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July 1984 Vol. 18, No.3
THE
ARKANSAS LAWYER
THE PUBUCATION OF THE ARKANSAS BAR ASSOCIATION
OFFICERS
SPECIAL FEATURES
Dennis L. Shackleford. President William R. Wilson. Jr.. Pres-Elect Annabelle Clinton. Sec-Treasurer James H. McKenzie. Council Chairman Wm. A. Martin. Executive Director Judith Gray. Assistant Executive Director
EXECUTIVE COUNCIL
Norwood Phillips W. Kelvin Wyrick Gary Nutter Robert M. Cearley Kaye S. Oberlag Tom Overbey Marcia Mcivor
Robert Hornberger Joe Reed Tommy Womack
Julian Fogleman James A. McLarty
Chris Barrier/Out of Context
The Increasing Risks of Antitrust Liability by Patrick R. James. and H. Edward Skinner
EDITOR Ruth Williams
119 120 122 124
Cover Story: The Arnolds of Southwest Arkansas by Morris S. "Buzz" Arnold
The President's Report Point of View/Letters
Lawyers' Mart
126 134
In Memoriam
136
The Arkansas Court of
Appeals-Was It Worth the Trouble? by James D. Gingerich
EX-OFFICIO
Dennis L. Shackleford William R. Wilson. Jr. J. L. Shaver. Jr. Annabelle Clinton Carl A. Crow. Jr. James H. McKenzie
REGULAR FEATURES
Annual Meeting Highlights
140 146 147 150 151 152 153
Bulletin
Executive Director's Report Young Lawyers' Report Arkansas Bar Foundation Report In-House News
IBe Service Directory The Arkansas Lawyer (USPS 54&-0(0) is published quarterly by the Arkansas ~-----------------------------------1 Bar Association. 400 West Markham. little Rock. Arkansas 7220 I. Second class postage paid at Little Rock. ArkO\lsas. Subscription price to non-members of The first in a series of articles on generations the Arkansas Bar Association $6.00 per in the law in Arkansas will premier in this year and to members $3.00 per year inissue with "The Arnolds of Southwest cluded in annual dues. Any opinion exArkansas-l02 Years of Law."Morris S. "Buzz" pressed herein is that of the author. and Arnold. professor of Law and History at the not necessarily that of the Arkansas Bar University of Pennsylvania. traces the Arnold As:;ociation. or The Arkansas Lawyer. family interest in law to William Hendrick Contributions to The Arkansas Lawyer Arnold who began in 1879. while a l7-year-old are welcome and should be sent in two school teacher in Clark County. to read copies to the Arkansas Bar Center. 400 Blackstone and other relevant legal matter in West Markham. Little Rock. Arkansas earnest as a first step to becoming a lawyer. 72201. Featured on the cover. in a photograph by Pat Patterson, is the Old Supreme Court chamber in the Arkansas State Capitol building. The All inquiries regarding advertising chamber was first used in 1912 by a bench of should be sent to The Arkansas Lawyer five justices. Pat Patterson at the above address.
ON THE COVER:
July 1984/Arkansas Lawyer/I 17
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THE PRESIDENT'S REPORT moved forward with the preparation of a bill and plan to enact legislation establishing a Judicial Compensation Commission. Such a commission provides an objective way to review judicial
"JUDICIAL CRITIQUE" TO BE CONDUCTED By DENNIS 1. SHACKLEFORD
A Stronger Relationship With the Bench This Bar year which began for me in June, 1983, had a full agenda. Foremost in our efforts has been the establishment of a more meaningful relationship with the judiciary. Substantial progress has been made. Sharing ideas and coordinating efforts at the spring conference of the Judicial Council evidenced the successful improvement of communications between the
Bench and Bar. The Council met April 18-21. Included in the program were discussions on the
progress of legislation to establish a Judicial Compensation Commission, the upcoming judicial critique (poll), and establishing state trial practice committees.
The Association hosted a reception for the conferees. It was a proper m:'xture of business and social interchange.
salaries. The matter of proper compensation for the judiciary is not just a concern in Arkansas. It is receiving attention throughout the country. The headline in the April 16, 1984, issue of the National Law Journal reads, "Judges are Militant. Bitter Over Pay." The news story points out that judges have every right to be bitter. Inflation over the past fifteen years has cut the buying power of judicial salaries thirty to fifty percent. Many judges comment this has meant their families suffer because of their decision to join the Bench. Pension benefits have lagged so far behind that many jurists are forced to leave the Bench to insure themselves and their spouses an adequate old-age income. Rises in judicial salaries lag so far behind other occupations that many judges find themselves in a topsy-turvy world where a former law clerk in two years of private practice is earning far
more than his former judicial employer. The Association supports an independent judiciary. To be really independent the judiciary must be fairly compensated. This will retain the best minds and free judges from subtle pressures.
Judicial Critique (Poll) to Benefit Judges Rarely do judges hear much criticism from lawyers. What judges can learn from lawyers will help them perform and benefit the public they serve without impairing judicial independence. I reported to the Judicial Council this year the Association will make
Judicial Compensation Commission Legislation Supported
a survey. There are significant
The Association's committee headed by Sheffield Nelson has
changes from the past efforts. The name is changed to "Judiciary
Critique." The results are to be absolutely confidential to the judge. The Association will not release the results to the news media, and judges are discouraged to do so independently. Each judge will receive only the results applicable to that judge. For the survey to be representative, each member of the Bar should promptly and fully respond. This is not a sample survey. It should reflect the responses of the entire Bar. As such the survey can be viewed by the judges with confidence. The statistical results should convey a fair picture of the Bar's perception of the judges' performance. Clearly discern able approval should be a source of reassurance and re-enforce the
judges' performance in those areas. Widely-shared criticisms of other phases of performance should cause the judges to reexamine those practices.
The survey gives the lawyer a welcome opportunity to tell the judge under anonymity how lawyers view the judge's performance, and give the information privately, without embarrassment or ex-
traneous repercussion. Besides
educating the judge, the survey process can help improve relations between the judge and the lawyers practicing in that court. The credibility and acceptability of the judge's work on the bench is enhanced.
State Trial Practice Committees to be Studied At the long-range planning conference on March 30, 1984, a panel of Association members discussed the feasibility of having state trial practice committees similar to those existing in the Arkansas districts of the federal courts. The panel discussion concluded that a committee should be formed in each judicial district. The committee should meet at least twice each year to discuss any matters that would improve communications between the district Bench and (continued on page 135) July 1984/Arkansas Lawyer/l19
POINT OF VIEW/LETTERS WHY DO PEOPLE HATE LAWYERS? By Forrest E. Dunaway The local editorial columnist in the weekly newspaper was after lawyers again. Although the article was directed at a neighboring municipal judge, it was apparent from the tone of the article that justice was a mockery, the courts a sham and lawyers couldn't be trusted. I've read this type article a hundred times in my ten years of practicing law but this time was
shocked into the understanding that there's more evolving here than your garden variety hatred of lawyers. It is difficult to discuss why people hate lawyers since we are probably involved in more diverse activities than any other profession. Many never "practice" law, a
term I define as being involved in the formal conflict resolution process. loosely called the judicial system. No o'ne understands more than we do that there are specific lawyers in our profession who are
capable of an endless variety of reprehensible conduct. This is not limited to the legal profession but our profession is making an effort
to deal with truly unethical conduct through professional conduct committees.
I talked with several of my colleagues about why people hate lawyers, because they seem to be more articulate on the issue than
the general public.
THE ARKANSAS LAWYER welcomes point of view articles and letters from readers, The editor retains the right to edit them for space. All correspondence must be signed though names will be withheld on request. Send to the Editor, Arkansas Bar Association, 400 W, Markham, Little Rock, AR 72201, 120/Arkansas Lawyer/July 1984
Basically people don't understand the adversary system. They question how a lawyer can put forth an untenable position at trial. To them it's lying. We know that our position is untenable (although sometimes I wonder), but it is simply the best expression of our client's point of view. And, lawyers are associated with the morals of their clients. particularly in criminal matters. To the average person lawyers who represent radical positions are obviously not in-
terested in the truth and are probably radicals themselves. Pleadings in cases are a public record and open trials expose the weaknesses of lawyers who are simply human and have no special skills for dealing with the intense pressure of the profession. If you win. they love you. If you lose. or make mistakes, there is little sympathy from anyone and the system itself is blamed. The press also is responsible for sensationalizing the legal profession. certain trials and bizzare individual cases rather than pointing out how well the system generally functions. Have you ever seen a card of
thanks in the newspapers about the judicial system? "The family of Jane Doe would like to thank the judge, lawyers and everybody at the courthouse for a great trial. We feel much better having resolved our recent tortuous injury."
People expect too much of the judicial system. The entire judicial
have a "come see us and we'll find some kind of lawsuit for you" attitude. The law is a last resort when efforts to resolve problems have failed. The day will never come when both sides jump up after a trial, embrace the judge and wonder why they didn't come up with such a wonderful solution in the first place. The courts should help by being more accessible to the average citizen when conflicts are difficult to resolve. Some judges have a "what are you doing here" attitude w hen someone appears in court unrepresented. More "People's Courts" should be established. (Arkansas is way behind in this regard). On a broader societal level. I have come to the conclusion people have developed an irrational hatred of lawyers, the law and government because of a mis-
placed responsibility for solving societies problems. As far as the general public is concerned, lawyers are supposed to take care of injustice if it exists. In fact, injus-
tice has always existed and will always exist. The system is designed to forge a compromise or "relative" justice when everything else fails. It increases when the law is seen as the vehicle to "make us do right" since one group's perception of doing right may be to the severe detriment of another group. The public demands increased prosecution of essentially victim-
system is set up as a last resort in
less crimes with moral overtones
conflict resolution either between
such as regulations on the use of
individuals in civil matters or the individual and society in criminal
schools. These pursuits are totally
matters. Instead, lawyers are seen
hopeless since morality, right ac-
by many people as a "lirst resort"
tion and a religious and philosophical respect for life when enforced by law lead to oppression. The Supreme Court and Ameri-
when something goes wrong. I am
repeatedly amazed at people who want to retain lawyers and have never taken the time to contact the other party and resolve the matter. They just want the thing "lawyered" on. This recreation is
partly fostered by lawyers who
marijuana and religion in the
can Civil Liberties Union are
criticized when they point out that the State cannot interfere with certain individual choices. People don't want their rights protected.
they want their will exerted on the rest of society and think lawyers just aren't taking care of business. Perhaps the frustration toward lawyers is an expression of deep frustration with the way things are going. Society must realize that things cannot change without responsible participation in government and conflict resolution between each other. I see a sensitivity in the judiciary towards trying to improve the system. Lawyers can and must take the initiative in expanding and developing new ideas of conflict resolution while at the same time the public must understand and accept their responsibilities to the system and realize the limitations and role of lawyers. 0
dominates downtown Fayetteville as in days of yore. It was wholly constructed by skilled carpenters, woodwrights and roofers in nearby Springdale; then lifted bodily, flown to Fayetteville and settled in place by an Arkansas National Guard Army helicopter and crew. This was done in the early daylight hours to avoid traffic congestion and minimize danger to vehicle and foot traffic in case of untoward incident. None such occurred. Even so, hundreds of people lined the streets to observe the operation, which went off without a hitch. With thanks for your article and all good wishes, I am Judge Thomas F. Butt Fayetteville
Forrest E. (Gene) Dunaway is an attorney with Ozark Legal Services in Fayetteville. He has practiced law in Mountain View for about lO years and has served as deputy prosecuting attorney for Izard and Fulton Counties and as city attor-
Dear Judge Butt: Thank you for your letter of March 26. I appreciate your comments and your correction, although I am embarrassed to say that I have seen the courthouse many times since the steeple was restored and failed to correct. the error myself. In writing the piece I was working largely from information contained in the nomination forms that led to National Register listing for the courthouses. The Washington County Courthouse was nominated in 1972 and, consequently, the information was accurate at that time. It only proves that history isn't stagnant and one would always do well to double-check. I am placing a copy of your letter in our file on that structure so that the replacement of the steeple will be noted. Thank you again for taking the time to write. Sincerely, Jacalyn Carfagno
ney for several area cities.
LEITERS To the Editor: Dear Miss Carfagno: Your piece in the ApriL 1984 issue of the Arkansas Lawyer is read with interest and appreciation, especially since it features "my" County Courthouse. One small correction, which I think you will be glad to know about: The original steeple was. indeed, as your article states, removed in 1966 because of loose and falling slate tiles and generally hazardous condition. The steeple was restored, an exact duplicate of the originaL in September, 1974, and it proudly
To the Editor: Prior to his departure as Executive Director, Col. Ransick asked me to give a review on the Federal Criminal Trials as updated by James C. CisselL formerly United States attorney for the Southern District of Ohio. Having served as United States attorney for the Eastern District from 1968-1979 and having worked with Jim CisselL I gladly accepted the assignment. Upon receipt of the book, published by The Michie Company, I was amazed at the work that had been done by the author in completing a project formerly carried on by the United States attorney's office for the Southern District of New York and entitled "Proving Federal Crimes," The latter was a Department of Justice project and Jim Cissell expanded and improved the work. The only bad part of my assignment was the fact that my assigned book is not a novel or anything close to such. It is really a hornbook or a handbook that should be in the office of any lawyer who handles criminal matters in court. There is no possible way to review a book such as this without taking all the space given for the Arkansas Lawyer. Let me say that Cissell has done an excellent job and it is outlined for easy use. Since he served during the period I was United States attorney it is my pleasure to urge all attorneys who practice criminal law to purchase a volume of Federal Criminal Trials. It will make your task easier and possibly prevent a claim of ineffective counsel. W. H. "Sonny" Dillahunty partner of Dillahunty, Skelton & James Attorneys at Law
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chris barrier/out of context
WRITE IF YOU GET WORK. Sell-help and personal improvement are American pas-
sions. We work out with Jane Fonda and reduce with almost anybody. We sometimes expect miracles, but we always want results. We know that almost any kind of exercise is good for us, but we want the kind that does us the most good in the least time. We know what a balanced diet looks like, but we need to work it into an executive lunch.
Lawyers struggle with the need to improve their writing. As with exercise and diet. we know that the basic tools for improvement are simple: a good writer needs to do a lot of reading and writing. And, yes, there are ways to focus our efforts to get the best results. What this article doesn't do ... This article and the ones that follow don't presume to teach anyone
they don't have it). Zinsser discusses in friendly terms the process and problems of writing nonfiction. The second is Strunk & White's classic The Elements of Style, which is more technical and specific. The third is Wydick's Plain English for Lawyers, whose title accurately reflects its content
• •
Reading and understanding Zinsser does not and should not require much effort. He carefully explains what he means and offers vivid examples from other writers.
almost to excess. Some of his advice would seem obvious if we all followed it. which we don't. Write like yourself, says Zinsser, with a
and its no-nonsense approach.
consistent tone and a view to your
(Plain English for lawyers turns out to be remarkably like plain English for everybody else, if harder to achieve.) These books are readable and compact and, of course, can and should be read straight through. They can be kept for reference as well. The remaining group of books (such as Fowler's Modern English Usage and Houghton Mifflin Company's The Written Word) is more plainly for reference only.
audience. Do not affect in writing the air of stilted pedantry to which lawyers are so prone.
The hardest work of all ... Write simply, which is perhaps the hardest work of all. In almost every instance, your aim will be to communicate, not to impress or overwhelm. Again, Zinsser provides examples and exercises.
which entail some risk-you begin to notice the clutter in your own writing. You also begin to notice de-
how to write. or even to give many
Zinsser and the written word ...
ficiencies in the writing of others
tips for simple improvement. Their purpose is to describe several tools that any lawyer interested in improving his or her writing cao use to that end. Specifically, I will describe several books on writing (both legal and general), which can be read in the sequence described and which will almost certainly improve your writing. I will also describe several standard works to keep by your dictating machine which will
The first edition of Zinsser's book was published in 1976, and the current edition four years later (which is, in itself, a lesson in the value of revision). Zinsser has taught nonfiction writing at Yale and has broad experience as a writer-he understands both the process of
(which, of course, should be handled diplomatically). However, as most lawyers are frequently asked
make that writing easier.
well. whether the product is a letter. a brief. a motion. a speech or
words correctly. How many times
an article for a civic club newsletter. It simply requires effort and attention to technique.
some fact. when the writer or
writing and of writing improvement. He is now executive editor of
Book-of-the-Month-Club, which means he reads for a living. His book begins with the premise that writing non-fiction well
My aim is not to summarize or
is never easy and always requires
distill each of these works, but to give you enough of their flavor and content to let you know whether you want to give the suggested self-help short-course a try. Where we are headed ... The first is William Zinsser's On Writing Well (Second Edition, Harper & Row, 187 pp.; most bookstores can order it for $10-12 if
care, practice and attention. How-
122/Arkansas Lawyer/July 1984
to comment on or revise the work of
others (including that of associates), being able to read critically is a real strength, one which clients appreciate. Contrary to popular notion, clients are not impressed by documents they cannot understand. They do appreciate lawyers who can render legal documents in readable standard English. Use words carefully, words that say what you want to say. Webster's New Collegiate Dictionary is handy and serviceable, and Rogel's Thesaurus is still a great source when you've got the idea, but need a word to express it. Use
ever, it does not require a special gilt, like singing or painting. Anyone with the education needed to become a lawyer can learn to write
have you been "appraised" of speaker meant for you to be "ap-
prised?" Ain't that opprobrious, , , Use words effectively, says Zinsser. which may mean some resort
to artifice. For example, in the opening paragraph of his Gazette piece on the image of lawyers, Vic Fleming uses both "ain't what it's cracked up to be" and "opprobrious epithet." an interesting juxtaposition of the vernacular and the ponderous, carefully calculated to catch the reader's attention. Getting and keeping the reader's attention early on is im-
portant, says Zinsser, as it may affect the way they read your whole piece. Who needs a judge who doesn't want to read the rest of our brief. after the first para-
graph? Vic Fleming's two-sided snapper is a perfect example of a good lead in an informal article. Read on. read on ...
