Jack McNulty explained a new process for receiving comments on bills from members. Frank Sewall presented the Organization and Redistricting Report updating the Board on its progress. Arkansas Bar Foundation President Brian Ratcliff presented an update on Foundation activities, including Long Range Planning. The Foundation is working with the Association to make the final agreement on the purchase of the furniture for the Bar Center. Mark Hodge, chair of the Law Related Education Committee, presented the committee's new DVD entitled "A Level Playing Field, Why the American Legal System Matters to You." Mr. Hodge explained to the Board the need for attorneys to register and to present this DVD in their area schools. Jim Julian, chair of the Long Range Planning Committee, reported plans for changes to the Association's constitution, including the separation of the Secretary/Treasurer position this spring. Fred Ursery will replace Mr. Julian as chair of the committee as Mr. Julian assumes his duties as the Association's President Elect Designee. Zane Chrisman and Vicki Vasser will serve as co-chairs for the committee. The Board passed a motion from President-Elect Donna Pettus for the addition of twelve members to the committee. Pam and Sam Gibson, co-chairs of the Website Oversite Committee, explained the immediate need for a new Web site with database integration. The committee is in the process of reviewing responses to a Request for Proposal (RFP) to accomplish that goal. The Board approved a motion to authorize the committee to finalize a contract with the chosen provider. Young Lawyers Section (YLS) Chair Gwen Rucker Yreported on the busy work schedule of the Young Lawyers Section. YLS is working on a Young Lawyers handbook and is requesting volunteers for writers or corporate sponsors. Jim Julian presented the report on the Ark Bar PAC. Carolyn Witherspoon presented her report as Delegate to the American Bar Association (ABA). She expressed her appreciation to the Board for allowing her to represent the Association to the ABA. President Mouser updated the Board on the appointment of members to the new Audit Committee: chair, Tom Womack; members, John Vines, Kyle Heffley and Chris Reed; ex-officio officers, president, executive director and treasurer of the Association. The next meeting of the Board of Governors will be held in Springdale on April 17th and 18th, 2009. 2008-2009 association officers President: rosalind M. Mouser board of Governors chair: steven W. Quattlebaum President-elect: donna c. Pettus immediate Past President: richard l. ramsay secretary-treasurer: William a. Martin Parliamentarian: J. leon Johnson Young lawyers section chair: Gwendolyn l. rucker The Board of Governors of the Arkansas Bar Association is invested with the authority to conduct the business and management of the Association. The Board is composed of seven officers, eighteen governors elected from districts, three appointed at-large governors, and seven liaison non-voting members. Six new governors are elected each year, and one of the at-large governors is appointed each year. For more information on the election process see page 6 or go to www.arkbar.com. and click on About Us for petitions. Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 29 Thank You to the 2008 Volunteer CLE Speakers and Program Planners A. Heath Abshure Mark H. Allison Margaret Alsbrook Rachel "Katie"Anderson Jess L. Askew III Joyce Bradley Babin Kristine G. Baker Judge Ben T. Barry Governor Mike Beebe Stanley M. "Jack" Bell Paul T. Bennett Garland W. Binns, Jr. Donald E. Bishop Anthony W. Black Matthew Dean Black Tim Boe Abraham Bogoslavsky Stanley V. Bond Julie B. Bowman Judge Ellen B. Brantley Brook Ann Brewer S. Renee Brida David R. Bridgforth Christopher Brockett Justice Robert L. Brown Chauncey Brummer Judge Barry A. Bryant John L. Burnett, Jr. David F. Butler Terrence Cain Ellen Carpenter William A. Cash, Jr. Michelle H. Cauley Cory DeMon Childs E. B. "Chip" Chiles IV Zane A. Chrisman Judge Charles E. Clawson, Jr. Tamra Cochran Charles T. Coleman Nicolas E. Corry Sarah M. Cotton Erin C. Couch John D. Coulter Junius Bracy Cross, Jr. Courtney C. Crouch III Gregory L. Crow Kenneth V. Crow Hardy W. Croxton, Jr. Elizabeth R. Cummings David A. Curran C. Michael Daily Thomas A. Daily K. LeAnne Daniel David A. Danielson Justice Paul Danielson Jacy M. Daugherty Lillian Dee Davenport Lamar B. Davis John A. "Jack" Davis III John A. "Zan" Davis IV 30 The Arkansas Lawyer Judge Beth M. Deere Neil Deininger Milton A. DeJesus Lyndsey D. Dilks Joel M. DiPippa Allen C. Dobson David M. Donovan Richard T. Donovan Kirkman T. Dougherty James F. Dowden Jill Grimsley Drewyor Melissa McJunkins Duke Paul F. Dumas Davis Duty Jack East III Byron M. Eiseman Stephen Engstrom Edie Renee Ervin Judge Audrey R. Evans Harold J. Evans Jamie Leigh Ewing Andrew B. Faulkner Judge John N. Fogleman Lynn Foster William E. Foster Judge Timothy Davis Fox Candace A. Franks Byron L. Freeland G. Spence Fricke R. Ray Fulmer II David M. Fuqua Donna S. Galchus Kenneth S. Gallant Marty Garrity David Allan Gates Timothy G. Gauger Pamela B. Gibson Judge R. Bynum Gibson Sam E. Gibson Melinda R. Gilbert Nancie M. Givens Charles W. Goldner Jack W. Gooding Kathy W. Goss David A. Grace Julie D. Greathouse Tene' L. Green Tina R. Green Judge Wendell L. Griffen Judge Rita W. Gruber Karen Sharp Halbert John Wesley Hall, Jr. Judge Barbara A. Halsey Frank S. Hamlin Joel G. Hargis Melva Harmon Rep. Steve P. Harrelson Morril H. Harriman, Jr. Sandra Y. Harris Patricia Sievers Harris www.arkbar.com Raymon B. Harvey Jeffrey W. Hatfield Richard F. Hatfield William D. Haught Kathryn Hazelett Judge Marcia R. Hearnsberger Leon Helms Judge Jimm Larry Hendren J. Blake Hendrix Mark Murphey Henry Judy S.Henry Robert L. "Skip" Henry III Mauricio A. Herrera Carrol Ann Hicks Anthony A. "Tony" Hilliard Gwendolyn D. Hodge Ka Tina R. Hodge Denise R. Hoggard Cyril Hollingsworth Robert H. Holmes Judge J. Leon Holmes W. Gary Holt Robert M. Honea Colette D. Honorable Gregory M. Hopkins Tim Humphries Martha G. Hunt Justice Annabelle C. Imber Jill R. Jacoway Judge John E. Jennings Gary D. Jiles Senator David E. Johnson J. Leon Johnson Judge Kirk D. Johnson Phyllis Johnson Carlton D. Jones Jamie Huffman Jones Matthew R. Jones Robert S. Jones Sean T. Keith Judge Tom J. Keith Valerie L. Kelly Judson C. Kidd Craig S. Lair Theodore C. Lamb Judge Michael R. Landers Dana M. Landrum Judge David N. Laser John C. Lessel Stark Ligon James H. Longino Susan K. Lourne Patty W. Lueken Senator James C. Luker Rep. Bruce D. Maloch Drake Mann Leon Marks Judge D. Price Marshall, Jr. Charles R. Martin Mark L. Martin Mark T. McCarty Sidney H. McCollum Atty. Gen. Dustin B. McDaniel Lucinda McDaniel Jeffrey E. McKinley Karen H. McKinney Jerald "Cliff" McKinney II James A. McLarty III Phillip H. McMath Jack A. McNulty Judge Brian S. Miller Philip Miron Judge James G. Mixon Judge James M. Moody Harry Truman Moore Jeffrey H. Moore John E. Moore Michael S. Moore Rodney P. Moore Judge Richard N. Moore, Jr. Richard Vincent Morris Rosalind M. Mouser Wm. Kirby Mouser Dean Cynthia E. Nance J. Richard Newland, Jr. Todd L. Newton James E. Nickels James E. O'Hern III W. Lance Owens Annabelle Patterson Nicholas H. Patton John B. Peace John F. Peiserich Eric L. Pendergrass G. Alan Perkins Harrison M. Pittman John B. Plegge Jason D. Prather Charles C. Price Philip R. Principe Joseph H. Purvis Jeff Puryear Steven W. Quattlebaum Richard L. Ramsay Olan W. "Butch" Reeves, Jr. W. Michael Reif Thomas E. Robertson, Jr. J. Mark Robinette, Jr. Brian M. Rosenthal Jeff Rosenzweig Kent J. Rubens* Gwendolyn L. Rucker Bianca M.G. Rucker Kathy W. Searcy Linda D. Shepherd* Stephen M. Sheppard Scotty M. Shively Brock Showalter James M. Simpson Judge Hamilton H. Singleton Graham F. Sloan David A. Smith Derrick W. Smith James W. Smith Judge Kim M. Smith Robert Todd Smith Steven T. Smith Jason R. Springman L. Scott Stafford Kimberly Steward-Hughes Kathryn A. Stocks Judge John F. Stroud, Jr. Jan William Sturner Tim Tarvin Jennifer Jones Taylor Judge Richard D. Taylor Tasha Taylor Mary Ellen Ternes Jillian E. Thayer A. Jan Thomas, Jr. Deborah W. Thomas Mary Thomason Alfred F. "Tom" Thompson James W. Tilley Geoffrey B. Treece Lonnie C. Turner Todd M. Turner Cathy Underwood Jessica B. Vaught Bart F. Virden Jack Wagoner Danyelle J. Walker Eddie H. Walker, Jr. E. Gregory Wallace, Jr. Judge Joyce Williams Warren William C. Warren, Jr. John D. Dewey Watson Michael M. Watts Wm. Eric West Coleman Westbrook, Jr. Frederick S. Wetzel III Bud B. Whetstone Bill J. Wilde James H. Williams Renee S. Williams Rep. Robert D. Wills, Jr. Judge William R. Wilson, Jr. Reba M. Wingfield Tom D. Womack Carol L. Worley Judge Susan Webber Wright Leigh Anne Yeargan Dan C. Young Danna Jo Young H. Wayne Young, Jr. * Deceased ArkBar PAC continued from page 26 as a part of the recommendations made by the Bar Association's Legislative Task Force. The task force examined the legislative program of the association to identify ways in which the Bar could improve its impact on the law making process in Arkansas. Since its formation in 2004, the Ark Bar PAC has solicited members and contributions for three full election cycles. In 2004, the first year of operation of Ark Bar PAC, modest numbers of members and amounts of contributions were generated as would be expected in the initial year of the operation of a political action committee. The membership in the committee grew in 2005 and 2006, as did the contributions. However, in 2008, another election year, a disturbing trend began to appear reflecting lower contributions and lower membership in the Ark Bar PAC. In order to continue to have a political action committee that is relevant to the political process, it is imperative that we reach a larger number of our members and obtain contributions from those members to assist in the process of electing more lawyers to the Arkansas legislature. The Arkansas Bar PAC has made contributions to all members of the Arkansas Bar Association who have run for the legislature and those members have always called or written to express their appreciation for your contribution. If it is to remain a viable entity, much greater support must be generated from the Arkansas Bar membership, both as to membership participation and dollars contributed to the PAC. The minimum amount is only $30 per year but you can give more. The membership designation and contribution amount can be added to your annual membership renewal by checking off a PAC contribution on your membership renewal form. You may also contact the office of the Bar Association and sign up for PAC membership at any time. We sincerely hope you will consider membership and a contribution to the Ark Bar PAC today. Your Name in Print Vol. online 2008 Fall com No.4, rkbar. 