In a legal context. the first paragraph of a brief (preferably the first sentence) ought to make the judge want to read what you have to say. Contrast the leads in opposing briefs in the same recent case (paraphrased but accurate): Appellant-"This case involves the construction of Ark. Stats. Ann. §§99-101 and 107, and is governed by the rule in Smith v, Jones, 123 Ark. 456 ... " Appellee-"This is a case about money, human nature and the law." Give them the law later. First get their attention. Do not use over-
statement to do it. Saying your opponent's case is "absurd" or
"wholly without merit" may impress your client, but can hurt your credibility. Humor also takes special care. (Zinsser, by the way, can be very funny.) What sounded like a thrust of rapier-like wit when you dictated it may appear to the reader as meat-ax sarcasm, which is never usefuL however strong the
urge to use it. Read your stull aloud. If it doesn't read well out loud, it won't read well. period. In one of his many examples, Zinsser gives four alternative versions of Tom Paine's "these are the times that try men's souls," the worst of which is "Soul wise, these are trying July 19841Arkansas Lawyer/123
times." He makes his point.
LAWYERS' MART
Eschew trendiness ... Zinsser is perhaps too conserva-
tive on usage issues. but caution is
classified advertising for members
plainly warranted in picking up technical terms for use in another
context. "Interface," "input" and "feedback" have specific meanings in computer work, and it blurs those meanings (and the usefulness of the words) when we throw them around elsewhere in an effort to sound trendy. Think about how you're going to wind up a piece before you get there, but according to Zinsser, ending abruptly is not a serious offense. Continuing to string together words after you've laid out all of your ideas is.
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SERVICES AVAILABLE Zinsser also decries stylistic timidity (to which lawyers seem especially susceptible). We overuse qualifiers (like somewhat. rather and quite) and passive verbs, and cling to unnecessary adverbs and adjectives.
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exhibits no tendency to be commensurate with innate capacity, but that a considerable element of the unpredictable must invariably be taken into account. Zinsser supplies original. Ecclesiastes 9: \I: 1 returned and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favor to
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The Increasing Risks of Antitrust Liability By Patrick R. James and H. Edward Skinner
INTRODUCTION Local governments have been faced with an increasing number of antitrust suits as a result of two recent Supreme Court decisions. These decisions. City of Lafayette v. Louisiana Power & Light Company' and Community Communications Company v. City 01 Boulder'. are the last 01 a series of Supreme Court decisions eroding the so-called "state action doctrine." Under the state action doctrine, which was first enunciated in Parker v. Brown. 3 it was assumed that all governmental entities, including state agencies or other subdivisions of the state, were, because of their status, exempt from the antitrust laws. Wilh the erosion of this doctrine local governments have been faced with
antitrust suits for a number of activities, "including regulations of cable television businesses, operation of electric utility systems, operation of sewage treatment services. provision of public
Currently, in order for the state action doctrine to apply two tests must be met: "First. the challenged restraint must be '... clearly articulated and affirmatively expressed as state policy;' second, the policy must be 'actively supervised' by the State itself." Thus, local governments are not automatically exempt from the antitrust laws simply by reason of their status. water supplies, denial of
Q
tele-
phone franchise, zoning, leasing of parking spaces for baseball
games, regulating parking lot operators. operation of municipal
airports, regulating on-airport car rental concessions. regulation and licensing of taxis, awarding wrecker tow-in contracts, solid waste management, regulating hospital facilities, and creation of ambulance service systems. "4 At least two antitrust suits have been filed against Arkansas cities. The first suit was against the mayor and city council members of Heber Springs for granting an exclusive solid waste utility franchise for the collection and disposal of solid waste.' United States District Judge G. Thomas Eisele eventually dismissed the case holding that the city official's actions were protected under the state action doctrine.' The second suit has been filed against the City of Little Rock, its Board of Directors, and other parties alleging that the defendants violated Sections I and 2 of the Sherman Antitrust Act by enacting an ambulance service
ordinance.' The Complaint further alleges that the City ordinance incorporates major aspects of a
Editor's Note: Patrick R. James is an associate with the law firm of Gill, Skokos, Simpson, Buford & Owen, P.A., in Little Rock and is a member of the Antitrust and Trade Regulations Committee of the Ar-
kansas Bar Association. His practice is general civil litigation, including antitrust and civil rights defense. A 1982 graduate of the University of Arkansas at Little Rock School of Law, he served as assistant editor of the UALR Law Journal.
H. Edward Skinner is a member in the firm of Prince & Ivester, P.A .. in Little Rock. He is primarily engaged in general practice with an emphasis on administrative agencies and the Public Service l26/Arkansos Lawyer/July 1984
Commission. antitrust and general corporate law. He has been a member of the firm since its inception in January, 1984. He was vicepresident of Legal Services at ALLTEL Corporation (formerly Allied Telephone Company) in Little Rock before becoming a member pf the firm. A 1972 graduate of the University of Missouri School of Law at Kansas City, he also attended the University of Missouri School of Law at Columbia from 1968-70 and was a member of the Missouri Law Review. He is a member of the Antitrust and Trade Regulations Committee of the
Association. This article is a project of the Antitrust and Trade Regulations Committee.
"public utility model" under which, for it to be economically feasible, the municipally licensed company must be the only ambulance company allowed to do business in the City. The plaintiffs are seeking $50,000.00 in damages. Although judgments have been awarded against local governments for federal antitrust violations in only two cases to date. these judgments have been staggering. The first case in which such a judgment was awarded was Affiliated Capital Corp, v. City of Houston,' In that case the jury awarded a 2.1 million dollar judgment against the Mayor of the City of Houston and successful applicants for a cable television franchise in the City of Houston.
The district judge granted judgment n.o.v. in favor of the defendants and the plaintiff appealed. On appeal the Fifth Circuit reversed the lower court judgment and reinstated the jury's award of 2.1 million dollars.' In the second case, Unity Ventures v. County of Lake. a jury awarded a developer 9.5 million dollars against a county, a village and three officials. tO This award was automatically trehled to 28.5 million dollars hy the federal judge who presided over the case.
Currently, in order for the state action doctrine to apply two tests must be met: "First. the challenged restraint must be '. , . clearly articulated and affirmatively expressed as state policy;' second, the policy must be 'actively supervised' by the State itself."" Thus, local governments are not automatically exempt from the antitrust laws simply by reason of their
where the state has merely authorized or directed the challenged activity and that the local government action need not be compelled or mandated by the state." It is not clear whether the second p"mg of the Supreme Court's test. Le.. "active state supervision." is
applicable to local governments. In City of Boulder the Court specifically chose not to reach the question whether local governments "must or could satisfy the 'active state supervision' test focused upon in Midcw."" Relying on this language the Seventh," EighV' and Ninth Circuits" have specifically held that the active state supervision requirement does not
apply to traditional governmental functions. The following activities have been held to be traditional governmental functions or activities: fire prevention. police pro-
are undertaken pursuant to a local
tection, sanitation, public health, parks and recreation, public schools, hospitals, solid waste disposal. operation of municipol
government's home rule power
airfX>rts, ambulance service. regu-
sufficient to bring a local government under the state action doctrine since, "when the States position is one of mere neutrality" it "can hardly be said to have 'contemplated' the specific anti-
lation of taxicabs, sewage treatment, and public water supplies." The purpose of this article is to review particular Arkansas statutes which mayor may not provide protection to local governments under the state action doctrine. When applicable, statutes which affect counties will also be discussed. Specific attention will be given to whether a local government can grant an exclusive franchise or regulate businesses and be protected from the federal antitrust laws. Before discussing specific activities to determine whether they may be protected under the state action doctrine, the reader should be aware of two potential pitfalls. First, Article 2, ยง 19 of the Arkansas Constitution contains the following anti-monopoly provision: "Perpetuities and monopolies are contrary to the genius of a republic, and shall not be allowed..." Despite the apparent blanket prohibition, a grant of an exclusive
status. 12 Nor ore activities which
competitive actions. "'3
The Eighth Circuit has held that the clearly articulated and affirmatively expressed requirement
"is comprised of two elements: (I) the legislature must have authorized the challenged activity and (2) it must have done so with an intent to displace competition ..... Under this test. there must be both state authorization and contemplation of the challenged anticompetitive activity. "State authorization and contemplation can be found from comprehensive regulatory schemes, state supreme court decisions, actions of state agencies. or even broad au-
thority created under state law to undertake the challenged activity."" Despite some earlier authority to the contrary, the lower courts have generally held that the state action doctrine is applicable
franchise may not necessarily violate this section since the anti-
monopoly provision must be read and considered along with a local government's exercise of its police and public welfare powers." In Bridges v. Yellow Cab Co." the Arkansas Supreme Court held that the granting of an exclusive franchise for operation of a taxicab limousine service at a municipally owned airport did not offend the Constitution. The Court emphasized, however, that (I) the exclusive right was a narrow one, (2) the franchisee was required to provide service for the life of the franchise, and (3) the city council found there was not enough business for the service to be provided on a competitive basis. 24 Second, the Eighth Circuit in Westborough Mall, Inc. v. City of Cape Girardeau" has indicated that even if Arkansas law would bring the local government within the state action doctrine, the exemption could be lost if there is fraud or illegal conduct. The impact of the Westborough decision is unclear, but it could subject previously protected activities to the reach of federal antitrust laws. With these two caveats, the application of the state action doctrine to specific activities will now be discussed.
AMBULANCE SERVICES Arkansas cities of the first class with populations in excess of 35,000 have been granted broad powers to regulate, license and/or control emergency medical se!vices and ambulance operations "originating from within" their corporate limits. 26 Their powers include the right to regulate the rates or service fees for ambulance service 21 and the authority to license, franchise, or contract with ambulance companies on an exclusive basis." In granting these cities the right to grant exclusive licenses or franchises, the General Assembly legislatively determined that the "health, safety and welfare of the residents of the state" are harmed by the provision of municipal ambulance service on a competitive basis. 29 July 1984/Arkansas Lowyer/127
These broad powers of regulation have not been expressly granted to cities of the first class with populations under 35,000, cities of the second class, and incorporated towns, Nevertheless, these municipalities have been granted, in Ark. Stat. Ann, ยง 192319. authority to license or franchise emergency ambulance operations within their corporate limits," This legislative grant includes the right to franchise or license emergency ambulance services on an exclusive basis. Arkansas counties may establish public facilities boards and through these boards are. in effect. authorized to own and operate ambulances and to provide ambulance services to county residents." However, the public facilities boards have not been expressly granted authority to regulate or control private ambulance services nor have they been ex-
pressly imbued with power to
franchise or license ambulance services on an exclusive basis. From a review of the broad powers granted to cities of the first class with populations in excess of 35.000. it appears that in licensing and regulating ambulance service
within their corporate limits. the cities are entitled to protection under the state action doctrine. The first prong of the state action doctrine should be met by the fact that the General Assembly has explicitly authorized these cities to grant exclusive franchises or licenses and to regulate service
fees and charges. Moreover, the General Assembly has even made a legislative determination that ambulance service provided on a competitive basis may be injurious to the public's health, safety and welfare. This should be sufficient to evidence a legislative intent to displace competition.
The second prong of the test should be satisfied by the fact that ambulance service was held to be a traditional governmental function in Gold Cross Ambulance and Transfer v. City of Kansas City. 32 In Gold Cross the United States Circuit Court of Appeals for the Eighth Circuit reviewed a similar statutory scheme which permitted cities to provide ambulance service to their citizens on a proprietary basis or throug h one or more franchisees. 33 Pursuant to statutory authority, the City Council had im-
plemented a single-operator ambulance system to provide all of the city's emergency and nonemergency service. The city's ambulance system was managed by a non-profit public trust. In rejecting the contentions of ambulance providers not awarded a share of the city's franchise that the city's plan violated federal antitrust laws, the court found that Missouri's statut-
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ory scheme satisfied the first prong of the state action doctrine and rejected the notion that the second prong of the test. active state supervision, was necessary before antitrust immunity was available to the city. From a review of Ark. Stat. Ann. § 19-2319. however, it is less certain that the first prong of the state action doctrine would be extended to other Arkansas municipalities. While they appear to have been granted statutory authority to issue exclusive franchises or grant exclusive privileges. they have not been authorized generally to regulate the rates and activities of providers of ambulance service. Their powers are certainly not as extensive as those granted cities of the first class with populations in excess of 35.000. Thus, the fact that the General Assembly did not grant them the same broad powers could be argued as evincing a
legislative intent not to displace competition with regulation. It is even more difficult to predict whether counties are entitled to protection under the state action doctrine. There is no express statutory authorization permitting counties to license emergency or nonemergency ambulance pro-
viders or to regulate their operations. It is true that the Public Facilities Boards Act" does contain a "clearly articulated and affirmatively expressed" state policy encouraging counties and municipalities to establish or improve ambulance service. but this. standing alone, does not necessarily indicate a legislative intent to displace competition. Consequently, it is questionable whether the standards set forth in City of Lafayette and City of Boulder are met.
TAXICAB SERVICES
Arkansas cities of the first and
second class have been granted exclusive power to permit. regu-
late. and control taxicabs within their corporate limits." Included in this power is the right to approve or disapppprove or to prescribe maximum rates or tariffs charged
by taxicab operators in the city." Taxicab companies are specifically prohibited from operating in cities of the first and second class without first procuring a permit from the city council to do so" and the cities are authorized to grant or refuse these permits.:JI One re-
quirement for such a license is that the taxicab owner have liability insurance. 39
It would appear that the statutes vesting cities with regulatory and licensing powers over taxicabs are part of an overall scheme established by the State for the regulation of taxicab services. Ark. Stat. Ann. § 19-3515 even compels cities to act before a taxicab company
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can even be licensed to operate on the city streets. Since cities regulate taxicabs directly rather than delegating the responsibility to private parties. the active state supervision requirement is met. 40 Although the statutes do not specifically provide municipalities with the power to grant an exclusive taxicab franchise, it is certainly arguable that the statutes' comprehensive regulatory schemes and the broad and exclusive authority granted to cities of the first and second class should provide protection under the state action doctrine." Additionally, as discussed earlier." the Arkansas Supreme Court has upheld the granting of an exclusive five year franchise of a limousine cab service at a municipal airport. 43 Finally, the Ninth Circuit has held that regulation of taxicabs is a traditional municipal function and that a city is not required to prove active state supervision "when it franchises taxicab companies and regulates taxicab faces within the city."" There is little authorization for counties to regulate the operation of taxicabs. The strongest argument is found in Ark. Stat. Ann. ยง 17-4109 which authorizes counties to establish subordinate service districts. One such district which can be organized is for transportation services and public transportation services.4$ Even if applicable to taxicabs, this statute does not appear to contemplate anticompetitive regulation of taxicab services.
group. Although cities are reserved the right to regulate wrecker services by implication, the statutory scheme" does not appear to encompass regulation which would affect competition. The only arguable exception is found in Ark. Stat. Ann. ยง 19-3501 which allows cities of the first class to fix rates and prices for the transportation of persons and property in coaches. cabs. and omnibuses from one part of the city to another. Additionally. cities have the power to regulate all vehicles which travel on their streets." In construing this statute the Arkansas Supreme Court has held that cities "have expressly been given control and supervision of the streets and highways within their limits."" The United States District Court for the Northern District of Illinois in Campbell v. City of Chicago," held that an Illinois statute similar to Ark. Stat. Ann. ยง 19-2329 did "not constitute a clearly articulated and affirmatively expressed policy to displace competition. "SI The above described Arkansas statutes and controlling authority, which also arguably encompass wreckers, appear to be aimed at the regulation of motor vehicles for safety and taxing purposes. A municipality faced with an antitrust suit for regulation of wrecker tow-in services on an anticompetitive basis would be hard pressed to find a "clearly articulated and affirmatively expressed state policy" authorizing the challenged activity.
WRECKER TOW-IN SERVICES
SOLID WASTE DISPOSAL
There is little Arkansas statutory authority for the regulation of wrecker tow-in services by cities. The strongest authority can be found in Ark. Stat. Ann. ยง 19-3510 which states that municipalities shall have the rig ht to regulate and tax all motor vehicles operating within their corporate limits. In Gates v. Reese" the Arkansas Supreme Court held that wreckers were not exempted from this 130/Arkansas Lawyer/luly 1984
State law imposes an obligation on all municipalities and counties to provide a solid waste management system adequate to handle solid waste generated or existing within their incorporated limits or boundaries. S2 Moreover, the General Assembly has declared that state policy supports regulating and controlling the disposal of solid waste to protect the public health and welfare." To accomplish these goals, municipalities and counties have
been granted broad powers to regulate and control the collection and disposal of solid waste. They have been authorized to own, operate and construct solid waste disposal facilities" or to contract for or lease such facilities ss . Cities and counties have also been granted the power to establish policies "concerning all phases of the operation of a solid waste management system."" They may set. levy and collect fees and charges "as may be appropriate to discharge" their responsibilities" and to impose them on all persons who benefit from the solid waste management system. 51 Finally, cities and counties have been empowered to contract with other cities. counties. private citizens or any combination thereof, to achieve the broad state policies set forth in the enabling legislation. S9 In view of the extensive authority given cities and counties to regulate virtually all facets of solid waste disposal. it appears that a city's or county's acts implementing a solid waste management plan would be entitled to state action protection;60 especially in light of the fact that solid waste disposal has been held to be a traditional governmental function." Even though there is no explicit statutory language authorizing the provision of solid waste disposal services on an exclusive basis either by the city or county in its own capacity or by its franchisee, there is certainly a broad statutory basis for arguing that the General Assembly must have recognized that reasonable restraints on competition might be necessary to implement solid wastes disposal plans. This should be sufficient to pass muster under the "clearly articulated and affirmatively expressed" standard. The broad powers granted an Arkansas municipality to implement a solid waste disposal plan were recently considered in L & H Sanitation, Inc. v. Lake City Sanitation, Inc." In that case, Judge Eisele rejected a claim that the
granting of an exclusive solid
zones and prescribe the shape, size or characteristics of each dis· trict or zone. Included in this latter power is the rig ht to designate the types of businesses which may lawfully be carried on in a particular district or zone, or indeed. whether any business or commercial enterprise may be conducted
waste utility franchise violated the federal antitrust laws. In holding that the city's action was protected uncler the state action doctrine, l udge Eisele concluded that the General Assembly had "clearly articulated and affirmatively expressed" a state policy of regulation of waste management which empowered municipalities to im-
therein. 6s
Whether a governmental agency's exercise of its zoning or land use powers is entitled to immunity from liability under the federal antitrust laws will depend upon an in-depth analysis of the facts of each case. It appears that in the absence of a conspiracy or illegal agreement between city or county officials and private citizens, the enforcement of reasonable zoning or land use restrictions is protected by the state action doctrine. Even though the exercise of zoning powers has never been found to constitute a traditional
pose anticompetitive restraints.
ZONING RESTRICTIONS Both municipalities 63 and
CQun-
ies 64 have been granted authority
o enact comprehensive ordinances prescribing reasonable zoning and land use restrictions. Among their delegated powers is the right to regulate the type and location of buildings and structures, the uses of land and buildings, and the density and distribution of population. They may also designate separate districts or
• • • •
governmental function, it would be hard to find a clearer example of a legislative delegation of police powers to subordinate governmental bodies to protect the public. However, it is clear that if city or county officials use zoning powers in bad faith to prevent an individual from reasonably using or developing his real property, their exercise and use of the city's or county's zoning powers may not be immunized." As the United States Circuit Court of Appeals for the Eighth Circuit recently noted in Westborough Mall, Inc. v. City of Cape Girardeau: 67 [A] conspiracy to thwart normal zoning procedures and to directly injure the plaintiffs by illegally depriving them of their property is not in furtherance of any clearly articulated state policy. Simply stated, state action immun-
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ity may not be extended to protect otherwise unlawful conduct accomplished through exercise of a governmental body's zoning authority.
CABLE TELEVISION Arkansas statutory authorization for local government regulation of the cable television industry is nonexistent. Not only is cable television not a public utility," the industry is specifically exempted from regulation by the public service commission. 69 The total lack of statutory authorization and case law surrounding local government regulation of cable television franchises evinces a position of neutrality as far as the State is concerned. This lack of State law granting local governments authority to regulate cable television is similar to the facts in City of Boulder where the city regulated cable television franchises pursuant to its status as a home rule municipality. In City of Boulder, the Supreme Court specifically held that the state action doctrine was not applicable and that the city was subject to an antitrust suit. Local government regulation of the cable television industry is one of the most fertile areas of local government antitrust litigation. More importantly, it is one area in which local governments tend to have the least protection under the state action doctrine. 70 An excellent example of this is Catalina Cablevision Assoc, v. City of Tucson 71 in which a cable television company brought an antitrust suit against the City of Tucson for granting an opposing cable television company a license to operate in the City. The plaintiff alleged that the City and the cable company agreed that the City would issue only one license and that the net effect of this agreement was to establish a monopoly. The City argued that it was immune from antitrust liability under the state action doctrine because state law granted municipalities authority to regulate cable tele132/Arkansas LawyerlJuly 1984
Local government regulation of the cable television industry is one of the most fertile areas of local government antitrust litigation. More importantly, it is one area in which local governments tend to have the least protection under the state action doctrine. vision. 72 The court rejected the City's state action argument and held that state law only gave the City power to regulate cable television as was the case in City of Boulder, "Because the statutes nowhere address or imply that it was the state's policy to displace competition with a monopoly, city cannot take ad vantage of Parker immunity.u 73 Even if it is found that state action immunity is lacking, it does not necessarily follow that there is a violation of the federal antitrust laws for granting an exclusive cable television franchise. The town of Le Plata, Maryland, recently sought an opinion from the Maryland Attorney General as to whether it could grant an exclusive cable television franchise. The Attorney General concluded that the town would probably be immune under the state action doctrine, but added that even if it was not immune "several different antitrust theories conceivably could be applied to Le Plata's grant of an exclusive or exclusionary franchise. "74 The Senate has recently passed a bill" declaring "that competition is a more efficient regulator than government of the provision of diverse communication services and as competition continues to develop, the deregulation of communication services should occur."" The bill, which is presently before the House, takes away much of the powers of state and local governments to regulate the cable television industry, but still allows the awarding of franch-
ises for cable televisions. However, once a franchise is awarded. the franchisee has a right that the franchise be re-awarded and, should the franchise be denied, there are provisions for binding arbitration.
CONCLUSION The above are just a few examples of activities which could subject Arkansas local governments to antitrust suits. The threshold inquiry in determining whether the local government conduct is protected under the state action doctrine involves an examination of state law to determine if there is direction or authorization for the anticompetitive activity. Even if it is found that the challenged activity is in furtherance of a "clearly articulated and affirmatively expressed" state policy, the local government is faced with the question of whether "active state supervision" is required and, if so required, whether it has been met. In any event. it is clear that local governments are not automatically immune from antitrust liability and must now be vigilant as to which activities could subject them to antitrust liability. 0
FOOTNOTES , 435 U.S. 389 (1978). , 455 U.S. 40 (1982). , 317 U.S. 341 (1943). 4 James, Municipal Defense to Antitrust Liability, 6 UALR L.J. 273, 274 (1983) (loot¡ notes omitted) (hereinafter "James"). S L & H Sanitation. Inc. v. Lake City Sanitation. Inc .. U.S.D.C. No. B-C-82-93. I See. infra note 56. and accompanying text. 1 Patient Transfer Service v. Shackleford. et ai, U.S.D.C. No. LR-C-84-161. â&#x20AC;˘ 519 F.Supp. 99i (S.D. Tex. 1981). I AffUiated Capital Corp. v. City of Houston, 700 F.2d 226. 227 (5th Cir. 1983). On August 23. 1983 the Fifth Circuit granted a rehearing. Affiliated Capital Corp.. 714 F.2d 25 (5th Cir. 1983). Oral arguments were heard January 9. 1984. 10 The National Law Journal. January 30. 1984. at 3. col. l. II California Retail Liquor Dealers ASBO. ciation v. Midcal Aluminum Inc .. 445 U.S. 97. 105 (1980) (quoting City of Lafayette. 435 U.S. at 410). l~ City of Lafayette. 435 U.S. at 408. U City of Boulder. 455 U.S. at 55. 14 Gold Cross Ambulance and Transfer v.
City of Kansas City. 705 F.2d 1005. lOll (8th Cir. 1983) citing City of Boulder. 455 U.S. at 51-52; City of Lafayette. 435 U.S. at 415). U James. supra n.4. at 279 <footnotes omitted). It E.g.• Gold Cross Ambulance and Transfer v. City of Kansas City. 705 F.2d 1005. 1012 n.11 (8th Cir. 1983); Alfiliated CapHal Corp. v. City of Houston. 7OOF.2d 226.237 (5th Cir.) rehearing granted. 1983-2 Trade Cases (CCm 65. 597 (1983); Town of Hallie v. City of Eau Claire. 700 F.2d 376.381 (7th Cir. 1983). 11 City of Boulder. 455 U.S. at 51-52 n. 14. •• Town of Hallie v. City of Eau Claire. 700 F.2d 376 (7th CiI. 1983). appealliled. • 1 Gold Cross Ambulance and Transfer v. City of Kansas City. 705 F.2d 1005 (8th Cir. 1983). 21 Golden State Transit Corp. v. City of Los Angeles. 1984-1 Trade Cases (CCm 65. 878 at 67. 671 (9th Cir. 1984). 21 James. supra note 4. at 286; Golden State Transit Corp. v. City of Los Angeles. 1984·1 Trade Cases (CCH) 65.878 at 67.671 (9th Cir. 1984) !taxicabs). n North Little Rock Transp. Co. v. City of NorthLHtle Rock. 207 Ark. 976. 184 S.W.2d 52. 55 (1945). " 241 Ark. 204. 406 S. W.2d 879 (1966). u Id. at 880. Awards of exclusive franchises pwsuant to Ark. Stat. Ann. § 73-240. and regulations promulgated by the Arkansas Public Service Commission. have also been regularly upheld. E.g .• City of Van Buren v. 64-71 Highway Water Co.. 270 Ark. 466. 605 S. W.2d 4i9 (1980). " 693 F.2d 733. 746 (8th Cir. 1982). " Ark. Stal. Ann. H 19-5903. 19-5094 [Acts 1981 (1st Ex. Sess.). No. 23. H 3 and 6]. These sections are part of the Municipal Ambulance Licensing Act. 27 Ark. Stat. Ann. 19--5003. 21 Ark. Sta1. Ann. 19--5903. 19--5904. 21 Ark. Stat. Ann. § 19-5902. Cities of the first class with populations in excess of 35.CXXl are also permitted to own and operate ambulances and to provide ambulance service to their own citizens on a proprietary basis. It is not entirely clear how a city which owns and operates an ambulance service could comply with the competitive solicitation requirements of Ark. Sta. Ann. H 19-5902 and 19-5906. The city might. however. own and operate ambulances through an exclusive franchisee/lessee selected through a competitive bid process. 21 Nei1her ambulances nor ambulance operalions are explicitly referred to in this provision. but 1he term "emergency medical services" used in the statute is defined in Ark. Stat. Ann. § 19-5903 as in· eluding transportation of the critically ill or injured. Likewise. the term "emer· gency medical health care facilities" is defined in Ark. Stat. Ann. § 20-1703(w) to include ambulances and emergency vehicles. These statutes are in pari materia and must be construed cons is· tently with each other. Each of these sec·
lions was enacted as part of the Municipal Ambulance Licensing Act. Ac1S 1981 (1st Ex. Sess.). No. 23. §§ 3. 8(a). 9. As such. it is reasonable to interpret the grant of authority in Ark. Stat. Ann. § 19-2319 as including the right to regulate and control emergency ambulance operations. 11 Ark. Stat. Ann. 20.1704. " 705 F.2d 1005. 1014 (8th Cu. 1983). lJ Mo. Rev. Stat. § 67.300. '4 Ark. Stat. Ann. § 20.1701. et seq. [Acts 1975. No. i42. § I. et seq.). n Ark. Stat. Ann. § 19-3513. n Id. " Ark. Stat. Ann. 19-3513. u Id. U Ark. Stat. Ann. § 75-203. 41 Golden State Transit Corp. v. City of Los Angeles. 1983-1 Trade Cases (CCH) 65.448 at 70.558 (C.D. Cal. 1983). It should be noted. however. that Golden State assumes that the active sta1e supervision requirement does not apply to local governments. tl See e.g.. Central Iowa Refuse Sys1ems v. Des Moines Metropolitan Solid Waste Agency. 7i5 F.2d 4i9, n.ll (8th Cir. 1983); Gold Cross Ambulance and Transfer v. City of Kansas City. 705 F.2d 1005. 1011 (8th Cir. 1983). U See. notes 22 through 24 and accompanying text. U Bridges v. Yellow Cab Co.• 241 Ark. 204. 406 S.W.2d 879 (1966). But see North Little Rock Transp. Co. v. City of North Little Rock. 207 Ark. 976. 184 S.W.2d 52 (1945). t4 Golden State Transit Corp. v. City of Los Angeles. 1984-1 Trade Cases (CCH) 65.878 at 67.671 (9th Cir. 1984). .. Ark. Stat. Ann. § 17-4109(3) (d). .. 185 Ark. 983. 50 S.W.2d 236.237 (1932). " Ark. Stat. Ann. §§ 19·3501-3511. U Ark. Stat. Ann. § 19-2329. tt Willis v. City of Fort Smith. 121 Ark. 606. i82 S.W. 275. 276 (l9i6). u 1983.2 Trade Cases (CCH) " 65.684 at 69,299·199 (N.D. Ill. 1983). slid. U Ark. Stat. Ann. § 82·2705. 82-2706 [Acts 1971. No. 237. §§ 5. 6 as amended}. These sections are part of the Arkansas Solid Waste Management Act. s, Ark. Stat. Ann. § 82-2702. St Ark. Stat. Ann. 82-2713. lJ Id. .. Ark. Stat. Ann. § 82-2705(c). 82-2706(e). See also. Ark. Stat. Ann. § 82-2719(c). " Ark. Stat. Ann. § 82-2705(b). 82-2706(b). u Ark. S1at. Ann. 82-2719(0) and (b). " Ark. Stat. Ann. § 82·2705(a) and (d). 82· 2706(0) and (d). 82·2713. 82-2720. 10 Central Iowa Refuse Systems. Inc. v. Des Moines Metropolitan Solid Waste Agency. 715 F.2d 419 (8th Cir. 1983). II Id. 01 428. 12 No. B-C-82-93 (£.0. Ark .. Batesville Div. 1983) appeal filed. Apart from the consideration of the federal antitrust laws. Judge Eisele noted that the granting of an exclusive solid waste utility franchise was consistent with Arkansas
law as enunciated by the Arkansas Supreme Court in Geurin v. City of Little Rock. 203 Ark. 103. 155 S_W.2d 719 (1941). See also. Annot.. Validity of Statutory or Municipal Regulations as to Garbage. 15 A.L.R. 287 (1921); 72 A.L.R. 570 (1931); and 135 A.L.R. 1305 (1941). ., Ark. Slat. Ann. § 19--2825. 19-2828. 192829. I t Ark. Slat. Ann. 17-1112.17-1113. IS Arkansas courts have recognized tha1 the enforcement of zoning restrictions can have the eUect of creating a "monopoly" of the usable business or commercial real property in a particular locale. City 01 LitUe Rock v. Sun Building & Developing Co.. 199 Ark. 333. 134 S.W.2d 582 (1939). .. Mason City Center Associates v. City of Mason City. 468 F.Supp. 737 (N.D. Iowa 1979). aU'd in part and rev'd in part. 671 F.2d 1146 (8th Cir. 1982); and Schiessle v. Stephens. 525 F.Supp. 763 (N.D. Ill. 19B1). "Bad faith" use of a city's orcounty's zoning powers could be aimed at benefilting the landowner's competitor or the city or county itself because it wishes to com· pete with the landowner. Along these lines. see Parks v. Watson. 716 F.2d 646 (9th Cir. 1983). in which Ihe court reversed a lower court's granl of summary judgment in favor of the defendants on the plaintiff's antitrust claim that the defendants' refusal to vacate plaited city streets unless the plaintiffs first transferred to the city valuable geothermal wells violated federal antitrust claims. The city at t he time operated other geothermal wells on a proprietary basis. " 693 F.2d 733. 746 (8th Cir. 1982). .. Ark. Stat. Ann. § 73-20i(d). I I Ark. Stat. Ann. § 84-103.3. 71 City of Boulder n.2; Affilia1ed Capital Corp. n.5. 71 1984.1 Trade Cases (CCm 65.789 (D.C. Ariz. 1983). 71 Id. at 72.266. n Id. at 72.267. H Opinion of the Attorney General of Maryland (to Town Manager Krebeck). 1984-1 Trade Cases (CCH) 65.875 at 67.652 (1984). Although beyond the scope of this article. the Attorney General dealt in depth with various antitrust theories in concluding that the granting of the exclusive franchise could be upheld without the protections of the s1ateaction doc1rine. H S.B. 66. ,. S.B. 66. § 8.