43, w.a at ww Arkan blic atio n of the sas Bar Assoc iation A pu Jim Julian has served as Chair of the ArkBarPAC since 2004 and will be replaced by Dennis Zolper as Chair in 2009. Tony Hilliard has served as Secretary/Treasurer since its inception. For information on submitting articles for publication go to www.arkbar.com and click on The Arkansas Lawyer or email firstname.lastname@example.org Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 31 Judicial Disciplinary Actions Judicial Disciplinary Actions are written and provided by the Judicial Discipline and Disability Commission. Full text is available online at http://www.state.ar.us/jeac/ letter of reprimand November 21, 2008 Honorable L.T. Simes 1st Division Circuit Court P.O. Box 2775, West Helena, AR 72390 RE: Letter of Reprimand, Case #07-259 Dear Judge Simes: At the conclusion of its March 21, 2008 meeting, the Judicial Discipline & Disability Commission voted to proceed to a Disciplinary Hearing finding sufficient probable cause to support a violation of the Judicial Canon as alleged in Case #07-259. Upon entering into this agreed Letter of Reprimand the following findings are undisputed: In Case #07-259, the Commission found that you were an elected circuit court judge at all times relevant to the matter under consideration. The Commission also found that in the case of Crumbly v. Willis, you failed to enter an Order promptly and did not accurately calculate the length of time that this case had been on your docket ready for adjudication by the court. This matter arose from an election contest and a prompt, efficient decision was required. You have promised to make prompt rulings in accordance with Canon 3B(8). The Commission finds that you have been previously admonished in JDDC case #04-206 and given a public informal adjustment in JDDC #03-178. For your conduct in violating the above provisions of Canon 3B(8) of the Code of Judicial Conduct, it is the decision of the Commission that you be reprimanded. This public reprimand constitutes adequate discipline and no further action is warranted. Further discipline may occur if the Judicial Discipline & Disability Commission finds similar violations in the future. This Commission action is public information. BY DIRECTION OF THE COMMISSION: David A. Stewart, Executive Director letter of reprimand November 21, 2008 Honorable Mary McGowan 9th Division Circuit Court 401 W. Markham, Rm 320, Little Rock, AR 72201 RE: Letter of Reprimand, Case #05-150, Case #08-290 Dear Judge McGowan: The Judicial Discipline & Disability Commission has considered the allegations and the results of its preliminary investigation in case #05150 and case #08-290. In both of these complaints, the Commission has now made the following findings and dispositions which you do not dispute. In case #08-290, the Commission found that you were an elected circuit court judge at all times relevant to the matter under consideration. The Commission also found that in several cases in the past, you failed to decide matters promptly and did not accurately calculate the length of time that several matters had been on your docket ready for adjudication by the court. In approximately 7 instances, you failed to report cases that had been pending for more than 90 days as required under Administrative Order #3. All of these pending cases are either now closed or the previously pending motions have been adjudicated and need not be reported on your 90 day list. You have pledged to comply with Administrative Order #3 in the future. This letter resolves any and all known failures and lapses of prompt and efficient disposition of your cases to date. In case #05-150, the Commission found that on several occasions prior to May 2005, you had lapses in demeanor while on the bench. Specifically, you were not always patient and courteous to litigants and lawyers and others with whom you deal in an official capacity in violation of Canon 3(B)(4). For your conduct in violating the above provisions of the Code of Judicial Conduct, it is the decision of the Commission that you be reprimanded. This public reprimand constitutes adequate discipline and no further action is warranted. Further discipline may occur if the Judicial Discipline & Disability Commission finds similar violations in the future. This Commission action is public information. BY DIRECTION OF THE COMMISSION: David A. Stewart, Executive Director We have countless success stories. But we do our work confidentially so the stories stay with us. We have many stories about judges and lawyers who struggle with alcohol/ drug abuse or addiction and other compulsive disorders. There are also stories of depression, stress, and anxiety. Competition, constant stress, long hours, and high expectations can wear down the most competent and energetic judge or lawyer. Since 2000 Arkansas Judges and Lawyers Assistance Program (JLAP) has been helping legal professionals with confidential support guaranteed by the Supreme Court of Arkansas. Our professional staff can help � whether you need help or are concerned about a colleague or a family member who needs assistance. We have a new address... but we remain confidential Call or email and come see us in our new office at 18 Corporate Hill Drive in Little Rock. Web site: http://www.arjlap.org E-mail: email@example.com Main office: 501-907-2529 32 The Arkansas Lawyer www.arkbar.com Lawyer Disciplinary Actions Final actions from October 1, 2008, through December 31, 2008, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct. Full text documents are available on-line at http://courts.arkansas.gov and by entering the attorney's name in the attorney locater feature under the "Attorney" link on the home page. [Note: "Model" Rules refers to the Rules of Professional Conduct as they existed in Arkansas prior to May 1, 2005. "Arkansas" Rules refers to the Rules as they exist in Arkansas from May 1, 2005.] surreNder: BILL R. HOLLOWAY, Bar No. 65022, formerly of McGehee, Arkansas, in No. 081411, petitioned to surrender his Arkansas law license after entering a guilty plea, to two felony offenses of mail fraud involving funds Holloway converted to other use from one client's settlement in case No. 08-CR-411 on November 21, 2008, in United States District Court in the Eastern District of Arkansas. He violated Arkansas Rule 1.15 (trust account misconduct), 8.4(b) (criminal acts), and 8.4(c) (dishonest conduct). The Arkansas Supreme Court accepted his surrender by Per Curiam issued December 19, 2008, and disbarred him. Holloway had been a long-time solo personal injury practitioner in Southeast Arkansas. In his Petition to Surrender Law License, he stated that over the past several years he had knowingly converted and misappropriated to his personal use funds from settlements of a number of his clients, in part to support an expensive lifestyle. He did not deposit into his attorney trust account all funds belonging to clients that were required to be placed there. He failed to pay over to several clients funds to which they were entitled, after persuading the client to leave part of a settlement with him to "invest" and pay them a regular monthly amount on their investment and its earnings. In executing these schemes, he admitted he was basically paying older clients from funds he obtained from new settlements for other clients. He also attached to his petition a listing of a number of other clients in similar "missing settlement funds" situations with him. His Petition listed four specific clients whose funds he misappropriated and acknowledged the amount of missing funds for them alone could be around $440,000. He admitted he had received a fee of $140,000 to represent a client charged with capital murder in mid-2007, in a case in which the state was seeking the death penalty, and that client's defense funds were gone. He admitted he gave an auto dealership a bad check for the sales price difference of $4,350 on a car swap in November 2007. As this matter was pending in 2008, someone paid off and picked up this check for him before it was to be turned over to the state criminal authorities. He acknowledged that he now has no assets other than possibly his Social Security benefits and that he is financially insolvent. He agreed that if he should later be found to have unencumbered assets, they may be turned over to the Supreme Court Client Security Fund or any other proper court-supervised authority to attempt to make restitution to the clients who have suffered financial losses due to his actions. susPeNsioN: DON C. COOKSEY, Bar No. 74199, of Texarkana, Texas, who is licensed in both Arkansas and Texas, had his Arkansas law license suspended for three (3) months, effective November 25, 2008, and was ordered to pay $1,500 restitution for violation of Rules 1.1, 1.3, 1.4(a)(3), 3.4(c), and 8.4(d) by Committee Findings & Order filed November 25, 2008, on a complaint filed by Tracy McRaven in Case No. CPC 2008�028. Additionally, for his failure to respond to the formal complaint, Cooksey was reprimanded and fined $1,000. In November 2006, Tracy McRaven paid Mr. Don Cooksey $1,500 to represent him in a domestic relations case in Hempstead County Circuit Court. A hearing was initially scheduled for May 9, 2007. On that date, Mr. McRaven took off work without pay only to discover that the matter had been rescheduled by Mr. Cooksey for June 7, 2007. On the morning of June 7, thirty minutes prior to the scheduled hearing, Mr. Cooksey's office informed Mr. McRaven that they had again rescheduled the court date to June 20, 2007, due to conflicts in Mr. Cooksey's schedule. On June 20, 2007, Mr. McRaven appeared for the hearing, but Mr. Cooksey did not appear. The hearing took place absent Mr. Cooksey, who was held in contempt and ordered to repay the $1,500 in legal fees paid to him by McRaven. Following the Committee's decision, Cooksey filed a Motion for Reconsideration, which was denied. He has since filed a Request for Public Hearing, Notice of Appeal, and Motion to Stay Suspension. The Committee denied the business valuation Forensic accounting economic loss divorce accounting, tracing, appraisal commercial damages, agricultural damages Certified Public Accountant Certified Fraud Examiner Accredited Senior Appraisers Court-Appointed Expert Testimony Fair Pricing Schwartz & Associates LLC 11510 Fairview Road, Suite 100 Little Rock, AR 72212-2445 501-221-9900 / 501-221-9292 fax Steven F. Schroeder JD, MCBA, ASA Steve@SchwartzandAssociatesLLC.com Richard L. Schwartz CPA, MCBA, ASA, ABV, CFE Dick@SchwartzandAssociatesLLC.com Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 33 Lawyer Disciplinary Actions request for public hearing and the motion for stay. The direct appeal is currently pending. On December 15, 2008, Cooksey repaid McRaven the court-ordered $1,500. BARRY J. JEWELL, Bar No. 84081, of Little Rock, who is licensed in both Arkansas and Texas, had his Arkansas law license placed on interim suspension on December 1, 2008, in Committee case No. CPC 2008-102, primarily as a result of his being found guilty at a jury trial in United States District Court case No. 07-CR-103 on August 13, 2008, of one felony count of aiding and abetting tax evasion. He is awaiting sentencing at this time. By Order filed September 23, 2008, Chief United States District Judge Leon Holmes suspended Jewell's privilege to practice law in the United States District Court, Eastern District of Arkansas. It is anticipated that state disciplinary charges will be filed against Mr. Jewell soon, arising out of this federal criminal jury adjudication and other matters revealed in his federal prosecution. R. TED VANDAGRIFF, Bar No. 91028, of Sherwood, Arkansas, had his Arkansas law license suspended for twelve (12) months, effective October 1, 2008, by Consent Findings & Order filed that date in Case No. CPC 2007-094, for violation of Rules 1.15(a) (1), 3.4(c), 5.5(a), and 8.4(c), on a complaint filed by Teresa Wineland. Mr. Vandagriff's Arkansas law license was administratively suspended on November 28, 2006, by the Arkansas State Board of Law Examiners due to his non-compliance with the requirements of Rule 6 of the Arkansas Rules for Minimum Continuing Legal Education. He failed to pay his 2007 Arkansas Supreme Court law license fee by March 1, 2007, as required by Rule VII of the Rules Governing Admission to the Bar. As a result, his law license was administratively suspended on March 2, 2007, and his license has not been reinstated by his payment of the license fee. Mr. Vandagriff represented the Fields against the Calhouns, represented by Ms. Wineland, in a case in Garland County Circuit Court before Judge David Switzer. A