July 19B4/Arkansas Lawyer/133
IN
MEMORIAM Public Relations, Audit. Jurisprudence and Law Reform, Resolutions, Uniform Laws, Insurance
Law, Constitutional Reform and Banking Law Committees. He also chaired the Association's Young Lawyers' Section. Huie was also president of the Prosecuting Attorneys Association, secretary of the Judicial Council, secretary of the Judicial Retirement Board, secretary of the State-Federal Judicial Council and chair of the National Conference of
Court Administrative Officers.
C. R. (Dick) Huie C. R. (Dick) Huie. aged 75, an Arkadelphia attorney and the first executive secretary of the Arkansas Judicial Department, died Saturday, February 25. 1984. A native of Arkadelphia, Huie was appointed executive secretary of the Judicial Department on July I. 1965. He retired on December 31. 1979. Huie was elected to the state House of Representatives from
Clark County and served in the 1933 session. He was elected prosecuting attorney of the Eighth Judicial District in 1938 and served two terms.
He was appointed circuit judge of the Eighth District in 1951 and served two years. He was also a
former Clark County municipal judge. Huie was in the Navy during World War II and participated in the capture and occupation of Saipan, Tinian, Guam. Iwo lima
and Okinawa and participated in the occupation of Japan. He received the Bronze Star and was serving as Flag Lt. to the Fifth Fleet Commander at the war's end. He was separated from the Navy with the rank of lieutenant commander. A member of the Arkansas Bar Association for 47 years, Huie served terms on the Membership, 134/Arkansas Lawyer/July 1984
He was chair of the Arkadelphia Water and Sewer Commission, president of the Arkadelphia Chamber of Commerce and president of the Arkadelphia Rotary Club. Huie was also a member of the American and Southwest Bar Associations.
He was admitted to the Bar in 1931 and entered law practice with his father. He was the son of Mr. and Mrs. R. W. Huie, Jr.. and the grandson of Capt. R. W. Huie, an early settler of Arkadelphia. Huie was a graduate with honors of the University of Arkansas Law School and of Henderson State Teachers College (now Henderson State University). He was a member of the debating team and football team when Henderson was state college champion. He received the Distinguished Alumnus Award from HSU in 1977. He was a trustee and lifelong member of the First United Methodist Church in Arkadelphia. He served on the Board of Stewards, as church school superintendent and sang in the Chancel Choir. Survivors ale a son, Cyrus Richard Huie, Jr., of Dallas, Texas; a daughter, Diane Huie Balay of Little Rock; a brother, William O. Huie of Austin, Texas; and three grandchildren.
Elton A. Rieves,
Ir.
Elton A. Rieves, Jr.. aged 75, of Marion, died Friday, March 23, 1984. A native of Marion, Rieves practiced law for 53 years and was of counsel with the Rieves and Mayton law firm in West Memphis. He had been a special justice for the Arkansas Supreme Court. He was a graduate of the University of Memphis Law School (now known as the Memphis State Law School) and attended Arkansas State University. He passed the Arkansas Bar Examination in 1928, but was not allowed to become a member of the Bar until reaching his 21st birthday in 1930. Rieves was a Crittenden County deputy prosecuting attorney from 1933-37, was the mayor of Marion from 1939-43, was a government appeal agent for local Board B in Crittenden County from 1940-47 and was a member of the Board of Education, School District of Marion, from 1945-50. He was also a member of the Arkansas State Board of Law Examiners from
1955-58. He was a member of the Arkansas Bar Association for more than 30 years. He served on the Judicial Nominations, Unification of the Bar, Reorganization of the Bar, Preceptorship, Tax Trust and Estate Planning and Legal Internship Committees. He also worked to revise Arkansas' Civil Procedure. Rieves was past-president of the Crittenden County Bar Association, a member of the American
Bar Association, American Judicature Society, the Association of Insurance Attorneys and was a Fel-
low in the American College of Probate Counsel. He was acti ve in the Marion First
United Methodist Church and was a thirty-second degree mason. Survivors are his wife. Grace A. Rieves; a son, Elton A. Rieves III. of West Memphis; a daughter, Sally Conley, of Albuquerque, New Mexico; a step-daughter, Rose-
IN MEMORIAM (continued from page 134)
President's Report (continued from page 119)
Bar, and trial practices in those
mary Rose. of West Memphis; three grandchildren and one step-grandchild.
Donald Paul Callaway Donald Paul Callaway. aged 49. of Fort Smith. died Sunday. April I, 1984.
Callaway was a partner in the Bethell, Callaway, Robertson and Beasley law firm in Fort Smith. He had been a member in the firm since 1961. He was a native of Fort Smith. He was past-president of the Sebastian County Bar Association and member of the American Bar Association and Trial Lawyers of America.
Callaway was a member of the Arkansas Bar Association for 25
courts.
The concept met with such verbal approval by the trial judges at the Judicial Council conference that a committee was appointed to study the proposal. That committee is to report at the Council's next meeting in October, 1984. In the event the report is favorable, the Association will undertake to seek official status of trial practice committees through action by the Arkansas Supreme Court. This report will be published in the July issue of the Arkansas Lawyer and is my last report. As Sam Goldwin said, "Forecasts are dangerous, particularly those about the future." However, because the Association's activities do not neatly begin and end with
the president's term, I am going to assume the danger. The tradition of excellence is well established with our Association publications, and will continue. The program for our Fall Legal Institute will be outstanding under the direction of Dean Jake Looney. The work of the special committees on legislation for a Judicial Compensation Commission, mandatory continuing legal education, and the Model Rules will be successfully completed in 1984-85. The Association will be guided under the able leadership of Bill Wilson. The capable administration of our fine executive director, Bill Martin. will bring quality services to the Association members. I have greatly enjoyed the distinction and privilege of being your president. I thank each of you for the opportunity to lead this line lawyer organization. 0
years. serving as vice-chair and
secretary of the Family Law Section and as a member of the Federal Legislation and Procedures Committee. He was admitted to practice before the United States Supreme Court, the U.S. Court of Appeals and the U.S. District Court. He was a member of the Defense Research Institute, Inc" the Arkansas Western District Selective Service Appeals Board and the Western Arkansas Legal Services Board of Directors.
Callaway was past-president and district governor of the Sertoma Club, past-president of the Fort Smith Symphony, pastpresident of the Toastmasters Club. secretary-treasurer of the Western Estate Planning Council and was a member of the First United Methodist Church. He attended the University of Arkansas and the U of A Law School. He was admitted to the Bar in 1959 and joined the Army, where he served in the Judge Advocate General's Corps until 1961. attaining the rank of major. He returned to Fort Smith in 1961 to start his law practice. He remained in the Army Reserve until 1970. Survivors
are
his
mother,
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The Arnolds of Southwest Arkansas 102 YEARS OF LAW In 1879, William Hendrick Arnold, a seventeen-year-old school teacher in Clark County, began in earnest to read Blackstone and other relevant legal matter as a first step to becoming a lawyer. His formal education had included attendance at Ansley's Academy at Artesian, a kind of preparatory school that his father David Saxon Arnold, a farmer, had helped establish; but the considerable learning that he acquired thereafter was entirely by dint of individual effort. David Saxon Arnold had received a classical education at Erskine College in South Carolina in the l840s before moving to Arkansas, but much formal education for his family was made impossible by the civil war and its aftermath. In 1862, David enlisted in the confederate cause in El Dorado, and he returned home in 1864 after being discharged as a captain in the Louisiana Cavalry. His wife Temperance Lucinda Arnold, speaking of his military commissions, wrote: "I remember the old
talked of them, and looking back now it seems to me we laid it all down and tried to forget all its horrors. I do not know what became of his sword.'" During the war, the family became refugees and settled for a time in Miller County near Garland City until the war ended. After the war, of course, there was very little in the way of education available. William Hendrick Arnold wrote that "we never had any schooling in those days other than for a few months in
papers with the seals. worn and
sion. They had their own cook with
broken where they were folded. They were such sad old relics, fu-
them, and the family, consisting of my mother and us children, stayed out of the house, and I never heard
nereal in every respect. We never
the year at uncertain intervals.
Teachers could not be had as the people were all very poor on account of the ravages of the civil war."2
It would be some time after the war ended before even normal
civil regulation, much less anything resembling schools, could be very firmly established. David Arnold's cotton was sometimes stolen by the Union soldiers occupying South Arkansas. On one occasion, William reports, "a cavalcade of these officers came to our house ...and simply took posses-
By Morris S. "Buzz" Arnold 136/Arkansas Lawyer/July 1984
such frying and cooking as went on in our kitchen. I came very near
starving as these men had spent the previous night with us, and after they had gotten through eating their dinner which I remember was cooked with so much noise and sputtering, there was one biscuit as large as a saucer left and I made a grab for it, but my mother seized me and told me not to touch it. She thought it was a Yankee biscuit, and threw it out.'" Why William turned to the law is not altogether clear. Perhaps it was because his paternal grandfather Ira Arnold had been a trial judge in South Carolina as had others of his eighteenth-century ancestors, Just as likely, it was because farming was not much to his liking, Recalling the days when his work at Ansley Academy had been interrupted by farm duties, he wrote that he "plowed up new ground in which there were roots of elm trees running all around on top of the ground. I made some marvelous escapes and sometimes the plow would strike a stump or root and the handles would be thrust against me, other times the roots
would fly back and strike my knees and shins. I pursued this work with
so much energy that one of my knees swelled up for six weeks, and while I was in bed I continued my studies. '" It was then, he said, that he read "history, biographies of great men, exploits of great generals, especially Napoleon, and had it in my mind that I possessed great military genius, and resolved to be a general in war, and a lawyer in time of peace, , ,These golden dreams have recurred with less frequency as the years have gone by, and I have reached the conclusion that a good, reliable citizen is worth more to a country than some of those who agitate and bring on strife. ,,~
William's ambition to become a lawyer, however. was in fact realized. In 1881 he took up the study of law in the offices of Warren & Mitchell in Prescott. Like most nineteenth-century legal apprentices. he did not think very highly of the tutelage that he received, "With references to reading law in the office of Messrs, Warren and Mitchell." he wrote, "it may be said that, so far as my knowledge goes, students are, in the main. always self-instructed, the old lawyers seldom ask any
L to R: Sheppard Arnold, Thomas Saxon Arnold, Richard Lewis Arnold. William Hendrick Arnold. Jr. (1893-1977). William Hendrick Arnold III. and Richard Sheppard Arnold. The picture in the back is of William Hendrick Arnold (1861-1946),
questions of the students with reference to books, and the conver路 sation seems to relate to practical matters or incidents of the present time and in detailing their own experiences and successes, their fai-
lures never mentioned,'" Indeed, he said that his mentors "were seldom in the office,'" In 1882 he was admitted to the bar and, after practicing a few months in Prescott. in
1883 he moved to Texarkana and established an office. He arrived in Texarkana, a town barely ten years old, with fifteen second-hand law books, a bed and mattress, "a little old tin or zinc trunk," and forty dollars in cash.' He rented a small room from W. J. Smithers, a justice of the peace, for $2.50 a month. His circumstances were something less than palatial: "There were holes in the floor," he recalled, "through which the rats, large and smalL ran back and forth all the live long night. He also claimed that "the dirt on the floor and tobacco juice had accumulated and must have been half an inch thick in places," but he "slept securely in that old building, although one would not have thought it very secure as there were fires in Texarkana at that time nearly every night. and nearly everything in the town was burnt up first and last except that old building,'" As might be expected, it took William some time to establish a practice. He bagan his work in the J. P. courts of Texarkana, and one of his first cases was a suit against one L. Samuel. a pawnbroker, for a wash-pot. The claim was that the pot was stolen from his client, but the defendant's expert (a hardware man) testified that "there were a great many black pots in the world of this size. and it was doubtful whether you could identify one from the other," On the basis of their testimony the case went against William and fifty years later he could still feel the sting: "The loss of the wash-pot case," he wrote, "hurt my conscience very much, and I thought that there was no justice in law ."10 William claimed that "he was naturally shrinking and timid" and therefore his "business was not very extensive for a long time," especially since he did not "cultivate acquaintances" or "mix July 1984/Arkansas Lawyer/l37
around with the business interest."" In time. however, he prospered, acquired a very large general practice, and argued several cases before the Supreme Court of the United States, He also was evidently able to overcome his purported shyness sufficiently to be elected four times city recorder of Texarkana (l885-88). mayor of Texarkana (1892-94), and president of the Texarkana School Board in which capacity he served ten years, In 1907 he was elected president of the Arkansas Bar Association, He also served as chairman of the Miller County Democratic Convention of 1917, In 1923 he attended the organizational meeting of the American Law Institute, In 1925 he was appointed special associate justice of the Supreme Court of Arkansas and in 1929 was elected special judge of the Eighth Circuit of Arkansas by the bar of that circuit to fill a vacancy. William Hendrick Arnold's eventual success in the law, the practice of which he vigorously pursued until his death in 1946, would make it possible for his children to enjoy educational ad vantages that he had been denied. His first child, Jodie Claypool Arnold, attended Randolph Macon Woman's College and the Drexel Institute; Lucy Arnold, his next child, received a B.A. from Randolph Macon in 1911; and Ruth Arnold, the third daughter, attended Vassar and the University of Chicago. The sons, all of whom were to become lawyers, were also outfitted with the finest possible educations. William H. Arnold, Jr., the eldest son, was born in 1893, was graduated from Phillips Exeter Academy in 1911. Harvard College in 1915, and Oxford University in 1918. He attended Oxford as a Rhodes Scholar and was a student at the Inner Temple in London. He was admitted to the Arkansas Bar in 1916. He served in the Army in France during World War I, and was also a member of the Texas and Louisiana bars. William, Jr. was chairman of the Miller County Democratic Central Committee and was engaged in the general practices of law in Texarkana until his death on November 6, 1977. David Christopher Arnold, William's second son, was born in 1896. He was graduated from Phil138/Arkansas Lawyer/luly 1984
lips Exeter Academy in 1913 and attended the University of the South. In 1918 he was admitted to the bar of Arkansas. In 1920, at the age of 24, he was elected to the Arkansas House of Representatives. In 1922 he was elected to the Arkansas Senate by a majority of two to one and served one fouryear term. He died in 1936 after being stricken while trying a case in Miller County. Richard Lewis Arnold, William's youngest son, was born in 1906. He was graduated from Phillips Exeter Academy in 1925, Yale College in 1929, and Harvard Law School in 1932. He was admitted to the Arkansas bar in 1931 and was for many years a member of the Board of Directors and General Counsel of Southwestern Electric Power Co. He twice served as special associate justice of the Supreme Court
of Arkansas. He is presently living in Texarkana.
William H. Arnold, Jr. had two sons, both of whom became lawyers. William Hendrick Arnold, III was born in 1923. He attended Rice University and received a B.A. from the University of
Texas in 1948. In 1950 he was graduated from the University of Texas Law School and the same year was admitted to the bar of Texas. In 1953 he was admitted to the bar of Arkansas and in 1966 was elected circuit judge of the Eighth Judicial District of Arkansas. He is presently engaged in the practice of law in Texarkana in the firm of Arnold and Arnold with his brother Thomas Saxon Arnold. Thomas was born in 1928 and was graduated from Rice University in 1949 and the University of Texas Law School in 1952. He was admitted to the bar of Texas in 1952, the bar of Arkansas in 1953, and the bar of Colorado in 1977. For many years he has had interests in various title companies in the southwestern United States. Richard Lewis Arnold's first son, Richard Sheppard Arnold, was born in 1936. He was graduated from Phillips Exeter Academy in 1953, Yale College in 1957, where he was first in his class, and Harvard Law School in 1960, where he was again first in his class and served as an editor of the Harvard Law Review. In 1960 he was admit-
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ted to the Arkansas bar after having made the highest score on the bar examination given in July of that year. In 1961 he was admitted to the har of the District of Columhia. After a year's clerkship with Mr. Justice Brennan of the Supreme Court of the United States, he practiced for a time with the Washington firm of Covington and Burling before returning to Texarkana to join the family firm in 1964. He was elected a delegate to the Arkansas Constitutional Convention of 1969-70 and for a number of years worked for Governor and later Senator Dale Bumpers. In 1978 he was appointed a United States district judge for the Eastern and Western Districts of Arkansas and in 1980 he was elevated to the United States Court of Appeals for the Eighth Circuit where he presently sits. Judge Arnold's wile, Kay Kelley Arnold, a graduate of the University of Arkansas and the UALR Law School. was admitted to the Arkansas bar in 1981. Morris Sheppard Arnold, his brother, was born in 1941. He was graduated from Phillips Exe-
ter Academy in 1959, attended Yale College, and was graduated from the University of Arkansas in 1965 and the University of Arkansas Law School in 1968 where he was Editor-in-Chief of the Arkansas Law Review and first in his graduating class. He was admitted to the Arkansas bar in 1968. In 1969 he received an LL.M. and in 1971 an S.J.D.. both from Harvard Law School where he was a Teaching Fellow in Law in 1969. He has taught law at a number of American universities and in 1978 was a member of the Law Faculty of Cambridge University. He is presently a professor of Law and History at the University of Pennsylvania where he served as vice president of the University from 1979 to 1981. In 1982 he was elected state chairman of the Arkansas Republican Party and the same year was appointed special chief justice of the Supreme Court of Arkansas. Though this list is long, it has not exhausted the list of Arkansas Arnold lawyers. John H. Arnold, William Hendrick Arnold's first
1$-d~:
cousin, was born in 1864, read law in the Prescott firm of Smoote & McRae, and was admitted to the bar of Arkansas in 1884. He later moved to Washington, Arkansas, where he became mayor and a member of the firm of Williams and Williams. He died in 1925. Finally, W.H. (Dub) Arnold prosecuting attorney in Arkadelphia, is a distant cousin. The Arnolds have been practicing law in southwest Arkansas for one hundred and two years. With eleven of them having been admitted to the Arkansas bar, the Arnolds have one of the longest and fullest family legal traditions in the state. 0 NOTES 1.
w.