hearing on motions, at which Mr. Vandagriff appeared and participated for the Fields, occurred on March 29, 2007. In preparation for trial on August 6, 2007, Ms. Wineland first learned of Mr. Vandagriff's suspension status on or about August 1, 2007, and brought it to the attention of Judge Switzer. Judge Switzer contacted Mr. Vandagriff and gave him until late Friday, August 3, 2007, to resolve his suspension issue for the upcoming trial, which he was not able to do. The trial had to be continued. Mr. Vandagriff also filed suit in Garland County Circuit Court on February 22, 2007, for the 34 The Arkansas Lawyer www.arkbar.com Medical Malpractice Record Review Providing services for the attorney client in the area of medical malpractice record review at more affordable prices. Analysis completed in 7-10 days. For fees, resume and work product sample contact: Terry R. Smith 501-590-0762 P.O. Box 1, Avon, OH 44011 or visit www.terrysmith.com Fields against Darren and Jennifer Sorrells, who are not represented by Ms. Wineland. This case is assigned to Circuit Judge John Homer Wright. Mr. Vandagriff lawyered actively in both cases during the period when his law license was in suspension. Starting in July 2005, Mr. Vandagriff wrote seven (7) checks from his attorney trust account, five of which appear to be directly for personal expenses, an impermissible use of a trust account. This practice came to the attention of the Office of Professional Conduct (OPC) by a series of automatic "overdraft notices" when these seven checks were presented against insufficient funds in his trust account. Five of the checks were returned "unpaid," and two were paid. rePriMaNd: WILLIAM McNOVA HOWARD, JR., Bar No. 87087, of Pine Bluff, was reprimanded and fined $1,000 by Committee Findings & Order filed December 29, 2008, in No. CPC 2008-036, on a referral from the Arkansas Supreme Court, for violation of Rules 1.3 and 8.4(d). The sanction reflected his overall disciplinary history of similar appellate case problems. Mr. Howard represented Marcus Young in a Rule 37 Petition in Drew County Circuit Court, which was denied. Mr. Howard filed a Motion for Reconsideration, which was deemed denied on May 31, 2007. On June 6, 2007, Mr. Howard filed a Notice of Appeal ELECTRICAL ACCIDENTS Paul D. Mixon, Ph.D., P.E. Engineering Consultant P.O. Box 3338 State University, AR 72467 (870) 972-2088 (870) 972-3948 FAX firstname.lastname@example.org email@example.com � � � � � � � � AccidentInvestigationandAnalysis ContactCasesandElectrocutions ElectricalInjuries PropertyandEquipmentDamage ElectricalFires SafetyCodeCompliance ExpertWitness DisputesSettled Lawyer Disciplinary Actions which only referenced the denial of the Motion for Reconsideration. Mr. Howard then filed the record with the Arkansas Supreme Court Clerk on June 15, 2007. Young's brief was due to be filed by July 25, 2007. Mr. Howard asked for two briefing extensions. The court designated the second extension of time as 89671 Handshake Ad:Layout 1 7/10/08 a final one, with a deadline of September 8, 2007. On September 10, 2007, Mr. Howard tendered a brief to the clerk. He was informed that he needed to file a Motion for Belated Brief as the brief was not timely tendered. No response from Mr. Howard to the letter was received by the clerk. On November 8, 2007, 9:55 AM Page 1 Put the Strength of Arkansas' Most Respected Mediators & Arbitrators to Work for Your Clients Jack Bell Jack Davis Frank Hamlin Bob Hornberger John Jennings Richard Lusby Sid McCollum Mary Schneider John Stroud, Jr ADR I N C Alternative Dispute Resolution 1501 N. University Ave., Prospect Bldg, Ste. 420, Little Rock, AR 72207 (501) 376-2121 1116 South Walton Blvd.,Suite 111, P.O. Box 1826, Bentonville, AR 72712 (479) 271-2237 404 North Seventh Street, P.O. Box 8064, Fort Smith, AR 72902 (479) 783-1776 405 Walnut, Texarkana, AR 71854 (870) 772-0718 301 W. Washington, Jonesboro, AR 72403 (870) 932-0900 80 Monroe Avenue, Brinkley Plaza, Suite G1, Memphis, TN 38103 (901) 743-1055 www.mediateadr.com the Arkansas Supreme Court Clerk wrote Mr. Howard and advised him that a brief on Mr. Young's behalf was tendered on September 10; that he needed to file a Motion for Rule on the Clerk; and that no response had been received. Mr. Howard was given ten days from the date of the letter to file a brief or motion in the matter. On December 17, 2007, Mr. Howard filed a Motion to File Belated Brief. On January 24, 2008, the Arkansas Supreme Court granted the Motion to File Belated Brief and referred the matter to the Committee on Professional Conduct. On February 25, 2008, the State of Arkansas filed a Motion to Dismiss, stating that the appeal must be dismissed as Mr. Howard did not file a Notice of Appeal within thirty (30) days of the April 3, 2007, Order denying the Rule 37 Relief. Rule 37.2(d) states that "[t] he decision of the court in any proceeding under...[R]ule  shall be final when the judgment is rendered. No petition for rehearing shall be considered." As the Notice of Appeal was not filed until June 6, 2007, it was untimely. On March 13, 2008, Mr. Howard tendered an Opposition to Motion to Dismiss Appeal. Rule 2-1(d) of the Rules of the Arkansas Supreme Court require that responses be filed within ten calendar days of the filing of a motion. Mr. Howard's response was received seventeen days after the filing of the Motion to Dismiss Appeal and was, therefore, late. On April 17, 2008, the Arkansas Supreme Court issued a Per Curiam Order granting the State's Motion to Dismiss Appeal, stating the "deemed denied" appellate rule does not apply in Rule 37 Petitions pursuant to Rule 37.2(d). Mr. Howard stated that he was unaware of Rule 37.2(d), which provided that no petition for rehearing shall be considered, and that he did not know that the "deemed denied" appellate rule did not apply in this type of case. SHAWN A. OVERTON, Bar No. 2001120, of Jacksonville, was reprimanded for violation of Rules 1.8(j) and 8.4(c) by Committee Consent Findings & Order filed December 12, 2008, on a self-referral by Overton that became Case No. 2008-078. On December 11, 2007, Overton, a Captain with the Army Judge Advocate General's Corps, self-reported to the Office of Professional Conduct (OPC) that the Department of the Army had charged him with adultery, dereliction of duty, and making false official statement in an investigation under Article 15, NonJudicial Punishment. On June 17, 2008, the Department of the Army notified OPC of the same matters. The findings of the Army investigation were that (1) Overton, a married 35 Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer Lawyer Disciplinary Actions person, engaged in sexual relations in Missouri with his female legal assistance client, who was a service member's spouse; (2) Overton's conduct reflected adversely on his honesty, trustworthiness or fitness; and (3) Overton knowingly made false official statements. The Department of the Army issued Overton a reprimand, suspended him from performing Judge Advocate duties, revoked his 27(b) (2) certification to serve as trial or defense counsel for general or special courts-martial, and indefinitely suspended him from practice in Army courts-martial and in the U.S. Army Court of Criminal Appeals, even as a civilian attorney. The Department of the Army has also taken action to involuntarily separate Overton, causing him to lose his job and any future military pension or other benefits. This is the first Arkansas case in which a violation has been found of Rule 1.8(j), the rule effective May 1, 2005, specifically thereafter prohibiting sexual relations between attorneys and clients. cautioN: JOHN FRANK GIBSON, JR., Bar No. 66021, of Monticello, was cautioned and fined $1,500 for violation of Rules 1.1 (competence in representation of a client) and 8.4(d) (conduct prejudicial to the administration of justice) by Committee Consent Findings and Order filed November 24, 2008, on a referral from the Arkansas Supreme Court in Case No. CPC 2008-039. The Arkansas Supreme Court referred Mr. Gibson to the Committee in a Per Curiam granting his Motion for Rule on the Clerk in the matter of Randolph Morris v. State of Arkansas, CR08-298. Mr. Gibson obtained an Order of extension of time to file the record on appeal, but the Order was for a period of time outside the maximum of seven months allowed by Court rule. Mr. Gibson believed that the Order was timely because it was from the Amended Judgment not the original Judgment. The Supreme Court held that the Amended Judgment was only to correct a clerical error and therefore Mr. Gibson was actually appealing from the original Judgment which was the conviction of his client. Following the ruling, Mr. Gibson filed a Motion for Reconsideration. The Court denied the Motion. Mr. Gibson explained that prior to the Court's Per Curiam referring him to the Committee and granting his Motion for Rule on the Clerk, he was unaware of any case that interpreted Rule 5(b)(2) as being applicable to the judgment identified in the first notice of appeal and inapplicable to certain types of amended judgments. Mr. Gibson said he would have readily admitted his fault had he been aware of any such cases. LARRY J. HARTSFIELD, Bar No. 69030, of Little Rock, was cautioned for violation of Rules 1.7(a) (conflict of interest-current clients) and 1.13(g) (organization as a client) by Committee Findings and Order filed November 13, 2008, on a complaint filed by Bennie Jean White in Case No. CPC 2008-045. Detection Systems, Inc. (DSI) is an Arkansas corporation duly organized and authorized to do business in Arkansas since 1976. At all relevant times, James Bottoms and Bennie Jean White were DSI shareholders. Mr. Hartsfield served as corporate attorney for DSI for many years. On February 2, 2006, Mr. Hartsfield brought suit on behalf of DSI against Bennie Jean White in Pulaski County Circuit Court, seeking injunctive relief against Ms. White, alleging interference with business relations and breach of fiduciary duty. White filed a Verified Answer, Counterclaim/Third Party Complaint, and Request for Interlocutory Injunctive Relief. On behalf of James Bottoms personally, Mr. Hartsfield answered White's counterclaim and filed a counterclaim against White. Hartsfield also filed a lis pendens. White filed a reply to Bottoms's counterclaim and a Motion to Dismiss. The court dismissed DSI's complaint and request for temporary restraining order. In her First Amended and Verified Counterclaim for derivative suit and renewed motion for injunctive relief against James Bottoms, Bennie Jean White asserted that Mr. Hartsfield was the corporate attorney for DSI and owed a fiduciary duty to DSI, thus preventing him from representing Bottoms in a dispute to determine ownership interests he had in DSI. She further asserted that she was a former client of Mr. Hartsfield in DSI-related and other business matters, as he actively represented her, Bottoms and DSI in property, corporate, business, and other matters and maintained the confidential information of every party involved. Mr. Hartsfield moved to non-suit, and the court granted the motion in November 2006. RICKEY H. HICKS, Bar No. 89235, of Little Rock, was cautioned, fined $1,000, and ordered to make restitution in the amount of $328, for violation of Rules 8.1(a) (false statement in a disciplinary proceeding), 8.4(c) (dishonesty, fraud, deceit or misrepresentation) and 8.4(d) (conduct prejudicial to the administration of justice) by Committee Findings and Order in Case No. CPC 2008-043 filed October 21, 2008. In addition, Mr. Hicks failed to respond to the disciplinary complaint. He was cautioned and fined $500 for the failure to respond pursuant to Section 9.C(1) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys Bart F. Virden 14 Years on the Arkansas Supreme Court Committee on Professional Conduct. Now representing lawyers. Your mother told you there were places where you should not go alone 501.354.0125 36 The Arkansas Lawyer www.arkbar.com Listen to your mother firstname.lastname@example.org 105 So. Moose St. Morrilton, AR 72110 Lawyer Disciplinary Actions at Law. A complaint was filed by Vickey Hedgecock of Hedgecock Court Reporting. Mr. Hicks verbally hired Ms. Hedgecock to provide him a copy of a deposition in federal civil litigation, wherein he was appointed to represent the Plaintiff. He also verbally hired Ms. Hedgecock to report a deposition he was taking in the litigation. Mr. Hicks failed to pay the bill in spite of invoices and reminders. In an effort to resolve the matter without discipline, Mr. Hicks was written about the matter by the Office of Professional Conduct. Mr. Hicks advised that he was appointed to the Plaintiff in the matter wherein the Court Reporter was hired and asserted that he needed to file a request with the Court in order to obtain payment to pay the Court Reporter and further, that he would do so. Mr. Hicks did not do so. Mr. Hicks also wrote later that he would just send a check to the Court Reporter, and he did not do that either. ROBERT N. JEFFREY, Bar No. 89110, of Camden, was cautioned for violation of Rules 1.3, 3.4(c), and 8.4(d) by Committee Findings & Order filed December 30, 2008, on a Per Curiam Order Complaint in Committee Case No. CPC 2008-093. Mr. Jeffrey represented Edward McWilliams in a criminal case in Union County Circuit Court where McWilliams was convicted of Possession of a Firearm By Certain Persons in November 2004, and placed on probation for five years. On March 4, 2008, Mr. McWilliams' probation was revoked and he was sentenced to a term of forty-eight months in the Arkansas Department of Correction. On March 14, 2008, an Amended Judgment and Commitment order was entered to correct a clerical error. Mr. Jeffrey filed a notice of appeal on April 7, 2008, from the original Uncover new and previously unknown facts to aid in your defense case Find unknown witnesses who can help provide new information Find uncovered or undisclosed evidence Locate experts who can assist with technical defenses Critical reviews of law enforcement investigations to uncover their errors Discover professional investigator's approach to defend your client Creatively develop case details that bring justice for your clients Experienced, clear and standardized (and proven) report formats Interviews � Surveillance � Asset Searches � Fraud Investigations � Criminal & Civil Defense � Plaintiffs Certified Fraud Examiner Experienced Legal Investigator Paralegal AR Lic. A20040061 501-372-2202 1-501-605-0360 (24 hr) www.arkansas-investigations.com Judgment and Commitment Order filed on March 4, 2008. On June 23, 2008, Mr. Jeffrey tendered the record from the lower court to the Arkansas Supreme Court Clerk. The clerk refused to file the record as the notice of appeal was filed more than thirty days following the entry of the judgment and commitment order which the notice of appeal stated was being appealed. Rule 4(a) of the Rules of Appellate Procedure�Civil, requires that a notice of appeal be filed within thirty (30) days from the entry of the judgment, decree or order appealed. As the Judgment and Commitment Order being appealed from was filed on March 4, 2008, a notice of appeal was due to be filed on or before April 3, 2008. Mr. Jeffrey was advised that he filed the notice of appeal late and needed to file a Motion for Belated Appeal. On June 23, 2008, Mr. Jeffrey filed a Motion for Rule on the Clerk. On September 4, 2008, the Arkansas Supreme Court treated the motion as a motion for belated appeal, allowed the appeal to proceed, and issued a Per Curiam Order referring the matter to the Office of Professional Conduct. Mr. Jeffrey admitted to the facts as stated herein and that his conduct violated the Rules alleged in the Office of Professional Conduct's complaint. THURMAN A. RAGAR, JR., Bar No. 70009, of Van Buren was cautioned and fined $500 for violation of Rules 1.1 and 8.4(d) by Committee Findings & Order filed November 25, 2008, on a Per Curiam Order Complaint in Case No. CPC 2008-062. On December 4, 2007, the Crawford County Circuit Court filed its Judgment and Commitment order that sentenced William D. Morrison as an habitual offender to 240 months' imprisonment for failure to register as a sex offender. An Amended Judgment and Commitment Order was entered on December 13, 2007. Pursuant to Rule 5 of the Arkansas Rules of Appellate Procedure-Civil, the record was due to be filed within ninety (90) days from the filing of the first Notice of Appeal unless the time was extended by circuit court order. The notice of appeal was timely filed on December 5, 2007. TSCHIEMER LEGAL BRIEFING QUALITY, CONSISTENCY AND REASONABLE PRICES: HANDLING ALL YOUR BRIEFING NEEDS ___________ Robert S. Tschiemer, Esq., Ark. Bar 84148 43001 Hwy. 89 N. Mayflower, AR 72106 (501) 951-3303, (fax) (501) 325-1235 email@example.com www.tschiemerlegalbriefing.com Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 37 Lawyer Disciplinary Actions A request for an extension of time was made, and the circuit court extended the time for filing the record. The Supreme Court Clerk declined to lodge the record due to a failure to comply with Ark. R. App. P.-Civ. 5(b)(1) (C). That rule requires that all parties have the opportunity to be heard on the motion for extension of time, either at a hearing or by responding in writing. On May 13, 2008, Mr. Ragar filed a motion for rule on clerk. The Arkansas Supreme Court granted Mr. Ragar's motion for rule on clerk and forwarded to the Committee on Professional Conduct a copy of its opinion. The Court subsequently granted Mr. Ragar's motion, as public defender, to withdraw as attorney in the direct appeal. FREDERICK S. SPENCER, Bar No. 75120, of Mountain Home was cautioned and fined $250 for violation of Rules 1.3, 3.3(a), and 8.4(d), by Committee Consent Findings & Order filed October 21, 2008, on a Per Curiam Order Complaint in Case No. CPC 2008-030. On November 26, 2007, the Arkansas Supreme Court granted Mr. Spencer a seven-day extension of time in which to file the brief in Case No. 07-1078. Mr. Spencer subsequently received a thirty-day extension requiring tender of his appellate brief on or before January 2, 2008. Unable to meet the January 2, 2008, deadline, Mr. Spencer filed another request for extension of time, but it was untimely. On January 7, 2008, Mr. Spencer filed an "Unopposed Motion to File Belated Brief," in which he requested a fourteen-day extension to file his brief. Mr. Spencer indicated in his motion that it was unopposed, and the Court granted the Motion to file Belated Brief on January 24, 2008. On January 29, 2008, appellees filed a joint motion requesting reconsideration of the Court's decision to grant the Motion to File Belated Brief, asserting not only that the motion was opposed but also that they had not been served with the motion as shown in Mr. Spencer's certificate of service. Mr. Spencer did not respond to the joint motion until after the Court made a specific request for him to do so. In his response, Mr. Spencer stated that his paralegal sent the Motion for Belated Brief by postal mail and that appellees had been asked if they had any objection to the extension. As pointed out by the Court in its Per Curiam opinion of February 28, 2008, Mr. Spencer specifically set forth in his response that, immediately upon appellees' approval of the extension Appellant filed the Motion to file Belated Brief and assumed that since Appellees had no objection to the extension of time to file the Brief, they would have no objection to the filing of the Appellant's Motion to File Belated Brief since Appellant was not asking for any more time than had been discussed with the Appellees, and was only changing the pleadings from a Motion for Extension of time to a Motion to File Belated Brief because of the delay caused by the United Parcel Service. After noting that a motion for extension of time is a different pleading than a Motion for Belated Brief and that the appellees were never contacted regarding the Motion for Belated Brief, the Court determined that Mr. Spencer misrepresented to the Court that appellees were unopposed to the motion. Because its reliance on Mr. Spencer's pleadings was misplaced, the Court held that its prior decision to grant the unopposed motion was erroneous, and it forwarded a copy of the opinion to the Committee on Professional Conduct. On March 17, 2008, Mr. Spencer filed a Motion to Reconsider. Separate appellee Zurich filed a response to the motion on March 21, 2008, and appellee Sanders filed its response on March 25, 2008. The court denied Mr. Spencer's reconsideration motion on April 10, 2008, and again referred the matter to the Office of Professional Conduct based on the misrepresentation of the facts. 38 The Arkansas Lawyer www.arkbar.com DWL4_ABA_Ad06.indd 1 Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer11/11/08 39 11:56:30 AM McNulty continued from page 12 Law, venue would only be proper where the events "occurred" or where the entity "had" its principal place office (Garland County). The proper venue for actions involving fraud was briefly examined in Centerpoint Energy, Inc. v. Miller County Circuit Court.50 Again, the Court sought to "give effect to the legislative purpose set by the venue statutes," and examined both � 16-55-213(a) (3)(A) and � 16-60-113(b).51 Although not determinative in the case because the plaintiff was ultimately dismissed, the Court did imply that it would apply the New Law and place venue in the county of the plaintiff's residence.52 As stated above, the Act's main purpose was tort reform. Noticeably, it was in the area of medical malpractice where the Act restricted, rather than expanded, the possible counties where venue is proper. Under the Old Law, Ark. Code Ann. � 16-60-112, venue was proper for medical malpractice lawsuits in the county where the accident causing the injury or death occurred or where persons injured or killed resided at the time of injury. Now, "[a]ny action for medical injury brought under � 16-114-201 et seq. against a medical care provider, as defined in � 16-114-201(2), shall be filed in the county in which the alleged act or omission occurred."53 Thus, by its own terms, the Act prohibits an injured plaintiff from bringing a medical malpractice action in the county of his or her residence, if that county is different from the county "in which the alleged act or omission occurred."54 For patients living outside of Pulaski County who receive treatment at any of the several major hospitals located in Pulaski County, Ark. Code Ann. � 16-55-213(e) could have far-reaching effects.55 What does this all mean? It appears fairly certain that courts are going to be hesitant to repeal any of the Old Law by implication. Rather, based on the few decisions by Arkansas courts concerning Ark. Code Ann. � 16-55-213, it appears that courts will examine venue under both sets of venue statutes to "avoid absurd consequences." Unfortunately, we have not been given clear cut examples of what these "absurd consequences" could be. Nevertheless, the practice which seems to be developing is that if a plaintiff (except for in medical malpractice actions) can establish proper venue under the New Law, i.e., that the lawsuit is brought in (1) the county in which a substantial part of the events or omissions giving rise to the claim occurred; (2) the county in which the defendant resided or maintained its principal office in Arkansas at the time the cause of action accrued; or (3) the county in which the plaintiff resided or maintained its principal office in Arkansas at the time of the accrual of the cause of action, the court will allow the case to be brought in that county.56 For medical malpractice actions, plaintiffs are resigned to bringing their claim only in the county in which the alleged act or omission occurred.57 If a lawyer follows these rules, he or she can be confident that venue will not be an issue in the case. endnotes 1. Kimberly Frazier, Arkansas's Civil Justice Reform Act of 2003: Who's Cheating Who?, 57 Ark. L. rev. 651, 690-691 (2004). 