2. 3. 4. 5. 6.
(1935). Id. at 171. Id. at IB4. Id. at 173. Id. at 173-74. Id. at ISS.
H. Arnold. The Arnold Family 22
7. Id.
B. 9. 10. 11.
Id. at IB6. Id. Id. at IBB. [d.
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The Arkansas Court of Appeals On November 7. 1978. the voters of the State of Arkansas approved Amendment 58 to the Arkansas Constitution. which provided for the creation of the Arkansas Court 01 Appeals.' The impetus lor the new court had come from members of the Arkansas Supreme Court and others in the legal profession who argued that the state's judicial' system. and specifically the Supreme Court. would suffer without it. Proponents argued that the new court would reduce the Supreme Court's workload. allow judges more time to consider cases
and write opinions. and make the appellate process quicker and more efficient. 3
Because the creation of the Court of Appeals brought about such a dramatic change in the Arkansas judicial structure. requiring the expenditure of a substantial portion 01 state funds.' the general public. as well as the members of the bar. have a right to know whether the change has been a beneficial one. This study was undertaken as an attempt to determine whether the projected benefits have accrued. and what effects. if any. the creaEditor's Note: James D. Gingerich is University Counsel and assistant professor of Political Science at the University of Central Arkansas. He is a 1980 graduate of the University of Arkansas School of Law in Fayetteville. He received his L.L.M. in 1982 from the University of Bristol. England.
This article is a condensed version of a paper which won top honors at the February meeting of the Adansas Political Science Association in Jonesboro.
140lArkansas LawyerlJuly 1984
WAS IT WORTH THE TROUBLE?l By James D. Gingerich
tion of the court has had on the Supreme Court. Several factors were chosen to measure changes
in the Supreme Court during the years immediately preceding and following the creation of the Court of Appeals. The results of those measurements
were
then
analyzed to determine the nature and extent of the effect. and whether
the
new
court
has
achieved those things which were expected of it. 1. The Creation 01 the Court 01 Appeals At one time. the workload of the Arkansas Supreme Court was very stable. In 1964. a total of 464 cases were disposed of by the court.' In 1970. that number had risen to 716' and by 1976. they totaled a staggering 1037 cases-an increase of 123"10 in only 12 years.' The earliest appeals for help came from within the membership of the Supreme Court. In his 1976 annual report to the Governor and General Assembly. then Chief Justice Carleton Harris wrote:
Justices of the Supreme Court wIote an average of over 73 opinions each in 1976 as compared with an average of 65 during 1975. substan tially above the national averages for states
without an intermediate appeallate court. Total workload of the Court increased by almost 30 per cent during 1976 as compared with 1975. Despite the heavy workload. the Court remains current. but it will be diflicult for the Court to keep pace with its skyrocketing workload in the years to come unless help in the form of an intermediate appellate court for Arkansas is forthcoming.(8J The same theme was echoed in civic meetings and legislative committee hearings in subsequent
months by other members of the Court. educators. and legal practitioners. These efforts realized success in March of 1977. when the Arkansas General Assembly approved Senate Resolution 5. 7 which allowed the proposal to be placed on the ballot in the 1978 general election. By more than a two-to-one margin.' the proposal was approved by voters as Amendment 58 to the Arkansas Constitution. The amendment itself was not very specific. It simply provided that the General Assembly was empowered to create a court of ap-
peals with such "jurisdiction as the Supreme Court shall by rule determine." All provisions concerning the number of judges. method of election. length of term. method 01 selecting the chief judge. and issues relating to salaries and staff support were left to the Legislature. This lack of specificity led to an intense debate. especially in legal circles. concerning the legislation to implement the amendment. In a vote in January of 1979. the House of Delegates of the Arkansas Bar
Association was closely divided over the bill which was then being debated before the General Assembly. The most controversial provisions concerned the sixperson composition of the court. which could lead to evenly split decisions. and the selection of the chief judge by the chief justice of the Supreme Court." The legislators. after lengthy discussions and several amendments. eventu-
ally enacted Act 208 of 1979. including both of those provisions. On July 7. 1979. Governor Bill Clinton appointed the court's first members l2 and its first opinions were
handed down one month later.
II. Measurements and Expectations When the creation of the Court of Appeals was being debated, proponents argued that the following benefits would result: (I) the workload of the Supreme Court would be decreased; (2) the Supreme Court would be able to hear only the more "serious'. cases, have
more time to decide them. and consequently, write "better" opinions; (3) the appellate process would become quicker and more efficient; and (4) duplications in the appellate process would be avoided. In order to measure
whether these benefits have accrued. nine criteria were selected as measurement tools. Supreme
Court decisions over a seven year
period. from 1976-1982, were studied." The criteria selected. and the reason for their selection. are as follows: Workload Two criteria were selected to measure changes in the workload of the Supreme Court. The first was the number of cases which were disposed of during each term. Included in the figures were all appeals. petitions, and motions (other than motions for an extension of time) considered by the court which were finally disposed of during the term. The second
criteria selected was the total
pected that the number of concur-
number of majority opinions writ-
ring and dissenting opinions
ten each year. denominated into a per-justice average. If the Court of Appeals has produced the desired result. the number of dispositions and majority opinions should decrease after the 1979 term. More Time to Consider Cases. Write "Better" Opinions The objective of allowing justices more time to consider and write opinions is that it will allow time for additional research, thought. drafting, and, in the end. produce a "better" opinion. The problem, of course, is in developing a set of criteria to measure the quality of an opinion which excludes. as much as possible, the introduction of large amounts of subjectivity. In an attempt to avoid this problem. a method similar to that used by Roger Groot in his study of the North Carolina courts路" was adopted. With Groot's method. there is no direct attempt to determine whether the quality of the opinion has improved. but simply to note those changes which would indicate that additional time has been put into the opinion writing task. Thus, four criteria were selected for measurement. The first two involve the average number of concurring and dissenting opinions written by each justice. In a system in which a justice is overworked and pressed for time. it is reasonable to assume that if he agreed with the result reached by the majority. he would join the opinion even though he disagreed with the reasoning used. Likewise, a justice who disagreed with the result of the majority would issue an opinion in only those cases in which he possessed very strong feelings. In both instances. with more time available to develop and formulate his own reasoning, a justice would be more likely to express it. Thus. it should be ex-
would increase after the creation of the Court of Appeals. A third criterion studied concerns the length of opinions. With more time available to do research and develop and expand lines of reasoning. the length of the justices' opinions should increase. Thus. if proponents were correct in their projections, one would expect the number of pages per opinion to increase after 1979. Finally, the number of per curium opinions was studied. If the appellate courts are properly structured so that the Supreme Court hears only the more important cases, the number of those cases disposed of with per curium opinions should decrease. In addition, with more time to consider
cases, those which would have previously resulted in a per curium order could be handled with a full opinion. Thus, if the Court of Appeals has had the desired effect, the number of per curium opinions should decrease after 1979. Make the Appellate Process Quicker and More Efficient The obvious method of determining whether the appellate process requires less time is to count the average number of days cases are before the court. The Arkansas Judicial Department has been tracking selected cases through the courts for several years, and their findings are used here for this purpose. The time measured begins on the day in which the record is filed with the Supreme Court and ends on the day when the decision is rendered. It should be expected that the amount of time will decrease following the creation of the Court of Appeals. As to the court's efficiency. this criterion is usually determined by measuring its currency. that is, the
number of cases which are disposed of within the term as compared to the number of cases which are filed. With a smaller July 1984/Arkansas Lawyer/141
workload. it should be expected that the disposition ratio of the court will increase after 1979. Avoid Duplication of Appeals The final benefit noted by the Court of Appeals' proponents was that the structure of the court would insure that duplication in the appellate process would be avoided. The only way a case once heard by the Court of Appeals may reach the Supreme Court is by a grant of certiorari. In order to assess the success of this structure. the number of petitions for review
granted by the Supreme Court were compared to the total number of cases disposed of by the Court of Appeals. If the proponents were correct. only a very small percentage of the cases disposed of should have been accepted for review by the Supreme Court.
the jurisdiction of the Supreme Court prior to the creation of the Court of Appeals is basically the same as that presently shared by the two courts,17 an indication of what the Supreme Court's workload would have been can be made by adding the workload of the two courts. The number of dispositions for the Court of Appeals is found in Table 2. In 1982 had these cases been added to the workload of the Supreme Court. they would have totaled 1754 cases. As compared to the actual workload of 1062 cases. this is a real decline of 1692 cases. or 61% (See Table 3). Thus. it can be seen that the creation of the Court of Appeals has had a significant effeet on the decline in the number of dispositions by the Supreme Court.
III. Findings and Analysis" I. Dispositions. At first glance. there seems to be a little change in the number of Supreme Court dispositions before and after the creation of the Court of Appeals (See Table I). In 1976. there were 1037 cases disposed of. rising to 1234 in 1979. By 1982. the number of dispositions had dropped to 1062." a decline of only 14% WORKLOAD AS MEASURED BY NUMBER OF DISPOSITIONS ARKANSAS SUPREME COURT. 1976-1982
Year
1976 1977 1978 1979 1980 1981 1982
Non-Time Appeals Petitions Motions Total
551 576 585 657 512 468 437
166 190 203 244 312 208 224
300
268 282 333 398 384 401
1037 1034 1070 1234 1222 1060 1062
Table I
The figures are more enlightening. however. when compared to the number of dispositions which would have resulted had the Court of Appeals not been created. Since 142/Arkansas Lawyerliuly 1984
WORKLOAD AS MEASURED BY NUMBER DISPOSITIONS ARKANSAS COURT OF APPEALS. 1979-1982
or
Non路Time Year
Total
Appeals Petitions Motions
1979 1980 1981 1982
226 905 886
1062
96
93
158 178 164
284 361 466
415 1347 1425 1692
Table 2
2. Number of Majority Opinions. A look at the average number of published opinions per justice provides further evidence of the Supreme Court's decreasing workload. From a high of 77 majority opinions per justice in 1978. the average had dropped 41% to 45 opinions in 1982 (See Table 4). This decline is even more dramatic when it is considered that the number of actual cases disposed of
NUMBER OF DISPOSITIONS IN SUPREME COURT AND COURT OF APPEALS. 1976-1982 The shaded area repre. -
sents tbe difference between the Supreme Court's
Supreme Court
- - . Court of Appeals
actual workload and the workload which would have resulted. had not the
- . - Total Both Courts 3000
2900 2800 2700 2600 2500 2400 2300 2200 2100 21XXJ 1900 1BOO 1700 1600 1500 1400 1300 1200 1100
-
Court of Appeals been created.
,... I -
I
I I
500
400
I
I
I
I
I
I
I
.
I
- --
_..... _..... I
l00J
I
I
I
.....
I
I
-
900 BOO 700 600
I
I
I
...............
.....
~
_....
I
I
I
I
I
I
I
I
1976
1977
1978
1979
1980
1981
1982
Table 3
in the Supreme Court alone had remained fairly constant. This can be explained by the fact that the percentage of cases disposed of with a written opinion has steadily declined (See Table 5). This decline is largely a result of the decreasing number of appeals taken to the Supreme Court. which are more likely to be disposed of with a written opinion than are petitions and motions (See Table I). The largest decline is from 1979 to 1980. a direct result of the effects of the Court of Appeals. Thus it appears that the creation of the court has produced the desired result of decreasing the workload of the Supreme Court.
number of all opmlOns declined during the period. The percentage of all opinions made up of concurring opinions increased from 4% in 1979 to 13"10 in 1982. Thus. the expected rise in concurring opinions after 1979 has. in fact. resulted. 4. Frequency of Dissenting Opinions. Similarly. the number of dissenting opinions has increased over the period (See Table 6). From 1976-1978 the Supreme Court wrote an average of 52.33 dissenting opinions per year, representing an
average of 8.66% of the total opinions handed down during the period. From 1980-1982 the number had increased to 70 dissenting
1976 1977 1978 1979 1980 1981 1982
# Maj. Oninions 509
Ave. Per
Justice
# Other Opinions
73 70 77 65 50 47 45
488 539 453 352 327 318
Ave. Per
72
Justice 10
54 95 91 141 112 100
8 14 13 20 16 14
All Opinions
Ave. Per
581 542 634 544 493 439 418
83 77 91 78 70 63 80
nated for publication." In 1979. this rule was changed to provide that "all signed opinions of the Supreme Court shall be designated for publication. Prior to 1979. therefore. many opinions which re501-
Justice
ved routine issues, and thus were
more likely to be shorter opinions. were not published; whereas. following 1979. all cases were included.
Table 4 NUMBER OF WffiTTEN OPINIONS AS PERCENTAGE OF TOTAL DISPOSITIONS ARKANSAS SUPREME COURT 1976路1982 Yea,
1976 1977 1978 1979 1980 1981 1982
Written Dispositions Opinions Percentage 1037 581 56%
1034 1070 1234 1222 1060 1062
542 634 544 493 439 418
52% 59% 44% 4oolo 41% 39%
Table 5
3. Frequency of Concurring Opinions. In the three years preceding the creation of the Court of Appeals. the Supreme Court wrote an average of 16.33 concurring opinions per year. In the years following the court's creation. that average increased to 39 o.pinions per year(See Table 6). This number increased even though the total
One possible explanation external to the Court of Appeals which may account for the decline is re10 ted to the publication of the court's opinions. It was at one time a policy of the Supreme Court to publish only certain types of opinions; those which involved routine issues or were not useful for reference purposes were not desig-
WORKLOAD AS MEASURED BY NUMBER OF WRITTEN OPINIONS ARKANSAS SUPREME COURT. 1976-1982 Year
per case has declined." In 1976. the court published 256 opinions with an average of 4.5 pages per case (See table 7). By 1982. the number of published opinions had increased to 382. but the average had declined to 3.4 pages per case. The average has declined each year since 1979.
NUMBER OF MAJORITY. DISSENTING. AND CONCURRING OPINIONS ARKANSAS SUPREME COURT. 1976路1982
Dissenting in Part and Year Majority Cp. Dissenting Op. Concurring Op. Concurring in Part Total # %# %# %# %# %
1976 1977 1978 1979 1980 1981 1982
509
488 539 453 352 327 318
55 37 65 83% 62 71% 95 74% 79 76% 36 88"10
90% 85%
go", 11 7% 14 lOOk 24 11% 23 19% 35 18"10 26 9% 56
2% 6 3 4% 6 4% 6
1%
3%
0%
7%
1% 1% 2% 2% 2%
11
6% 7 13% 8
581 542 634 544 493 439 418
Table 6
opinions per year, an average of 15.33% of the total opinions.
5. Number of Pages Per Opinion. If the Supreme Court had declining workloads and additional time to consider cases, it is reasonable to expect that the length of opinions issued by the court would increase. The evidence. however. indicates that the number of pages
6. Number of Per Curium Opinions. Other than to note that the number of per curium opinions rose dramatically in 1982, it is dilficult to draw any conclusions from the figures. The percentage of per curium opinions decreased in the years preceding the Court of Appeals. then began to rise slowly until 1982 (See Table 8). The July 1984/Arkansas Lawyer/143
expectation was that they would decrease after 1979. It may be that the increasing percentage of the Supreme Court's workload made up by petitions and motions, as opposed to appeals (See Table 1) has increased the use of per curiums. The number of appeals decreased 21% from 1976 to 1982, whereas the number of petitions and motions increased about 29"10 during the same period. Even if this could be shown, however, it would not account for the dramatic increase of per curiums in 1982. NUMBER OF PAGES PER CASE' ARKANSAS SUPREME COURT. 1976-1982 Year
1976 1977 1978 1979 1980 1981 1982
Cases Pages 256 1159 275 1102 333 1367 371 1626 367 1515 375 1300 382 1288 Table 7
PIC 4.5 4.0 4.1 4.4 4.1 3.5 3.4
• Includes 011 opinions written and published by the Supreme Court. including per curium opin· ions.