2. 2003 Ark. Acts 649. 3. Frazier, supra note 1, at 690-691. 4. By using the term the "Old Law" this Article is not arguing that Ark. Code Ann. � 16-60101, et seq. is no longer applicable. Rather, the use of "New Law" and "Old Law" is only for convenience. 5. Ark. Code Ann. � 16-60-101, et seq.; see also Frazier, supra note 1, at 690-691. 6. Id. 7. Ark. Code Ann. � 16-60-101. 8. Ark. Code Ann. � 16-60-104. 9. Ark. Code Ann. � 16-60-105; see also, Zolper v. AT&T Info. Sys., 289 Ark. 27, 709 S.W.2d 74 (1986). 10. Ark. Code Ann. � 16-60-112. 11. Shultz v. Young, 205 Ark. 533, 169 S.W.2d 648 (1943) (suit involving a battery claim); Bristol-Meyers Squibb Co. v. Saline County Circuit Court, 329 Ark. 357, 947 S.W.2d 12 (1997) (suit for medical malpractice). 12. Ark. Code Ann. � 16-60-116(a). 13. Id., dAvid newbern & John J. wAtkins, ArkAnsAs CiviL PrACtiCe And ProCedure � 6-2 (4th ed. 2006). See also, Ozark Supply Co. v. Glass, 261 Ark. 750, 552 S.W.2d 1 (1977); Universal C.I.T. Credit Corp. v. Troutt, 235 Ark. 238, 357 S.W.2d 507 (1962). 14. newbern & wAtkins, supra note 13, at 6-2. 15. Id. 16. JB Wayne, Inc. v. Hot Springs Village Property Owners' Association, 97 Ark. App. 288, 292, 248 S.W.3d 503, 506 (2007) (citing newbern & wAtkins, supra note 13, at 9-1). 17. The six statutes are Ark. Code Ann. �� 16-60-101 to -103, 16-60-107, 16-60-114, and 16-60-115, and subsection (e) of � 16-55213. 18. Ark. Code Ann. � 16-55-213(a). 19. The New Law also provides that: (c) In any civil action, venue must be proper as to each or every named plaintiff joined in the action unless: 1) The plaintiffs establish that they assert any right to relief against the defendants jointly, severally, or arising out of the same transaction or occurrence; and (2) The existence of a substantial number of questions of law or material fact common to all those persons not only will arise in the action, but also that: (A) The questions will predominate over individualized questions Tom M. Ferstl, MAI, SRA, J.D. J.T. Ferstl, MAI, J.D. 621 E. Capitol Ave. Little Rock, AR 72201 Phone: 501-375-1439 or 501-376-1439 Fax: 501-375-8317 expert Witness testimony real estate related Matters �Tax Appeals �Court Testimony �Condemnation �Divorce 40 Years experience see Web site for references www.arkansasappraisers.com email: firstname.lastname@example.org 40 The Arkansas Lawyer www.arkbar.com pertaining to each plaintiff; (B) The action can be maintained more efficiently and economically for all parties than if prosecuted separately; and (C) The interest of justice supports the joinder of the parties as plaintiffs in one (1) action. (d) (1) Unless venue objections are waived by the defendant or by unanimous agreement of multiple defendants, if venue is improper for any plaintiff joined in the action, then the claim of the plaintiff shall be severed and transferred to a court where venue is proper. (2) (A) If severance and transfer is mandated and venue is appropriate in more than one (1) court, a defendant sued alone or multiple defendants, by unanimous agreement, shall have the right to select another court to which the action shall be transferred. (B) If there are multiple defendants who are unable to agree on another court, the court in which the action was originally filed may transfer the action to another court. 20. Ark. Code Ann. � 16-55-213(e). 21. Ison Properties, LLC v. Wood, 85 Ark. App. 443, 447, 156 S.W.3d 742, 745 (2004) (citing newbern & wAtkins, supra note 13, at � 6-1). 22. Ark. Code Ann. Tit. 16, Subtit. 5, Ch. 55, Subch. 2 Note (2008). 23. Frazier, supra note 1, at 690-691. 24. Wright v. Centerpoint Energy Resources Corp., et al., 372 Ark. 330, 2008 Ark. LEXIS 97 (February 14, 2008). 25. Ark. Code Ann. � 16-55-213(a)(3)(A). 26. Of course, issues such as personal jurisdiction over the defendant must also allow for suit in a specific county. 27. Wright, 372 Ark. at 330. 28. Id. at 331. 29. Id. at 331-332. 30. Id. 31. Id. 32. Id. at 332. 33. Wright, 372 Ark. at 332 (emphasis in original). 34. Id. (emphasis in original). 35. Id. at 332; citing Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995) ("it is this court's fundamental duty to give effect to the legislative purpose set by the venue statutes"). 36. Id. The Court did acknowledge that it had previously stated in Babb v. City of El Dorado, 170 Ark 10, 278 S.W. 649 (1926), that "even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions plainly showing that it was intended as a substitute toward the first act, it will operate as a repeal of that act." 37. Wright, 372 Ark. at 333-334. 38. Id. 39. Id. 40. Id. 41. Id. 42. Wright, 372 Ark. at 333-334. 43. Id. at 334 ("Thus, in this context, we conclude that venue was where [the decedent] resided at the time the events giving rise to the claim occurred-- Craighead County."). 44. 97 Ark. App. 288, 248 S.W.3d 503 (2007). 45. JB Wayne, Inc. v. Hot Springs Village Property Owners' Association, 97 Ark. App. 288, 292, 248 S.W.3d 503, 506 (2007) (citing newbern & wAtkins, supra note 13, at 9-1). 46. Id. It should be noted that there were other venue statutes at issue in JB Wayne which are not within the scope of this article. 47. Id. 48. Ark. Code Ann. � 16-55-213(a). 49. JB Wayne, at 291, 248 S.W.3d at 505. 50. Centerpoint Energy, Inc. v. Miller County Circuit Court, 372 Ark. 343, 2008 Ark. LEXIS 343 (Feb. 14, 2008). 51. Id. at 354. The case also involved Ark. Code Ann. � 16-55-213(b)(1), which provides that venue in "[t]he residence of any properly joined named class representative or representatives may be considered in determining proper venue in a class action." As explained above, however, the Court did not examine this statute in detail because all of the plaintiffs residing in Arkansas had been dismissed. 52. Id. at 355-356. 53. Ark. Code Ann. � 16-55-213(e). 54. Id. 55. At the time of this Article, no decisions interpreting Ark. Code Ann. � 16-55-213(e) Ar k PAC www.arkbar.com had been rendered. 56. Ark. Code Ann. � 16-55-213(a). 57. Ark. Code Ann. � 16-55-213(e). If you would like help with appeals, motions, dealing with expert witnesses, or complex case strategies call Gerry Schulze. Appellate work and motion practice can be time-consuming, complex, and for some people it is not the most entertaining part of the practice of law. Gerry Schulze enjoys it. Gerry Schulze does research, writes briefs, and argues motions on novel and complex legal issues. � � � � � � 25 years experience Numerous reported cases on appeal Frequent continuing legal education lecturer Institute Chair, Arkansas Appellate Advocacy Institute, 1996 and 1997 Host: Law Talk - KARN Radio, 1990-96 Member AAJ, ATLA, American Bar Association, Arkansas Bar Association, and Scribes Baker & Schulze � 303 President Clinton Ave. Suite D � Little Rock, AR � 72201 (501) 537-1000 � email@example.com Se habla espa�ol Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 41 Brooks continued from page 16 But there is, as before stated, testimony sufficient to show that each of the parties made gaps in the fence, which were not replaced for a considerable length of time, and that both of the parties used these gaps without restoring the fence or protecting the field from the depredation of cattle. Each of these parties was working to a common purpose--that is to say, the construction of the road--and each used the open gaps while being under obligation to repair the gaps so as to prevent injury to the farmers who had crops inside of the inclosure. The case, therefore, comes not only within the rule of joint liability where there is concert of action, but also within the other rule stated above, that there is joint liability where the different acts of negligence concur as to time and place and unite in setting in operation the force which causes the injury. In other words, they used the open gaps for the same purposes and at the same time, each being under duty to repair the gaps, and the conduct of each resulted in admission into the field of large numbers of cattle. It cannot be said that the entrance of the cattle was the result of the separate acts of either, but it was rather the result of the act of both of the parties in failing to repair the gaps so as to keep the cattle out.22 With this case, Arkansas recognized three of Professor Prosser's categories: concert of action as he defined it, common duty and "concurrent causation of a single, indivisible result, which either alone would have caused." Neither Troop nor Conery depended on a statute. Both relied on common law. Arkansas law is no different than the common law. Where common duties are owed, where the tortfeasors act in concert, and where the injury is indivisible, each defendant is liable for the entire harm caused. He is so liable because he caused the entire injury, not because some operation of law makes him liable for something he didn't do. That's what joint and several liability means. the constitutional violations Two principal constitutional violations, one of Amendment 80, section 3, and the other of Article V, section 32, arise from the Phantom Defendant. Both of these provisions are grounded in separation of powers. Separation of powers is a bedrock principle in our system of government found in Article 4, sections 1 and 2 of the Arkansas Constitution: The Arkansas Supreme Court noted early on that separation of powers "lies at the very foundation, and constitutes the groundwork of all American Constitutions."23 Since separation of powers provisions appeared in the Constitution of 1836, the Arkansas Supreme Court has held steadfast to an "uncompromising interpretation of the separation of powers doctrine."24 Separation is meant to check the exercise by any one branch of power "of an encroaching nature. . . . [T]he powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident that none of them ought to possess, directly or indirectly, an overruling influence over the other, in the administration of their respective powers."25 Absent this separation, there is "a tyrannical concentration of all of the power of government in the same hands."26 "Neither of the three separate departments of government is subordinate to the other and neither can arrogate to itself any control over either one of the others in matters which have been confided by the constitution to such other department."27 The doctrine of separation of powers contained in the Arkansas Constitution is strong, vital, vibrant, and contemporary. "Our system, providing as it does for a distinct separation of departments, did not in its inception contemplate a blending of authority; and overlapping must not be permitted now at the command of expediency or in response to the nod of convenience."28 This separation is absolute, and any legislation that infringes upon it is invalid. a. amendment 80, section 3 The conflict between Act 649 and Amendment 80 would strike down the Phantom-Defendant provision independent of any infirmity in the abrogation of joint and several liability. A constitutional provision could not be more clear than Amendment 80, section 3. Prior to the enactment of Amendment 80, some ambiguity existed with respect to the roles of the Court and the legislature in enacting rules of practice and procedure.29 Section 3 of Amendment 80 ends that debate forever, unambiguously holding that "the Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts . . . ."30 Any encroachment upon this authority by bridges, Young, Matthews & drake Plc leslie G. sarver F.G. Bridges (1866-1959) Frank G. Bridges, Jr. (1906-1973) Paul B. Young (1920-2004) Stephen A. Matthews Ted N. Drake Joseph A. Strode Terry F. Wynne The Law Firm of is pleased to announce has become an associate with the firm in the Hot Springs Office 315 East Eighth Ave. P.O. Box 7808 Pine Bluff, AR 71611 (870) 534-5532 1401 Malvern Avenue Suite 180 Hot Springs, AR 71901-6370 (501) 609-0022 Michael J. Dennis David L. Sims Cary E. Young James C. Moser, Jr. John P. Talbot Brandon C. Robinson Tanya B. Spavins Leslie G. Sarver Hot Springs Office 42 The Arkansas Lawyer www.arkbar.com the legislature is an offense to separation of powers. The Arkansas Supreme Court has already prescribed a method for bringing "empty chairs" or "phantoms" before the court when a defendant believes someone else should be held partially or totally liable for the harm done to the plaintiff. Rules 14, 18 and 19 of the Arkansas Rules of Civil Procedure speak specifically to this practice. These are "rules of pleading, practice and procedure," and Act 649 conflicts with them. Even absent a conflict, creating a statutory "procedure" for adjudicating the "fault" of a phantom is simply outside of the Legislature's Constitutionally-delegated power and offends separation of powers. b. article v, section 32 The abolition of joint and several liability and the attempt to require allocation of damages between defendants and even to "phantoms" offends a peculiar species of separation of powers found in Article V, Section 32. Article V, section 32 reads: The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted (emphasis added). Thus, Article V, section 32 withholds from the legislature the power to limit recoveries in personal injury actions. It is both a substantive limit on legislative power, and, because it does not disturb judicial power to reach the same end, a particular expression of separation of powers. Act 649 limits recoveries in personal injury actions in direct violation of Article V, section 32 and therefore separation of powers. Again, at common law, a plaintiff was entitled to recover the full measure of harm from any or all defendants who caused it. If any award is excessive or unjust, the judiciary is empowered to reduce it, not the Legislature. Such is the structure of our Constitution, a structure dependent upon separation of powers. Act 649 seeks to overturn this delegation of power between the courts and the Legislature. It forces an allocation where none can be had by relieving some defendants who are liable for the entire harm of a portion of their responsibility and even allocating some of the damage to "phantoms" not before the court. Most importantly, it reduces Plaintiff's recovery where even one defendant does not pay his portion of the verdict. Thus, Act 649 is a "law . . . enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property." That law is unconstitutional pursuant to Article V, section 32. endnotes 1. Wright, The Logic and Fairness of Joint and Several Liability, 23 MeM. st. u. L. rev. 45, 46 (1993) (Logic and Fairness). 2. Id.; Marcus, Phantom Parties and Other Practical Problems with the Attempted Abolition of Joint and Several Liability, 60 Ark. L. rev. 437 (2007) (Phantom Parties). 3. Prosser, Joint Torts and Several Liability, 25 43 The Arkansas Lawyer www.arkbar.com Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 43 CAL. L. rev. 413, 414 (1937) (Joint Torts); Logic and Fairness at 23; Phantom Parties at 438. "Acting in concert" had a much broader meaning at common law than it does under Act 649. 4. Joint Torts at 418. 5. Ibid. 6. Phantom Parties at 438 (citing restAteMent (third) of torts: APPortionMent of LiAbiLity � A18 cmt. A reporter's note (2000)). 7. Ark. Const. amend. 80, � 3. 8. Logic and Fairness at 54. 9. Id. at 56. 10. Id. at 429-30. 11. Id. at 431. 12. Id. at 432. 13. Ibid. 14. Ibid. 15. Logic and Fairness at 55. 16. Joint Torts at 433. 17. Logic and Fairness at 56. 18. 61 Ark. 381, 33 S.W. 426 (1895). 19. Id. 61 Ark. at ___, 33 S.W. at 428. 20. 150 Ark. 560, 234 S.W. 992 (1921). 21. Id. 150 Ark. at ___, 234 S.W. at 994. 22. Ibid. 23. State v. Hutt, 2 Ark. 282, 286, 1840 WL 266 (1839). 24. Note, Spradlin v. Arkansas Ethics Commission: A Hard-Line Approach to Separation of Powers, 48 Ark. L. rev. 755 (1995). 25. Oates v. Rogers, 201 Ark 335, 144 S.W.2d 457, 459 (1940) (quoting Madison, federAList, No. 48). 26. Ibid. 27. Wells v. Purcell, 267 Ark. 456, 462, 592 S.W.2d 100 (1979). 28. Spradlin v. Arkansas Ethics Comm'n, 314 Ark. 108, 115, 858 S.W.2d 684 (1993) (internal citation and quotations omitted). 29. See Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992) (discussing when the Court could and would overturn a procedural enactment by the legislature). 30. Ark. Const., amend. 80, � 3. Need labels? Your Association maintains the largest and most accurate database of Arkansas attorneys. To purchase mailing labels at a reduced rate to members, contact Barbara Tarkington at firstname.lastname@example.org or 501-375-4606. 44 The Arkansas Lawyer www.arkbar.com Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 45 Earley continued from page 20 Black's Law Dictionary defines "claim" as: a "[d]emand for money or property as of right."44 It defines "defense" as "[t]hat which is put forward to diminish a plaintiff's cause of action or defeat recovery," and "partial defense" as "[o]ne  which only tends to mitigate the damages to be awarded."45 The United States Supreme Court holds a claim, unlike a defense, is the assertion of a right which could survive independent of the plaintiff's claim.46 These definitions reflect the common understanding of the difference between claim and defense. A party advances a claim when it asks the court or the jury to compel another person to give it money or property. A party advances a defense when it asks the court or the jury not to give the plaintiff all or some of what it has requested. Non-party apportionment under the CJRA is not a claim. A defendant's assertion of non-party fault could not survive independent of the plaintiff's claim. The CJRA clearly states that a finding of fault does not render the non-party liable and cannot be used in a future proceeding against the nonparty.47 Because non-party apportionment is a defense, the CJRA's procedures for advancing a non-party defense do not conflict with the Arkansas Rules of Civil Procedure. Therefore, challenges under the separation of powers doctrine should ultimately fail. Non-party apportionment does not violate article Five, � 32 of the arkansas constitution A third common attack against non-party apportionment is that it violates Article Five, � 32 of the Arkansas Constitution, which provides: The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees and to whom said payment shall be made. It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted (emphasis added). Plaintiff advocates read Article Five, � 32 as an absolute prohibition on any legislation that might operate to reduce a tort award. However, in upholding a municipal immunity statute, the Supreme Court of Arkansas rejected this interpretation, and instead, looked to whether a law touching upon recovery is "reasonable."48 In limiting the scrutiny applicable to an Article Five, � 32 challenge, the Court noted: [T]he legislature must be permitted to alter the common law when it stands in the way of a reasonable public policy objective. The common law is not a static or a fixed code, forever unchangeable by the representatives of the people. To read constitutional provisions such as the ones in this case to say that the common law must remain as it stood in 1874 would prevent the legislature from adjusting the law to the changes of time and circumstance.49 Under the Court's current interpretation of Article Five, � 32, non-party apportionment survives rational basis review. But even if the Court adopts a more literal interpretation of Article Five, � 32, non-party apportionment does not limit the amount an injured party is entitled to recover. Non-party apportionment is not a cap on damages or a grant of immunity.50 Unlike a cap on damages, non-party apportionment does not limit "the amount to be recovered for injuries" when the jury finds that the non-party bears no fault for the plaintiff's injury. Therefore, non-party apportionment is a substantive defense to a particular defendant's liability, not a limitation on the "amount" of damages a plaintiff may recover. Furthermore, a holding that non-party apportionment is an illegal limitation on recovery would have wide-ranging implications. Such a holding would threaten the validity of Arkansas's comparative fault statute, which bars recovery when a plaintiff's fault is found to be 50 percent or greater. It would also threaten the municipal immunity statute ruled constitutional twelve years ago. A complete reversal of course by the Court on these issues seems unlikely, and non-party apportionment should ultimately survive an Article Five, � 32 challenge. a final thought In his article attacking the constitutionality of non-party apportionment, Mr. Brooks provides an extensive discussion of the traditional common law principles of causation and concludes that the rule of joint and several liability should survive because the law deems that any defendant Plastiras Law Firm is pleased to announce the association of Nathan T. Green Attorney at Law 1010 West Third St. Little Rock, AR 72201 Ph: 501-376-7410 Fax: 501-376-0933 www.plastiraslawfirm.com email@example.com 46 The Arkansas Lawyer www.arkbar.com who "caused" an injury is responsible for 100 percent of the damages which result. However, this conclusion ignores a second rule flowing from the same principle: the contributory negligence doctrine. At common law, a plaintiff who caused his own injuries was barred from recovery because he was deemed to have caused 100 percent of his own damages. Under modern rules of comparative negligence, a plaintiff who "causes" his own injury may still recover if his "fault" is less than that of the defendant(s), and it seems likely that the insurance industry would like nothing better than to see a return to tort rules as they existed at the beginning of the 20th Century. The American tort system retreated from a strict "causation" analysis long-ago in the interest of fairness, and non-party apportionment represents just another step in incorporating the concept of "fault" into that system. The Supreme Court of Arkansas has traditionally allowed the General Assembly to alter the common law to liberalize tort rules, and there is no reason for the Court to change its constitutional jurisprudence on this point to prevent the legislative pendulum from swinging the other way. Non-party apportionment should survive constitutional scrutiny. endnotes 1. Ray Parker, Jr., Ghostbusters, on Ghostbusters oriGinAL soundtrACk (Artista 1984). 2. Ark. Act 649 of 2003. 3. The CJRA directs that "[e]ach defendant shall be liable only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault," and that a "separate several judgment shall be rendered against that defendant for that amount." Ark. Code Ann. � 16-55-201(b). There are two exceptions where parties may be held jointly liable: (1) when a vicarious liability relationship exists such that the other person is acting as "agent or servant" of the party; and (2) when parties "act in concert." Ark. Code Ann. � 16-55-205(a). To determine the amount of judgment to be entered against each defendant, the court multiplies the total amount of damages recoverable by the plaintiff with regard to each defendant by the percentage of each defendant's fault. Ark. Code Ann. � 16-55-201(c). 