PER CURIUM OPINIONS ARKANSAS SUPREME COURT 1976-1982 Year
1976 1977 1978 1979 1980 1981 1982
Number Number Per Curiums Total Opinions % 43 624 7% 28 570 5% 16 2",(, 650 16 560 3% 22 515 4% 46 485 9% 106 524 20% Table 8
7. Number 01 Days in Appellate Court. The results of the survey concerning the average length of time a case is before the Supreme Court are somewhat mixed. The average time for all cases actually rose substantially from 1979 to 1980-lrom 173.5 days to 196.5 days (See Table 9). The average has steadily declined since reaching its lowest point during the seven years in 1982 with an average of 149.5 days. While the average time for all cases has increased, that increase 144/Arkansas Lawyer/July 1984
is solely attributable to the increased time to hear criminal cases. The average time for civil
cases has declined each year since 1979. This added time to hear criminal cases is no doubt a result of the change in the Supreme Court's criminal jurisdiction. While the court was hearing all criminal cases before the creation of the Court of Appeals, it now hears only the most serious criminal cases involving a sentence of death, life imprisonment. or at least 30 years imprisonment. The more substan-
tial issues, especially in capital cases, have increased the amount of time these cases are before the court. As a result, the Court of Appeals has not had the immediate result of decreasing the amount of time a case is before the Supreme Court. AVERAGE TIME CASE IS BEFORE APPELLATE COURT' ARKANSAS SUPREME COURT 1976-1982 Ave. Ave. Ave. Civil Criminal All Year Cases Cases Cases 1976 1977 1978 1979 1980 1981 1982
181 178 173 201 184 177 146
146 137
ISO 146
209 188 153
163.5 157.5 161.5 173.5 196.5 182.5 149.5
Table 9 • Figures are based upon a yearly survey of cases by the Judicial Deportment of Arkansas. AU cases in which there was a written majority opinion are included in the survey. Percuriums, cases transferred pursuant to Rule 29, cases dismissed without opinions, and exceptional cases which tend to skew the statistical objective of the survey were not included.
8. Currency. With the currency level of over 100"10 in the calendar year preceding the creation of the Court of Appeals, it is difficult to expect that level to be improved. In fact. the disposition ratio increased to 110.57"10 in 1979, dropped to 95.39"10 in 1980, and then returned to above the 100% level in 1981 and 1982 (See Table 10). Because the Supreme Court did such an admirable job of remaining current despite a pressing workload before its creation, it is difficult to
tell if the Court of Appeals has had any effect. DlSPOSlTION RATIO (CURRENCY) ARKANSAS SUPREME COURT 1977-1982' Number Year 1977 1978 1979 1980 1981 1982
Filings 1086 1012 1116 1281 1021 979
Number Disposition Dispositions Rale 1034 95.21 105.73 1070 1234 110.57 1222 95.39 103.81 1060 108.47 1062
Table 10 ~
figures for 1976 were not available.
9. Number of Petitions for Review Granted. The last general goal stated by the proponents of the Court of Appeals was to insure that the court did not slow down or complicate the appellate process by allowing a system of "dual" appeals. Dr. Robert Leflar, one of the leading ligures in the court's establishment. suggested that "3 or 4 percent is too large, of the cases decided by the intermediate court, [to] go on to the Supreme Court. "" The ligures indicate that the systern has easily met that goal. In the lirst six months of the Court of Appeals' existence, 8 cases, or ZOfc, of
the court's 415 total dispositions, were heard again in the Supreme Court (See Table 11). The percentage has decreased each year SO that by 1982, only .3% (5 of 1692) of the Court of Appeal cases were accepted for review. PETITIONS FOR REVIEW GRANTED ARKANSAS SUPREME COURT 1979-1982
Ye",
NumberPetitions Granted
Court of Appeals
%
1979 1980 1981 1982
8 15 9 5
415 1347 1425 1692
2",(,
Total
Dlllpositions in
1% .6%
.3%
Table 11
IV. Conclusion From this analysis, it can be
concluded that the insertion of the Court of Appeals into the Arkansas appellate structure has been largely successful. Most of the benefits which were projected by
the court's proponents have. in fact. resulted. The decrease in the workload of the Supreme Court. during a time in which the number of appeals from lower courts has increased dramatically. has relieved the court of a tremendous burden. The substantial decrease in the number of majority opinions written per justice and the increasing frequency of concurring and dissenting opinions suggest that justices now have more time available to consider cases. In addition. the court continues to be one of the most efficient in the United States. The success of the new system is due largely to the unique structure of the two courts. By providing each court with its own separate jurisdiction. the largest possible number of appeals can be processed and the problem of having "dual" appeals is avoided. One of the goals which has not been so successfully met involves the nature of the cases heard by the Supreme Court. While the rule providing for the division of the two appellate courts' jurisdiction was intended to allow the Supreme Court to hear only the more important cases and issues of some serious legal significance, recent additions to that jurisdiction have been made solely to effectuate a balance between the number of cases filed in the two courts. Thus in many instances. the cases heard by the Supreme Court are no more important than those heard by the Court of appeals-they are merely different. One might argue that what results is an appellate system having two supreme courts. However.
so long as the Supreme Court retains the right to review cases heard by the Court of Appeals. it remains the "supreme" court, and
any dilution of its jurisdiction is more than outweighed by the advantage of smaller workloads and the resulting quality and efficiency in the appellate process.
From a situation in which bulging dockets and increasing workloads were threatening the integrity of the Arkansas appellate system. the Arkansas Court of Appeals has emerged to save the day. A review of the evidence suggests that its creation has had a positive effect on the Supreme Court and accomplished those things which were expected of it. With the Supreme Court's ability to constantly monitor the workload between the two courts. to make necessary adjustments. and to exercise control
over those cases which are ac-
cepted for review from the Court of Appeals. the work product. efficiency. and effectiveness of the Supreme Court and the Arkansas judicial system should continue to improve in the years to come. 0 FOOTNOTES
I
2
This is a condensed version of a paper which was presented to the Arkansas Political Science Association in Jonesboro, Arkansas in February, 1984. Amendment 58 provides: The General Assembly is hereby em·
powered to create and establish a Court of Appeals and divisions thereof. The Court of Appeals shall have such appel~ late jurisdiction as' the Supreme Court shall by rule determine. and shall be subject to the general superintending control of the Supreme Court. Judges of the Court of Appeals shall have the same qualifications as justices of the Supreme Court and shall be selected in the man· ner provided by law. J
4
Arkansas Gazette. March 4, 1977. §B at 1. col. 7 and September 2. 1978. §A at 9. col. I. In 1982. a total of S1.018.514 was budgeted for the 1983-84 Fiscal Year for the salaries and operating expenses of the Arkansas Court of Appeals.
) First Annual Report of Judicial Department of Arkansas. [herein cited as Annual Report]. • 1979 Annual Report. 1976 Annual Report.
Letter from Carleton Hanis to David Pryor. contained in 1976 Annual Report. I Senate Joint Resolution 5. Acts of Arkan· sas 1977. p. 2431. I I The official vote totaled 291.941 for the amendment. 141.792 against the amendment. II Arkansas Gazette. January 21. §A at 9, col. 1. 12 The first members of the court included M. Steele Hays, David Newbern. Mrs. Marian Penix. George Howard. Jr .. Ernie Wright. and James Pilkinton. These members served until January 1. 1981. when the first elected members of the court assumed office. Arkansas Gazette. July 8. 1979. §A at I. col. 3. IJ One problem with the figures which must be noted is the fact that the personnel of the court changed during this period. Three of the justices who were on the court in 1976 remained in 1982. The extent to which this change in personnel affected the court is not considered in this study. It R. D. Groot. "The Effects of an Inter· mediate Appellate Court on the Supreme Court Work Product; The North Carolina Experience." 7 Wake Forest Law Review 548. 1971. U Unless otherwise noted. all figures were compiled from the Annual Reports of the Arkansas Judicial Department for years 1976-1982. II The 1982 Annual Report. p. 21. incorrectly calculates the total dispositions at 928. This appears to be due to an error in addi· tion for petitions and motions which is listed at 491. but actually totaled 625. 17 The only significant change in the juris· diction of the court concerned the addi· tion of appeals from the Employment Se· curity Division. Originally. these cases were appealed to the circuit court in the county where the appellant resided. In 1979. all such appeals were transferred to the Court of Appeals. Ark. Stat. Ann. §1107(dX7) (Rept. 1976). These cases can· stituted 154 dispositions in 1980. 360 in 1981. and 391 in 1982. II These figures were compiled from a review of all cases published by the Supreme Court for January 1. 1976-Decamber 31. 1982, contained in volumes 531-644 of the South Western Reporter. 2nd. Series. The figures used for each case include any page on which any parl of the case appeared. I' See. Smith. "The Selective Publication of Opinions: One Court's Experience:' 32 Ark. L. Rev. 26 (1978) and Newbern and Wilson. "Rule 21: Unprecedent and the Disappearing Court." 32 Ark. L. Rev. 37 (1978). 20 Arkonsas Supreme Court Rules. rule 21.1. 21 Arkansas Gazette. September 2. 1978 §A at 9. col. 1. I
July 1984/Arkansas Lawyer/l4S
BULLETIN ABA Model Rules on Professional Conduct: An Update By Herschel H. Friday On August 2, 1983, after more than six (6) years of study and hearings, the American Bar Association House of Delegates approved a new set of rules governing the professional conduct of lawyers. If history repeats itself, these rules will ultimately be adopted substantially intact in most of the states. Certain states have already taken action. State bars or bar associations in Pennsylvania, New Jersey and Michigan have recommendations
for the adoption of the Model Rules in their new format pending before their supreme courts. In Pennsylvania a court-ordered comment period was expired and the Model Rules themselves and the State Bar Association's recommendations have been referred to the Disciplinary Board for final comment. The State Bar of Maryland's Board of Governors is expected to approve a final version of its commit-
Moore, Jr. and Herschel H. Friday, chair. We are holding meetings and making presentations to various bar associations and interested groups and will present a program at the Annual Meeting of the Arkansas Bar Association in Hot Springs on Thursday, June 7, 1984. We have not seen fit to set a rigid timetable but will proceed as diligently as possible. The new rules contain a total of eight categories and 52 individual rules as follows: Number Category of Rules Client-Lawyer Relationship 16 Counselor 3 Advocate 9 Transactions with Persons Other than Clients .4 Law Firms and Associations 6 Public Service .4 Information About Legal Services 5 Maintaining the Integrity of the Profession 5
I think it is fair to say that most of the criticisms of earlier drafts have been answered. There remains in
the minds of some lawyers and laymen (as has always been the case) doubts about the rules that deal with certain historically controversial subjects (particularly confidentialy and other aspects of client-lawyer relationships, some subjects dealt with rules in the advocate category and the varying but deliberate use of both mandatory and permissive language). Nevertheless, most seem to agree that the rules represent a com-
prehensive and responsible effort to keep the governing standards for professional conduct of lawyers abreast of the times and most like the new restatement format. I urge each of you to take the time to read and study the proposed Model Rules and contact our Committee with any suggestions or comments which you may have. 0
tee's report in time to make a rec-
ommendation to its Court of Appeals in May. Arizona's
high
court
is
scheduled to receive a recommendation from their state bar shortly, and Montana and Kansas will report to their high courts in April and June, respectively. The state of Virginia had adopted a new Code of Professional responsibility in October, 1983, having used the Model Rules as a starting point and adopting certain substantive portions of the Rules, but adhering to the Model Code format. In most of the other states there are committees in existence charged with the responsibility of guiding the rules through the necessary educational and adoption processes.
The committee in Arkansas (created by the Arkansas Bar Association) consists of Philip Anderson, John F. Stroud, Jr.. H. William Allen, Howard W. Brill, Jack Deacon, John Fogleman, John GilL Jerry W. Cavaneau, Richard N. 146/Arkansas Lawyernu:ly 1984
g.
goldman & d1Hociate~J ...Ltd. CHEMICAL CONSULTANTS
• PRODUCT AND PROCESS LIABILITY CASES, • TOXIC SUBSTANCES (PESTICIDES, HAZARDOUS WASTE, AND TRANSPORTATION). • CONTRABAND DRUG ANALYSIS AND BLOOD ALCOHOL ANALYSIS. RANDOM AND ACCIDENT RELATED DRUG SCREENING • TOXICITY OF CHEMICALS AND WASTES (TOSCA, EPA, NIOSH-REG, OSHA) • MARINE AND OFFSHORE LITIGATIONS INVOLVING PETROLEUM, CHEMICALS, AND HAZARDOUS CONDITIONS -OFFSHORE PERSONAL INJURY, EXPLOSIONS-FIRES • SLIP AND FALL LITIGATIONS (COEFFICIENT OF FRICTION INSTRUMENTS) • PLASTICS AND NON-METALLIC FAILURES • LABORATORY ANALYSIS FACILITIES (CHEMICAL, BIOCHEMICAL, DRUGS AND METALLURGICAL) • CONSULTANTS TO INDUSTRY, INSURANCE CO'S, AND LEGAL PROFESSION • EXPERT WITNESS APPEARANCES (504) 831-7695 P.O. Box 8777 Metairie, LA 70001 468-5518 454·0774 (24 hours) 392-7961 PLEASE WRITE FOR OUR BROCHURE
ARKANSAS BAR ASSOCIATION 86TH Annual Meeting
APPELLATE hDVOChCY" . /I.
r-::.J
John Stroud has planned an outstanding program for the annual meeting. I am grateful for his time and effort devoted to making these arrangements. A program that includes judges of the hig hest courts in which Arkansas lawyers usually practice merits your attention. You should seize upon this opportunity to hear the Honorable Myron H. Bright. a distinguished judge. on how to prepare and make an effective oral argument on appeal.
/\ L
~
lIIo...
Rose George Smith. Darrell D. Hickman anc,i Mel路 vin Mayfield will featured be speakers. Available for distribution at the annual meeting will be an update of the "Appellate Advocacy Handbook. " Jackie Wright will present an over路 view of her work in bringing current this handbook which she authored in 1980. You are aware this is the year of the Gridiron. Through the excellence of Griffin Smith this production is always the added attraction to an annual meet路 ing. Jane and I invite you to join us at the 86th annual meeting.
JUNE 6-9, 1984 ARLINGTON HOTEL HOT SPRINGS, ARK,
Our moderator will be Dr. Robert A. LeHar. He has done more than any individual in this century to mold judicial attitudes through his teaching
as director of Appellate Judges Seminars. New York University. It will be a worthwhile ven路 ture to hear presentations on brief writing. internal operations, and discussions of recent decisions. A panel composed of Federal Appellate Judges Richard S. Arnold and J. Smith Henley, and State Appellate Judges Richard B. Adkisson,
Dennis L. Shackleford July 1984/Arkansas Lawyer/l47
SOCIAL EVENTS A MINGLING OF BLUES AND FOLK MUSIC
"': ~" ,\\\\/f\ ...... ~ ...
.
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'. ." ....
-. ". "" V''''.'--路 ....'1
Arkansas blues and folk music will mingle when Jean Simmons, a well-known and popular Arkansas Ozark musician. and Trenton Cooper. a southwest Arkansas bluesman, perform during a spouses' program-A Sampling of Brunch in the Arlington Tradition-on Friday. June 8. at 10:00 a.m .. in the Card Room, Arlington Hotel. Louis Guida. an ethnographer and communications consultant. will moderate the program. He will present a videotape-"Arkansas Voices"-on Delta and Hill Country music. featuring special appearances by musicians including CeDell Davis. a bluesman, Simmons plays various instruments. including the guitar, bass. auto-harp, dulcimer, spoons and dancing dolls. She has played for years as a member of the Simmons Family Group. Their music spans a large segment of moods and sounds from Old English Ballads. Mountain Hoe-Downs. Carter family and Gospel to contemporary Country. During the summer. this group is on stage three nights a week at the Ozark Folk Center in Mountain View. Arkansas. They have appeared at festivals from the National Folk-Life Festival at 148/Arkansas LawyerlJuly 1984
Washington. D.C., to the National Flat Picking Festival at Winfield, Kansas. They are featured on the National Geographic Music of the Ozarks album and have produced five albums themselves. Trenton Cooper. a Hope native. began playing piano at the age of 12. His mother also played piano and Cooper recalls that she was fond of the elaborate ragtime style that he himself is now a master of. By the time he attended college at Arkansas AM&N College at Pine Bluff. he was playing jazz and rhythm-and-blues with fellow students. lirst with the Czars of Rhythm and later with a 19-piece orchestra called the Collegians. After graduation he spent the early 1950's touring with bands such as Jimmy Liggins' Drops of Joy and Jay Franks' band. These jazz and rhythm-and-blues groups shared billings with artists such as Muddy Waters. Sonny Boy Williamson and Aaron "T-Bone" Walker. Cooper is director of Secondary Education at the University of Arkansas at Pine Bluff. He is featured on "Keep It To Yourself: Arkansas Blues. Solo Performances" (Chicago: Rooster Blues Records. 1983), an anthology of field recordings produced by
"". ~.~.~:? \>:::' .... ,--)-'j
Guida. 'V Guida has conducted nationally-recognized work relating to Arkansas' blues music traditions. In 1976. he founded and directed the UAPB Blues Project. the state's first effort to document its blues traditions. He has also directed several ground-breaking field research projects relating to Italian-Americans in the Arkansas Delta. He has extensive experience and credits in visual media. His still photographs on Arkansas blues have appeared in Blues Music in Arkansas (Philadelphia: Portfolio Associates. Inc" 1982). which he co-authored. Living Blues and have been exhibited at the Arkansas Arts Center and the Mid-America Museum in Hot Springs. A graduate of the University of Pennsylvania. Guida has written for Sebastropol (Ca.) Times and the Pine Bluff Commercial. His articles
have appeared in San Francisco Magazine. American Preserva-
tion. Living Blues and Center for Southern Folklore Magazine. He is co-author of Hogs in the Bottom: Family Folklore in Arkansas (Little Rock: August House. 1982) and cofounder of Co-Media. Inc.