4. Opponents of tort reform have used a number of eerie rhetorical devices to describe non-party apportionment. "The phantomdefendant" is the latest and perhaps most creative in that list. 5. The CJRA allows the jury to attribute a percentage of "fault" to a person or entity, "regardless of whether the person or entity was or could have been named as a party to the suit." Ark. Code Ann. � 16-55-202. To preserve its right to have the jury apportion fault to a nonparty, the defendant must file a notice of nonparty fault setting forth the non-party's name and address, along with a brief statement of the basis of the non-party's fault. Ark. Code Ann. � 16-55-202(b)(2). The notice of nonparty fault must be served "not later than 120 days prior to the date of the trial." Id. � 16-55202(b)(1). 6. --- S.W.3d ----, 2008 WL 4173655 (Ark. Sept. 11, 2008). 7. Andrew R. Klein, Apportionment of Liability in Workplace Injury Cases, 26 berkeLey J. eMP. & LAb. L. 65, 69 (2005). 8. Under the fellow-servant rule, an employer could utilize a defense that a plaintiff assumed the negligence of a fellow co-worker whose negligence caused plaintiff''s injury. Poinsett Lumber & Mfg. Co. v. Traxler, 118 Ark. 128, 128, 175 S.W. 522, 522 (1915). 9. According to the doctrine of contributory negligence, a plaintiff was completely barred to any recovery, if partially responsible for her own injury. Garrison v. Funderbunk, 262 Ark. 711, 717, 561 S.W.2d 73, 76 (1978). 10. Klein, 26 berkeLey J. eMP. & LAb. L. at 69. 11. Id. 12. See e.g. Ark. Code Ann. � 11-9-101 et seq. 13. Craven v. Fulton Sanitation Service, Inc., 361 Ark. 390, 396, 206 S.W.3d 842, 846 (2005). However, the workers' compensation laws do not preclude a worker from filing an action for willfully inflicted injuries. Id. 14. Ark. Code Ann. � 11-9-105; Klein, 26 berkeLey J. eMP. & LAb. L. at 70. 15. Ark. Code Ann. � 11-9-101(b); Klein, 26 berkeLey J. eMP. & LAb. L. at 70. 16. Klein, 26 berkeLey J. eMP. & LAb. L. at 70-71. In 1975, Arkansas enacted a comparative fault regime through legislation. Ark. Code Ann. � 16-64-122. 17. Klein, 26 berkeLey J. eMP. & LAb. L. at 70-71. 18. See Phillip D. Oliver, Once is Enough: A Proposed Bar of the Injured Employee's Cause of Action Against a Third Party, 58 fordhAM L. rev. 117, 126-33 (1989). 19. 277 Ark. 406, 643 S.W.2d 526 (1982). 20. Id. at 423, 643 S.W.2d at 534. 21. Belz-Burrows, L.P. v. Cameron Constr. Co., 78 Ark. App. 84, 89, 78 S.W.3d 126, 129 (2002). 22. See Oliver, 58 fordhAM L. rev. at 126133. 23. See Courtney A. Nelson, To Truly Reform We Must Be Informed: Davis v. Parham, Phyllis Johnson Certified Appellate Mediator for the Arkansas Appellate Mediation Pilot Program Certified Circuit Courts Mediator (civil and family) since 2001 Practicing Law since 1975 130-D North College Avenue, Fayetteville, AR 72701-5343 479-442-0805 phone 479-442-4981 fax Email: firstname.lastname@example.org www.phyllisjohnsonlaw.com Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 47 Earley continued from page 47 the Separation of Powers Doctrine, and the Constitutionality of Tort Reform in Arkansas, 59 Ark. L. rev. 781, 790 (2006). 24. Kimberly Frazier, Arkansas Civil Justice Reform Act of 2003: Who's Cheating Who? 57 Ark. L. rev. 651, 672 (2004). 25. Id. (citing statutes). 26. The United States and Arkansas Constitutions contain provisions guaranteeing within their respective spheres that no person shall be deprived "of life, liberty, or property without due process of law." U.S. Const. amend XIV, � 1; Ark. Const. art. II, � 8. The limitations imposed by due process are of two distinct types � procedural and substantive. Parker v. BancorpSouth Bank, --S.W.3d ----, 2007 WL 853459 (Ark. March 22, 2007); Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir. 1999). Procedural due process commands that when the government acts to deprive a person of life, liberty, or property, it must do so in accord with procedures that are fair. See Matthews v. Eldridge, 424 U.S. 319 (1976) (articulating the familiar "notice and opportunity to be heard" standard for procedural due process). In contrast to procedural due process, substantive due process "serves the goal of preventing governmental power from being used for purposes of oppression." Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir.1996) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). Thus, a law which comports with procedural due process because a person is given a notice and a full opportunity to be heard might, nonetheless, violate substantive due process if it offends notions of personal liberty in a way which "shocks the conscious" of the court. Howard, 82 F.3d at 1349-50. Substantive due process serves to protect individual rights inherent in the Constitution that are not specifically enumerated in the document. Id. 27. The Montana Supreme Court endorsed this notion in Plumb v. Fourth Jud. Dist. Ct., 927 P.2d 1011 (Mont. 1996). 28. Billings v. Aeropres Corp., 522 F. Supp.2d 1121, 1130-31 (E.D. Ark. 2007). 29. Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir. 1999). 30. Id. 31. Id. 32. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 88 (1978); see also White v. City of Newport, 326 Ark. 667, 672, 933 S.W.2d 800 (1996) (holding that General Assembly may alter common law for the purpose of meeting a public policy objective). 33. Legislation that concerns an economic interest, such as the liberty to contract, is subject to rational basis review. Honeywell 48 The Arkansas Lawyer www.arkbar.com v. Minn. Life & Health Ins. Guar. Ass'n, 110 F.3d 547, 554-55 (8th Cir. 1997), cert. denied, 522 U.S. 858 (1997). Under a rational basis review, the legislation must be rationally related to achieving a legitimate governmental objective. Id.; see also Winters v. State, 301 Ark. 127, 131, 782 S.W.2d 566, 568 (1990). If the legislation deals with a fundamental liberty interest, strict scrutiny applies. Singleton, 176 F.3d at 425 ("the protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity."); see also Jegley v. Picado, 49 Ark. 600, 608, 80 S.W.3d 332, 334 (2002) (holding that Arkansas's anti-sodomy statute unconstitutionally infringed upon the right to privacy). Fundamental rights are only those "rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Singleton 176 F.3d at 425; Jegley v. Picado, 349 Ark. at 608, 80 S.W.3d at 334. 34. Church v. Rawson Drug & Sundry Co., 842 P.2d 1355, 1362-64 (Ariz. 1992) (upholding statute that abolished joint and several liability and allowed non-party apportionment as economic legislation subject to rational basis review); Haff v. Hettich, 593 N.W.2d 383, 390 (N.D. 1999) ("We conclude that [the non-party provision of the North Dakota tort reform statute] bears a reasonable relation to the desired result of apportioning liability and damages among those persons responsible for another person's injuries and is not arbitrary, unreasonable, or discriminatory"); see also Evans v. Kutch, 56 P.3d 1046, 1052 (Alaska 2002) (upholding statute capping damages and allowing non-party apportionment as economic legislation subject to rational basis review); Salazar v. Am. Sterilizer Co., 5 P.3d 357 (Col. Ct. App. 2000) (upholding nonparty statute under rational basis substantive due process review); Smiley v. Corrigan, 638 N.W.2d 151, 152 (Mich. Ct. App. 2001) (upholding non-party statute under rational basis review). 35. During the infamous "Lochner era," the United States Supreme Court put economic interests on an equal footing with personal liberties. See Lochner v. New York, 198 U.S. 45 (1905) (holding law that sought to protect health of bakers arbitrarily infringed upon the right to contract). The Court subsequently rejected strict scrutiny review of laws dealing with economic interests, opting for a rational basis review of such laws. U.S. v. Carolene Prod. Co., 304 U.S. 144 (1938). 36. See cases cited supra, Note 32. The one appellate decision to the contrary has been roundly rejected. Plumb v. Fourth Jud. Dist. Ct., 927 P.2d 1011 (Mont. 1996). In Billings v. Aeropres Corp., the trial court found that plaintiffs have a fundamental liberty interest in the "truth-determining of a trial" which subjects non-party apportionment to strict scrutiny review. 522 F. Supp.2d 1121, 113031 (E.D. Ark. 2007). 37. Church, 842 P.2d at 1363-64 (citing Brown v. Keill, 580 P.2d 867, 874 (Kan. 1978)). 38. An act of the General Assembly will be overturned under the separation of powers doctrine when it irreconcilably conflicts with one of the Arkansas Supreme Court's rules of pleading. Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415 (2007) (holding the Arkansas Medical Malpractice Act's requirement that an affidavit of reasonable cause be filed within thirty days after filing the complaint unconstitutional because it directly conflicted with Rule 3 of the Arkansas Rules of Civil Procedure regarding commencement of litigation). 39. Billings, 522 F. Supp.2d at 128-29. 40. Id. 41. Id. 42. In order to avoid ruling the statute unconstitutional, Judge Wilson interpreted it to simply reaffirm existing third-party practice and comparative fault rules. Id. 43. Bohannon v. Johnson Food Equipment, Inc., 2008 WL 2685719, * 2 (E.D. Ark. 2008). 44. bLACk's LAw diCtionAry 247 (6th ed. 1990). 45. Id. at 419-20. 46. Reiter v. Cooper, 507 U.S. 258, 265 (1993). 47. Ark. Code Ann. � 16-55-202(c). 48. White v. City of Newport, 326 Ark. 667, 671-72, 933 S.W.2d 800, 802-03 (1996). 49. In decisions subsequent to White, the Court has continued to show deference to the General Assembly's authority to alter common law. See Nelson, supra Note 21. 50. The Arkansas Supreme Court's decisions on these issues have been somewhat inconsistent. For example, the Court struck down a law which granted prime contractors immunity even when those prime contractors were not the employers of the injured workers. Stapleton v. M.D. Limbaugh Const. Co., 333 Ark. 381, 392, 969 S.W.2d 648, 653 (1998). It appears the Court will tolerate laws that leave an injured person an avenue to recovery, but will strike down laws that limit recovery in some absolute fashion. Non-party apportionment should survive constitutional scrutiny under such an analysis. Voluntary Appellate Mediation Pilot Program The Arkansas Appellate Mediation Pilot Program, an initiative of the Arkansas Supreme Court, was implemented to provide parties to an appeal an alternative method for resolving their dispute. The Program is voluntary and is administered by a Mediation Coordinator employed by the Alternative Dispute Resolution Commission. The program provides up to eight hours of free mediator services for those parties participating. In December 2007, the Supreme Court Exploratory Committee on Appellate Mediation drafted rules for the proposed voluntary program to make appellate mediation available in some civil cases before the Court of Appeals. The proposal was supported by the Court of Appeals and approved by the Arkansas Supreme Court by a per curiam opinion on December 13, 2007. The program applies to most civil appeals filed in the Court of Appeals on or after September 1, 2008. This article explains the purpose of the program and addresses some of the most common questions concerning the program. Q. What is the purpose of the appellate Mediation Program? a. The program's purpose is to amicably resolve certain appeals in the early stages of the appellate process, and to save the parties time, expense, and uncertainty. Mediation provides the parties with a forum and opportunity to find creative solutions to their dispute. In its proposal the