PRESIDENT-ELECT'S RECEPTION A reception in honor of William R. Wilson, Jr., will open festivities on Friday evening, June 8, from 5:00 p.m. to curtain time for GRIDIRON '84. It will be held in the lobby and mezzanine of the Arlington Hotel and promises to be the start of a delightful evening.
Wilson, a Little Rock attorney, is an alumnus of Vanderbilt School of Law, and has been in private practice in Little Rock since 1969. He served as deputy prosecuting attorney in Texarkana from 1965-66. He then served three and one-half years in the Navy. He was inducted
in March into the American College of Trial Lawyers. The president-elect will assume the presidency following the House of Delegates meeting on Saturday, June 9. AIl registrants are invited to attend and enjoy the refreshments.
I
GRIDIRON '84-- HAMELOT" The Pulaski County Bar Association's Gridiron '84 show will be staged on Friday, June 8, in the Crystal Ballroom, Arlington Hotel. at 7:00 p.m. Dubbed "Hamelot," this year's production takes into account the degree to which the jurisdiction of federal courts has expanded into the boundaries of state activity. The question is "Should Arkansas be governed directly by a receiver appointed by the Court of Appeals for the Eighth Circuit?".
Come and enjoy the increasing OUf lives will be governed from St. Louis or Little Rock, Your attention will be directed toward medical malpractice-<lepicted through a television commercial for a law firm. suspense over whether
"Gridiron," of necessity, is beamed toward the legal profession. Director: Margaret Carner. as-
sistant professor of Theatre Arts at the University of Arkansas at Little Rock. Stage Manager: Joe Carner,
director of UALR's Multi-Media Services. Musical Director: Lori Loree, director of all musicals at Murray's Dinner Theatre, Little Rock, and various productions with the Arkansas Arts Center, Opera Theatre, UALR Theatre and Community Theatre of Little Rock. Choreographer: Sally Riggs, owner of Studio One, North Little Rock. Griffin Smith, Sr., and Bill Blair, Little Rock attorneys, are co-chairs of the Association's Gridiron committee.
Arkansasfest to Offer Country Cooking and Bluegrass Music An evening of hearty conviviality, country cooking, Bluegrass music and fun for all will be offered during an "Arkansasfest" on Friday, June 8, at 8:30 p.m., with music provided by Sugarhill. a group with a repertoire which includes Folk, Country, Bluegrass and Gospel music. Members of the group are Judge David Newbern, of Fayetteville, on banjo, mandolin and guitar, Dr. Ed Ryland, of Arkadelphia, on guitar, Charles Sandage of Beebe, on guitar, mandolin and pick and bow, David Treadway of Little Rock, on banjo, fiddle, mandolin,
guitar and dobro, and Aubrey Richardson, of Mountain View, on banjo and bass fiddle. Selected melodies in a four-part harmony will accompany a meal of fried chicken, catfish and hush puppies, ham sliced on the line, baked beans, corn-on-thecob, potato salad, Southern style green beans, fresh sliced tomatoes, sliced melon, peach and cherry cobbler and mixed salads. Much of Sugarhill's music is original. The group's main composers are Sandage, Ryland and Newbern. A portion of their presen-
tation will be old-time music, originating from the British Isles. The group, which has been playing together about ten years, has recorded one album, "Rareback, " produced in 1980 at Snug Harbor Dinner Theater in Greers Ferry by the Buckhart Recording Co. lt has performed at the Festival of Two Rivers in Arkadelphia, the Ozark Folk Center in Mountain View, the Mountain View Folk Festival and for the Bar Association, Arkansas Justice Foundation and many other organizations throughout the state. 0
July 1984/Arkansas Lawyer/149
EXEClITIVE DIRECTOR'S REPORT Good News: Dues Will Not Rise Next Year By Wm. A. Martin As I write this column in midApril-some six to eight weeks before you will read it-I am completing six months with the Arkansas Bar Association. When I review this first half year, I'm glad I am here, The work is quite interesting and my involvement with the lawyers of Arkansas has been very rewarding. I am continually impressed with the enormous amount of volunteer effort that is given to make our Bar Association
go. I am delighted with the staff at the Association headquarters. I don't think you would find another group of employees anywhere who are more dedicated to keeping the Association successful and providing maximum service to its members. They enjoy knowing and working with lawyers.
From a personal standpoint, I am back home in Arkansas, renewing lots of old friendships and making new ones. The change and getting acquainted is harder on my family. The move from Randolph Air Force Base, San Antonio, Texas, last October was our fourth move in just over six yearssomething that is very difficult lor teenagers.
DUES WON'T RISE NEXT YEAR Good news on the state of your Association is: Dues are not going up next year. Our last increase
was in 1979 and the one before that was in 1974. The American Bar Association tries to work on a three year cycle with the first year producing a surplus which is invested, the second year scheduled to be at the break even point and the American Bar drawing from the surplus and the interest it earned during the third year of a cycle. Our Association gets about 60 per cent of its revenue from dues and
ISO/Arkansas Lawyer/July 1984
Center records-advertising in the Arkansas Lawyer and other small income sources, It looks like we will about break even this year. The day will come when we will have to ask for a dues increase, but that time can be delayed if we can increase membership enough to benefit from spreading our costs
respondence the Post Office seemed to be ignoring the difference between "primary" in its regulations and "exclusive" in the IRS Code, Also, in revoking the Oklahoma Bar Association's permit the Post OUice objected to much of Oklahoma's educational efforts being focused inward instead of toward the general public-a stance not justified by anything in published postal regulations. Neil Deininger and Tom Overbey of Overbey, Peace, McClain and Yancey put together an outstanding appeal for the Association and
over more members.
now we are waiting to see what
supplements that source 01 lunds with money from fees for programs, sale of systems, and interest
from
money
we
have
invested-until it is time to pay for such things as printing new systems and computerizing our Bar
In mid-April we had almost exactly 3,000 members and will get several more after the April 30th admission ceremony for new at~ torneys. StilL there are too many lawyers in Arkansas who are not
members. I would like to ask each member to look at our new directory and see w he in your community is not included. Give them a personal invitation to join the Arkansas Bar Association.
NON-PROFIT PERMIT CHALLENGED Any organization has problems and threats. One that has us most concerned right now is the Post Office's challenge to our non-profit bulk mail permit. Postal regulations limit such permits to nonprofit organizations whose primary purpose is religious, educationaL scientific, philanthropic, agriculturaL labor, veterans or fraternal. If our primary purpose is not educationaL I don't know what it is. It appears the Post Office may be challenging all associations with an Internal Revenue Code Section 501 (c) (6) status as professional organizations. If we had qualified with IRS under Section 50I(c)(3) as exclusively educationaL we would be in better shape with the Post Office. In early cor-
happens. If we lose, our postal costs will shoot up from about $9,000 to $15,000 per year.
LAWYER REFERRAL SERVICE ADVERTISEMENT OMITTED BY SW BELL Another problem is Southwestern Bell. Our Lawyer Referral Service advertisement was left out of the Yellow Pages of the Little Rock phone book. That omission means people looking for a lawyer in the Yellow Pages are not going to discover the existance of the Lawyer Referral Service at 375-4605, The phone
company
was
aware
enough of their obligation to put the ad in that they have billed us for it and called complaining about our "delinquent bill" even after one ollicial had acknowledged we did not have to pay. The contract the phone company writes for Yellow Pages advertising absolves it of all liability for omissions-something it seems to me should be void as against public policy for a utility with a monopoly. Numerous letters to local phone officials have gone unanswered and I have just sent a letter to the president of Southwestern Bell Corporation pointing out shortcomings of his company. We hope all this avoids other omissions of our ads.
o
YOUNG LAWYERS' UPDATE Annual Meeting to Feature Election of Officers By Carl A. Crow, Jr., Chair Election of Officers at Annual Meeting The annual meeting of the Young Lawyers' Section will be held Thursday afternoon, June 7, 1984, in conjunction with the annual meeting of the Arkansas Bar Association at Hot Springs. The chair-elect is elected by a majority of those present and voting at the Section's annual meeting. Nomination may be made only by petition, and to be eligible for nomination, a Section member must have served as chair of a Sec-
tion committee or on the Section's Executive Council. No nominee is
eligible for election unless he or she is present at the Section's annual meeting.
The chair-elect for 1984-85 will be nominated from the Southern Bar District. comprising the counties of Ashley, Bradley, Calhoun, Chicot, Clark, Cleveland, Columbia, Dallas, Desha, Drew, Hempstead,_ Howard, Jefferson, Lafayette, Lincoln, Little River, Miller, Montgomery, Nevada, Ouachita, Pike, Polk, Sevier and Union. The
secretary-treasurer
is
elected by a majority of those present and voting at the annual meeting of the Section. The Executive Council is composed of the officers of the Section and the last retired chair of the Section and two additional members from each bar district. elected at the annual meeting. The terms of the elected members are staggered, so that one member from each bar district will be elected at each annual meeting. The Executive Council members whose terms expire in June 1984 are: Philip Raley, Southern District: Kaye S. Oberlag, Central District: Morse U. Gist, Jr., Northwest District and Jesse E. (Rusty) Porter, Jr., Northeast District. Chair-Elect Attends Bar Leadership Inslilute Current YLS Chair-Elect Martha
Miller of Little Rock, who will assume office as YLS chair at the annual meeting, recently attended the American Bar Association Young Lawyers' Division ChairElect Bar Leadership Institute at Lake Buena Vista, Florida. This annual meeting provides an op-
portunity for incoming Chairpersons of ABA/YLD affiliates to meet and exchange views with each other and with ABA/YLD representatives. The YLS' annual participotion in this seminar helps to assure that we have the benefit of other
Law Week 1984 The YLS, in cooperation with the Association's Public Information Committee, prepared and distributed to local bar associations a Law Week Planning Guide, including suggested programs and materials for use in planning and presenting programs during Law
Week 1984, Tom Ray of Little Rock, chair of YLS committee, presided at a Law Week Seminar on March 17, 1984, at the Bar Center, which was attended by a number of local bar
har association experiences in planning our own programs.
representatives.
Hot Springs Trial Practice Seminar The Third Annual YLS Trial Practice Seminar at Hot Springs was held March 23 and 24, 1984. Approximately 50 lawyers attended this excellent program. Rod Loomer of Springfield, Missouri. spoke on "Approaching the Small Personal Injury Case," and presented useful suggestions for effectively preparing such cases. Tom Strong, also of Springfield, Missouri. spoke on "Use of Demonstrative Evidence to Prove Liability," and presented an excellent program on the impact of demonstrative evidence at trial. The "Young Lawyers Purse" race at Oaklawn Park was run in conjunction with the seminar on Saturday, March 24. YLS representatives presented a silver cup to the owner, trainer and jockey of Fast Henry, the winning horse. The YLS program committee was chaired by Morse U. Gist, Jr., of Hot Springs and co-chaired by James M. Simpson, Jr., of Little Rock. The seminar was jointly sponsored by AICLE. Admissions Ceremony The YLS sponsored its semiannual Admissions Ceremony for new bar admittees on April 30, 1984, following swearing-in ceremonies in the old Supreme Court Chamber of the State Capitol Building. Robert D. Ridgeway, Jr., of Hot Springs chairs this committee, which is co-chaired by Sammye Taylor of Little Rock.
tal in securing a Governor's Proc-
In addition, Ray was instrumenlamation designating the week of April 29, 1984, through May 5, 1984, as Law Week in the State of Arkansas and Tuesday, May I, 1984, as Law Day U.S.A.. in commemoration of the 27th annual nationwide observance of Law Day. The Arkansas Bar Foundation earlier approved a grant of $2,700.00 to the YLS for these activities. Without this fundamental assistance, the project could not have been completed. Projects Update The Legal Records Keeper Committee, chaired by Mike Crawford of Hot Springs, has prepared an application to the ABA/YLD for project funding. The Ad-Hoc Committee on Jury Instructions, chaired by James E. Crouch of Springdale, is moving forward with plans to establish a statewide center for the exchange of jury instructions for use in civil cases not presen tl y covered by AMI. Volunteers are needed to participate in Arkansas Volunteer Lawyers for the Elderly (AVLE). In joining AVLE, a lawyer agrees to accept a maximum of three (3) pro bono cases per year. Richard L. Ramsay of Pine Bluff is chairman of the AVLE Board of Directors. To join AVLE, please contact P.O. Box 2038, Little Rock. Arkansas 72203. D July 1984/Arkansas Lawyer/lSl
ARKANSAS BAR FOUNDATION "EXECUTIVE OFFICE SUITES"
By Cyril Hollingsworth, President The 1983-84 Arkansas Bar Foundation year has been a time of transition. The Foundation is operating under revised By-Laws. The Trust Committee and the Board of Directors of the Foundation are working together to strengthen the Foundation and its
1686-1836
$2.500.00
MARKHAM AND MAIN
-A grant to the Committee working on Law Week to help promote the observance of Law Week throughout Arkansas $2,775.00
programs.
The purpose and meaning of the Foundation perhaps is best seen on a year-to-year basis in the grants it makes. The Trust Committee of the Foundation determines what grants shall be made. The Trust Committee considered numerous applications and made the following awards for the 1983-84 year.
-Arkansas Bar Foundation Research Fellowships consisting of a grant to a professor at the Fayetteville and Little Rock law schools of $3,600.00 each to enable summer study and research $7.200.00
-Distribution of a book entitled "Equal Justice Under Law: The Supreme Court In American Life" to public school libraries throughout Arkansas .$5.000.00
-The printing or reprinting of pamphlets: "Handbook for Arkansas Personal Representa-
tives;" "Your Rights;" "Real Estate;" "Arkansas Supreme Court Rules on Advertising;" and, "Guidelines for Lawyer's Trust Accounts" $2.131.00
-A contribution to enable the publication and distribution of a book by Professor Morris S. Arnold entitled "Unequal Laws Unto A Savage Race," a legal history of Arkansas during 152/Arkansas Lawyer/July 1984
CONTINENTAL BUILDING
-The establishment of two student scholarships each at the Fayetteville and Little Rock law schools. at $1.250.00 per scholarship. with the objective of retaining outstanding students to attend Arkansas law
schools
$5.000.00
LITTLE ROCK. ARKANSAS
We have 40 newly remodeled executive offices with; Secretary/Receptionist, Personal Answering Service. Photo-Copying, Conference Rooms, In-Building Parking. Janitorial Service, Utilities Paid, Etc.-At Rents from $140 to $300 per month. Additionally, we have larger office space available at about hall the rate of comparable space in some of the new buildings. CALL: 375-1439 or 372-1526 and we will mail you a brochure.
-A grant to be used to update the "Arkansas Appellate Advocacy Handbook" $2.000.00 -A grant to the Special Committee studying the ABA Model Rules of Professional Conduct. to assist them in dis-
,.----------,
seminating information to Ar-
kansas lawyers
$1.500.00
The Foundation is proud of its role in establishing the Arkansas Bar Center. a facility which serves the lawyers of Arkansas in many ways. The Center provides a home away from home for Arkansas lawyers outside the Little Rock area, and serves as a place where receptions and other activities pertaining to the legal profession can be held. A Joint House Committee of the Foundation and the Arkansas Bar Association helps to oversee the operation of the Bar Center and its use.
The Foundation presents a real opportunity on a continuing basis for Arkansas lawyers to make a significant impact on their profession and the administration of justice. I appreciate the opportunity and honor which I have had in serving as president this year. 0
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IN-HOUSE NEWS Law Schools, AICLE and Executive Council
UNIVERSITY OF
ARKANSAS SCHOOL OF LAW AT FAYETTEVILLE By J. W. Looney Gerry Spence Speaks The Student Trial Lawyers Association sponsored an appearance of trial attorney Gerry Spence in February. Spence spoke to an audience of over 250 students. faculty and lawyers at the Continuing Education Center on trial tactics and his experiences in the now famous Silkwood case. Judge Judith Rogers Addresses Chancery Judge Judith Rogers was the featured speaker during law week activities. Her presentation. "Women in the Judiciary." was sponsored by the Women's Law Student Association. Eighth Circuit Court Of Appeals Hears Argument at Law School In March, a panel from the Eighth Circuit Court of Appeals heard oral arguments at the law school. Judges Richard Arnold. J. Smith Henley, and Theodore McMillian heard arguments in three separate cases.
Editor-in-Chief of Law Review Selected Thomas Mars was elected editor-in-chief of the Arkansas Law Review for 1984-85. Tom will clerk during the summer
months
for
Wright. Lindsey & Jennings of LillIe Rock and for Gibson. Dunn & Crutcher of Los Angeles. He was recently designated as the 1984 recipient of a Presidential Scholarship in recognition of his academic achievements. Client-Counseling Teams Place First
in Regional Competition The UA Client Counseling team of Micki Harrington of Hendersonville, N.C .. and Lew Steenken, of Huntsville. placed first in the regional competition in Topeka, Kansas, and will represent the region in the national competition. Faculty Activities • Bob Laurence's article, "Thurgood Marshall's Indian Law Opinions, " was
published in Howard Law Journal. Professor Laurence
also has an article in the Arkansas Law Review entitled. "A Very Short Article on the Precedential Value of the Opinions from an Equally Divided Court." • Chauncey Brummer's article. "Occupational Disease
Litigation Under the Federal Employer's Liability Act." was published in The Forum. • Rodney Smolla & Linda Malone's article, "The Future of Defamation in Illinois after Colson v. Steig and Chapski v. Copley Press, lnc." was published in the DePaul Law Review. • Rodney Smolla's article," Let the Author Beware: The Rejuvenation of the America Law of LibeL" was published in the Pennsylvania Law Review.
• Jake Looney's article, "The Future of Government Regulation of Agriculture: Finance and Credit," was published in Northern IDinois Law Review.
... Don Pedersen's article, "The Migrant and Seasonal Agricultural Worker Protection Act: A Preliminary Analysis." was published in the Arkansas Law Review. . . Lonnie Beard's article (with Palli Holfmann), "Compensating Family Members: A Survey of Major Tax Planning Problems and Opportunities on the Family Farm," also appears in the Arkansas Law Re-
view.
• Howard Brill's article. "The Election of Remedies in Arkan50S," is in the Arkansas Law Review.
• Charles Carnes has been appointed as a regular contributor to the Journal of Agricultural Taxation and Law with responsibilities in
the area of agricultural labor. • Linda Malone's thesis has been accepted at Illinois for completion of the LL.M. degree requirements. Her book review of The Biller Years: Arabs Under Israeli Occupation in 1982 appears in the Middle East Journal, Robert A. Leflar, distinguished professor of law, participated recently in a three-day seminar at St, Paul. Minn .. for 12 new judges of the newly-created Minnesota intermediate Court of Appeals. In conducting the Seminar, Leflar was joined by three other judges from California, Missouri and Tennessee who have served with him on the faculty of the annual Appellate Judges Seminars in New York. Topics discussed in the short Minnesota seminar included nature and function of the appellate judicial process, preparation of judicial opinions. administraIuly 1984/Arkansas Lowyer/153
tion of appellate courts, and developmen ts in modern law in various areas.
UNIVERSITY
initial forum was con-
their superior academic
ducted on March 28 and included a panel discussion on the topic, "The Media Vs. the Justice System-Freedom of Speech in the Court-
achievement and to Jeannette Robertson, Jerry Malone and Austin Porter for their contributions to legal scholarship. In addition, Margaret McCord and Alice Lightle each received cash awards for having
room." The panel con-
OF
ARKANSAS AT LmLE
ROCK SCHOOL OF LAW---
By John M. Sheffey UCLA Dean Delivers Altheimer Lecture Susan Westerberg Prager, dean of the School of Law at the University of California, Los Angeles, delivered the tenth Ben J. Altheimer Lecture at the Law School on February 24. The title of Dean Prager's address was, "The Revolution in Marital Property Law: Increasing Emphasis on Marriage as a Partnership." An expanded version of her lecture will be published soon in the UALR Law Journal. Law School Co-Sponsors New Program Series
sisted of Phillip Carroll, a prominent Little Rock attorney, Judge Annabelle Clinton of the Sixth Judicial Circuit and Mike Masterson of the Arkansas Democrat.
Law School Alumni To Hold Annual Meeting The annual meeting of the UALR Law School Association will be held at noon, Friday, June 8, 1984 in the Wine and Cheese Room of the Arlington Hotel in Hot Springs. This will be during the annual meeting of the Arkansas Bar. The Association is com-
posed of graduates, former students, faculty and friends of the UALR School of Law and its predecessors, the Arkansas Law School and the Little Rock Divsion of the University of Arkansas, Fayetteville School of Law. The meeting will present an opportunity
to have lunch with old friends and classmates as well as to learn about recent developments at
the law school.
The UALR School of Law is a co-sponsor of a new
program
series
along with the National Conference of Christians and Jews, Arkansas Justice Foundation,
Pulaski County Bar Association, and the UALR College of Liberal Arts, with partial funding provided by the Arkansas Endowment for the Humanities. The program series, entitled "Search For Equity, consists of a number of
early morning forums on
current legal issues. The 154/Arkansas LawyerlIuly 1984
Annual Student Awards The Law School's annual awards banquet was held on March 3I at the Pleasant Valley Country Club. Selected students were honored
at the banquet for outstanding academic achievement and ser-
vice to the Law Journal and to the Law School. Although space does not permit recitation of all those honored, awards were made to Neal W. Jansonius, Rufus Wolff and Nancy Wilbanks for
been victorious in this
year's advanced appellate advocacy competition. George Nelson, the editor-in-chief. received the John H. Brunson Award for outstanding service to the UALR Law Journal. Joel Taylor, a May graduate, was voted by his fellow students as most likely to succeed in the practice of law and received the Bogle-Sharp Award. Several awards were also given to friends of the law school. The Alumni
Association
gave its distinguished
tinuing Legal Education. Professor Murphey's topic was ''The Contract and the United Nations Convention on
Contracts for the International Sale of Goods (The 1980 Vienna Treaty)." Professor Glenn E. Pasvogel has given several recent presenta-
tions. On March 30, he spoke to the DebtorCreditor Bar of Central Arkansas
on
recent
developments in debtor-creditor law. On April 19, he addressed the Arkansas Judicial Council at Fairfield Bay on the subject of recent cases of judicial interest. On May 3, at a meeting of the state prosecutors of Arkansas, he delivered a talk on character evidence. Professor Susan W. Wright's article, "Dam-
service award to Dr.
ages or Compensation
James H. Fribourgh, the retiring Provost and Vice Chancellor of UALR, in recognition of his many years of loyal service to both the university and the law school. The Student Bar Association presented an Appreciation Award to Ruth Lindsey, the former librarian at the Arkansas Supreme Court. who has unselfishly given of her
for Unconstitutional Land Use Regulations, will appear in Vol. 37 of the Arkansas Law Review. Professor Wright has been invited to participate in the Institute for Law Professors sponsored by the Law and
time and experience at
the school's law library. The Student Bar Association also gave its Distinguished Service Award to Carolyn Long ofKARK-TV. The awards
Economics Center of
Emory University. The institute will be held in Hanover, New Hampshire, from July 1-20, 1984. Professor Fred W. Peel will teach a course on consolidated income tax returns to personnel in
the national office of the Internal Revenue Ser-
presentations were pre-
vice
ceded by an address by Judge Judith Rogers of the Sixth Judicial District Chancery Court. Faculty News Professor Arthur G. Murphey, Jr., spoke at a
D.C. The program is sponsored by the New York University Law School and will be attended by attorneys in the Chief Counsel's office of the IRS, the tax division of the United States Department of Justice and the IRS's rul-
program on
interna-
tional sale of goods sponsored by the Arkansas Institute for Con-
in
Washington.
ing sections.
The Law School's library was well represented at the meeting of the Southwestern Association of Law Libraries in Austin. Texas. on March 29-31. Librarians Ruth Brunson, Jada Aitchison and Linda Cross were all in attendance, Professor Robert R, Wright chaired the American Bar Association-American Associa-
tion of Law Schools joint re-inspection of Baylor University School of Law in March, Dean Lawrence H. Averill. Jr., has agreed
cial advisor to the United States Justice Department on bankruptcy legislation. Also on the panel were Bankruptcy Judges Charles W. Baker and Robert F. Fussell. U.S. Bankruptcy Judge-designate James Mixon. Peggy Carroll. Bankruptcy Court clerk. A. L. Tenney. Chapter Xlll trustee for Wage Earner Plans and James Hollis. U.S. bankruptcy trustee. They discussed Bankruptcy Court. its procedures and pitfalls. new rules of bankruptcy procedure and the adminis-
to write a second edition
tration of wage earner
of his book, The Uniform Probate Code in a Nutshell.
plans and Chapter VII and XI bankruptcies. Professor Newbern discussed Federal Civil Procedure-Removal and Remand in the next session and the final
A.I.e.L.E. NEWS By Claibourne W. Patty, Jr. Federal Civil Practice Seminar
The 3rd Federal Civil Practice Seminar. cosponsored with the Arkansas Federal Practice Committees of the Eastern and Western Districts of Arkansas. was held March 16 at tbe Excelsior Hotel. Little Rock. Tbe program. cochaired by Chief Judge H. Franklin Waters, Judge William R. Overton. Professor Ellen B. Brantley and Professor David Newbern, focused on several areas of Federal Trial and Appellate Practice. The first portion was a panel chaired by Mary Daives Scott, of Little Rock, on bankruptcy matters affecting federal practice. The keynote presentation was by John Harrison, spe-
morning session was on
Effective Appellate Practice by Donald P. Lay. chief judge. and Richard S. Arnold. judge, U.S. Court of Appeals for the Eighth Circuit. The highlight was a panel of all federal judges in attendance. New ApproachHalf Day Seminars An Introduction to an International Sale of Goods was held March 3. 1984. at the University Conference Center. State House Plaza. Little Rock. Its purpose was to acquaint lawyers on the procedures and problems involved in exporting goods. 6th Annual Labor Law Institute The 1984 Labor Law Institute. jointly sponsored with the Labor Law Section of the Arkansas Bar Association. the National Labor Relations Board. the Industrial Research and Extension Center of UALR,
and the American Arbi-
tion, Sales and Use
tration Association. was
Taxes. miscellaneous
held March 23-24. 1984. at the DeGray Lodge, Arkadelphia. The program concen trated on topics including arbitration; labor and employment relations developments at the Eighth Circuit Court of Appeals; Dis-
taxes and an update of the Federal Income Tax. Federal Court
crimination Law; Dav-
is-Bacon Act on whether minimum wages are necessary in the con-
struction industry; Quality of Work Life/Pro and Con; safety and health; Unemployment Compensation with an emphasis on issues under the Arkansas Employment Securities Law and the Appellate Process; employer responsibility; affirmative action after
W. R. Grace; developmen ts regarding Protected Concerted Activity with reference to NLRB pronouncements on Section VIII(aXI) violations; sexual harassment under Title VII and the rights of employees who claim sexual harassment on the job; employment at will and the Teacher Fair Dismissal Law in Arkansas. Tax Awareness Institute The 6th Annual Tax Awareness Institute. jointly sponsored with the Taxation Section of the Association. was held at the Excelsior Hotel. Little Rock. on April 27. 1984. This year's
program,
co-
chaired by H. Lawrence Yancey. of Little Rock, and Joseph Hickey. of El Dorado. focused on the Arkansas State Tax Procedures Act. the Department of Finance and Administration and existing regulations, the difference between Arkansas income taxation
and U.S. income taxa-
Orientation Program
The Federal Court Orientation Program,
jointly sponsored with the Arkansas Association of Women lawyers. returned this year to the Federal Courthouse. Little Rock. on May 7. 1984. Its
co-chairs
were
Carolyn B. Witherspoon and Jacqueline S. Wright. Topics presented were the U.S. District Court and U.S. Bankruptcy Courts duties and filing procedure. U.S. Court of Appeals-Eighth Circuit practice; practice and procedure of the Federal District Court, and pitfalls to avoid in a Federal district court. The highlight of the afternoon proceedings was a swearing-in ceremony.
Topics were directed to newly admitted attorneys with up to five years experience and
who deal with the basic fundamentals of federal court practice.
Security Short Course The Securities Law Committee of the Association will offer halfday security short courses from May 17-24 in Little Rock. Jonesboro. Fayetteville. Texarkana and Pine Bluff. Topics will include scope in general of Securities Law; registra-
tion and exemptions under Federal and State law and anti-fraud and liability with an emphasis on disclosure. due diligence and malpractice
under
anti-
fraud, and remedies, limitations, aider and the abettor, control persons and protection July 19B4/Arkansas Lawyer/ISS
available.
EXECUTIVE COUNCIL REPORT By Annabelle Clinton March 31. 1984 A meeting of the Executive Council of the Arkansas Bar Association was held at the Red Apple Inn, Eden Isle, on March 31, 1984, Chairman James H. McKenzie called the meeting to order at 9:00 a.m. and presided throughout. Others present were Dennis L. Shackleford, president; Annabelle Clinton, secretarytreasurer; Norwood Phillips, Robert M. Cearley, Thomas L. Overbey, Marcia McIvor, Joe B. Reed, Julian B. Fogleman, Kaye S. Oberlag, and Gary Nutter, members of the Council; William R. Wilson, Jr .. president-elect; Cyril Hollingsworth, presIdent of the Arkansas Bar Foundation; Robert L. Jones, Ill, Arkansas Bar Foundation; Colonel William A. Martin, executive director; Clay Patty, AICLE; Charles L. Carpenter, Jack McNulty, Jim Rhodes and Mac Glover. The Council approved the minutes of the January 21. 1984, House of Delegates meeting, the Association's financial statement of February 29, 1984, and the membership report dated March, 1984. President Shackleford reported that David Malone, Dean Jake Looney and Herman Hamilton have been appointed to the Arkansas Law Review Board. President Shackleford IS6/Arkansas Lawyernuly 1984
reported that the Association will host a reception for the judges at the Judicial Council meeting on April 19, 1984. President Shackleford will also make a presentation to the Judicial Council on April 21. 1984, concerning the Judicial Poll and the implementation of Trial Practice Committees. Robert M. Cearley, Jr., submitted the Annual Meeting Site Report. The Council passed a motion to present to the House of Delegates at its next meeting the issue
of whether we should change the site of the annual
mid-winter
year service.
12 days per year for employees with 1-5 years. 18 days per year for employees with 10-15 years. 20 days per year lor employees with 15-20 years. 22 1/2 days per year for employees with 20 years or more.
William R. Wilson, Jr., president-elect, announced the appointment of Mac Glover to chair the Executive Council for 1984/85. Jack McNulty, chair of the Jurisprudence and Law Reform Committee, presented his commit-
meeting. The presenta-
tee's report on proposed
tion will be made by Mr. Cearley without recommendation of the Council. William R. Wilson, Jr. presented the Association's proposed budget for 1984/85. The Council adopted the proposed budget. The following
legislation submitted to the Committee on or belore February 10, 1984. The Executive Council, after considering the Committee's report,
comments were made
concerning the budget: The postage line-item has been increased due to the possible loss of the Association's notfor-profit postage permit. The Arkansas Lawyer line-item has been decreased because no directory will be published in 1984/85. The Legislation line-item has been increased because 1984/85 will include a legislative session. No funds will be included lor Long Range Planning Conferences during legislative session years. Finally, the president has been given a Discretionary Fund in the amount 01
$5,000.00. The Council adopted a new Leave Policy lor Association employees, which is as follows: 10 days per year for employees with I
made no recommenda-
tion, deferring such action until the next meeting of the Council in May, 1984, with the exception that under the section headed "Do Not Recommend," Item No. 6, should be amended to refer the proposed legislation to the Family Law Section for report to the Council in May, 1984. Also, under the section headed, "Not Considered," Item No.2, the Council acknowledged that this proposed legislation will require special handling. Finally, the Executive Council directed Jack McNulty to advise the substantive committees concerning the action taken by the Jurisprudence and Law Reform Committee on
the Association's proposed legislative package. In other business, the Council concluded that, with respect to the unjust criticism 01 judges,
the Association must react through its legislative body, the House of Delegates. Executive Director Colonel William A. Martin was authorized to spend up to Three Hundred Dollars ($300.00) on a badge-making machine. The Council adjourned into executive session to discuss the legislative lobbyist selection process. At the conclusion of the executive session, the Council adopted a written job description for the legislative lobbyist. The Council also adopted the procedure that it would employ the legislative lobbyist lor the Association based upon applications to be considered at the immediately following Executive Council meeting in May. The Council authorized Colonel William A. Martin to send the following telegram to Senators Pryor and Bumpers on April 2, 1984: "The Executive Council of the Arkansas Bar Association urges you to vote in lavor of the McClure Amendment to the FTC Bill." Dean Jake Looney invited the Executive Council to hold its next meeting on April 28, 1984, in Fayetteville, Arkansas, at which time the Honorable Warren Burger, Chief Justice of the United States Supreme Court, will be speaking to the University of Arkansas School 01 Law in Fayetteville. The meeting was adjourned at 12:15 p.m. Annabelle Clinton Secretary-Treasurer 0
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