committee noted that the court strives to find methods of improving access to the justice system and to improve its provision of services at all tiers of the justice system. Mediation has been highly successful in numerous jurisdictions as a means of reducing costs, controlling court dockets, and providing more expedient results and greater satisfaction to litigants. Such a program was already in place in other levels of the Arkansas court system, and it seemed sensible to start a program at the appellate level. Q. Which cases are eligible for mediation? a. Most civil appeals filed in the Arkansas Court of Appeals are eligible if all parties are represented by counsel. A few examples of such appeals include property line disputes, personal-injury actions, divorce, dependency actions, workers' compensation, and probate matters. However, criminal cases, juvenile cases, public service commission cases, and pro se cases are not eligible for mediation in the pilot program. Q. can a case in which the appeal was filed prior to september 1, 2008, participate in the program? a. Yes; however, such a case would not be eligible to receive free mediator services, and the parties would be required to compensate the mediator. Q. how will cases be selected for mediation? a. If a case meets the threshold requirements for mediation, and all parties agree to participate, the parties then must file a joint motion to stay the proceedings with the court having jurisdiction over the appeal. [Prior to the record on appeal being filed, jurisdiction is with the circuit court. After the record on appeal has been filed, jurisdiction is with the Court of Appeals]. A copy of the order granting stay, together with a Mediation Case Screening Form from the Appellant and any Cross-Appellant, should then be forwarded via mail or fax to the Mediation Coordinator. The Mediation Coordinator will then prepare a notice of referral and assign a mediator. Q. how will the mediators be selected? a. The pilot program has an approved roster of mediators that consists of mediators certified by the Arkansas Dispute Resolution Commission as either circuit civil mediators, family mediators, or dependency mediators, who also have experience in appellate practice, and who have received specialized appellate mediation training. The coordinator will appoint an available mediator from the roster who is timely agreed upon by the parties or, if the parties are unable to agree, select an available mediator from the roster. The coordinator will consider, among other things, the type of case, the geographical location of the parties, and the qualifications of each available appellate mediator. Q. how will the mediation be conducted? a. The mediator will coordinate the time, place, and procedures for the mediation, including the filing of any mediation summaries. The mediator has no authority to impose a settlement upon the parties; instead, the role of the mediator is to assist the parties in reaching a satisfactory resolution of their dispute. The mediation will be conducted in accordance with the Voluntary Appellate Mediation Pilot Program Rules and the Alternative Dispute Resolution Commission Requirements for the Conduct of Mediation and Mediators. Q. how will mediation affect the appellate time frames? a. The parties must file a joint motion for stay with the court having jurisdiction over the appeal. Upon issuance of the stay, all appellate deadlines are tolled for up to sixty days from the date of the order granting stay or until the mediation is completed and an order lifting stay is entered, unless there is an approved extension of time for special circumstances. the 60 day stay in no way preempts the seven month deadline set by arkansas rule of appellate Procedure civil 5(b) to file record on appeal. Q. What will be the cost of mediation? a. To the extent resources are available, the Appellate Mediation Pilot Program will pay the fees and expenses (including preparation time, but excluding travel time) of the mediator at a rate of $225 per hour. A maximum of 8 hours per mediation can be paid by the pilot program. Should this time be exceeded, or should resources become unavailable, the parties will have the option of continuing in the pilot program and sharing the expense of the mediator fees equally, unless otherwise agreed in any final mediation agreement. Q. What if mediation does not resolve all issues? a. If mediation does not resolve all issues, the appeal will proceed in the usual fashion. The court will not be informed of any of the discussions which occurred in mediation (as all those are confidential and privileged), but only that the mediation reached an impasse. If mediation is at an impasse, the stay of proceedings will be lifted and all appellate time requirements will resume. Q. What happens if mediation resolves all issues? a. After mediation has been completed, the court will dispose of the case so long as the mediation results in a settlement of all issues. Disposition of the case might result in the dismissal of the appeal, or remand to the trial court for approval of a settlement agreement, or the entry of a stipulated order called for by the mediation agreement. Who do i call? The Rules, Sample Forms, and Roster of Certified Appellate Mediators can be viewed at http://courts. state.ar.us/adr/. Questions about the program may be directed to the Program Coordinator, Jennifer Taylor, at (501) 682-9400 or via email at jennifer.taylor@ arkansas.gov. 49 Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer In Memoriam kent Jay rubens Kent Jay Rubens of West Memphis died November 5, 2008, at the age of 61. He earned an A.B. from the University of Arkansas in 1968, and a juris doctorate from the University of Arkansas Leflar Law Center in 1971. He was a partner of Rieves, Rubens & Mayton Law Firm until the time of his death. He began his legal career as a law clerk for the Honorable John A. Fogleman, Associate Justice of the Arkansas Supreme Court, from 1971-1972. He served as Special Chief Justice of the Arkansas Supreme Court in 1989. He was a member of the Arkansas House of Representatives from 1975-1981 and served on the Crittenden County Election Commission from 1985-1994. He was a Sustaining Member of the Arkansas Bar Association. He served on the Arkansas Law Review, Inc., Task Force on Judicial Discipline, Jury Improvement Task Force, and Appellate Practice Committee of the Association. He was a Fellow of the Arkansas Bar Foundation. He was a member of the American Bar Association, National Association of Criminal Defense Lawyers and served as past president of the Crittenden County Bar Association. He was a Fellow of the American College of Trial Lawyers and an Advocate with the American Board of Trial Advocates. He is survived by his wife, Belinda Eldridge Rubens, and her two children, Wiley J. Williams and Carra W. Garza. charles Farrar Mills Charles Farrar Mills of Little Rock died November 9, 2008, at the age of 85. He graduated from the University of Miami and was a licensed attorney in both Florida and Arkansas. He founded the law firm of Mills and Cross in Little Rock and later became the in-house attorney for Little Rock Electrical Subcontractors, Inc. He was a member of the Arkansas Bar Association and was honored with fifty years of service in 2004. He served on the Labor and Employment Law Section, Construction Law Committee and Lawyers Assisting Military Personel. He was a World War II U.S. Army Veteran and continued his military career in the Army obtaining the rank of Major in the Judge Advocate General's Corps. He was honorably discharged twice and was a decorated veteran. He is survived by his wife, Sally Mills; his daughters, Karen Holland, Sally Anne Whelan, and Christine Rhodes; and two grandchildren. Paul h. lee Paul H. Lee of Russellville died September 27, 2008, at the age of 57. He graduated from Arkansas Tech University and earned his juris doctorate from the University of Arkansas School of Law. He was an attorney in the Arkansas River Valley for sixteen years. He was a member of the Arkansas Bar Association. He is survived by two brothers, Dennis Lee and Tony Lee. photo courtesy of Cindy Momchilov arkanSaS Bar center contriButionS received From octoBer 1, 2008, through decemBer 31, 2008 the arkansas bar Foundation is pleased to announce the most recent addition of the following name to the donor Wall at the arkansas bar center: donor Wall Family laW Section Given by the Family law section of the arkansas bar association the arkansas bar Foundation is pleased to announce the most recent addition of the following memorial medallion on the Memorial Wall of the arkansas bar center: memorial Wall honored By: cathi compton and bill Wilson beth deere tim dudley bobby Mcdaniel sharon and Fred ursery Patty and bill Waddell in memory oF kent J. ruBenS there is an ongoing opportunity to contribute to the arkansas bar center campaign. For details on financial contributions necessary for inclusion on the donor Wall or to memorialize a deceased attorney on the Memorial Wall, please contact the Foundation office. You may contact ann dixon Pyle, executive director of the arkansas bar Foundation at 501.375.4606 or 800.609.5668 or by email at email@example.com. 50 The Arkansas Lawyer www.arkbar.com Arkansas Bar Foundation Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period October 1, 2008, through December 31, 2008: in memory oF roBert compton Judge James M. Moody in memory oF WinSloW drummond Katie Drummond Judge James M. Moody in memory oF mike etoch Roscopf & Roscopf, P.A. in memory oF lucille Julian Judith Ryan Gray in memory oF JameS mckenzie Judge James M. Moody in memory oF charlie millS Edward T. Oglesby in memory oF Judge William r. overton Judge James M. Moody in memory oF norWood phillipS deSignated to the ShackleFord/phillipS ScholarShip Fund Peggy and Tom Freeman Judith Ryan Gray Marietta and Judge John F. Stroud, Jr. in memory oF george m. purviS Judge Beth Deere Louis B. Jones, Jr. Sharp & Sharp, P.A. in memory oF kent J. ruBenS Ben F. Arnold Linda and Donald Bacon Barber, McCaskill, Jones & Hale, P.A. Marc I. Baretz Sherry P. Bartley Joy and Leo Bearman Justice Robert L. Brown John C. Calhoun, Jr. Randy Catt Duke Clement James F. Dowden Adell Fogleman in memory oF kent J. ruBenS (cont.) Friday, Eldredge & Clark, LLP Guaranty Loan & Real Estate Co. Herbert Hall and Letty McAdams Judge Barbara Halsey Hamilton, Colbert & Scurlock, LLP William, Lucretia & Marolyn Howe Robert L. Jones, III Philip E. Kaplan Danette W. and Dan Laurie Susan and Ron May Judge James M. Moody Jay Norfleet Sue and Judge John B. Plegge Roscopf & Roscopf, P.A. Marietta and Judge John F. Stroud, Jr. Rex M. Terry Welch & Kitchens, LLC Mike Wilson Womack, Landis, Phelps & McNeill in memory oF terry pence B. Jeffery Pence in memory oF JameS W. SpearS Byron A. Adams in memory oF everard J. WeiSBurd Julian B. Fogleman in memory oF roxanne WilSon Judge James M. Moody in memory oF Judge henry WoodS Judge James M. Moody honorarium, ScholarShip and other contriButionS david Solomon ScholarShip Fund Helena Bridge Terminal, Inc. Helena Marine Service, Inc. WilSon and aSSociateS ethicS ScholarShip Fund Wilson & Associates, P.L.L.C. Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 51 Classified Advertising Medical MalPractice. Fast, easy, flat-rate referrals to thousands of doctor-experts, all board certified, all in active practice. Your satisfaction GUARANTEED or your money back! Also, case reviews and opinion letters by veteran MD specialists for a low flat fee. Med-mal EXPERTS, Inc. www.medmalExperts.com, 888-521-3601. WaNt to Purchase MiNerals aNd other oil/Gas iNterests. Send details to: P.O. 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