Welcoming back the best. One of the finest representatives in legal publishing has returned to Arkansas. Join us in welcoming back Bill Margrave. It's great to have someone like Bill working for
us when dealing with such an important part of our practice. Bill, it's great to have you back in Arkansas!
Bill Margrdvc MATTHEW BENDER & CO. 3102 Seminolc North Lilllc Rod., AR 72116 Business 374-8463. Residencc 834路8556
Vol. 21, No.1 OFFICERS
Richard F. Hatfield. President John F. Stroud. Jr.. President-Elect Sandra Wilson Cherry, Sec.-Treasurer
Randall W. Ishmael. Council Chair
Wm. A. Martin. Executive Director
Judith Gray, Assistant Executive Director
EXECUTIVE COUNCIL H. Murray Claycomb John D. Eldridge. III Robert S. Hargraves
Donald K. Harp Ronald D. Harrison
Jack A. McNulty W. Russell Meeks. III Stephen M. Reasoner
Robert G. Serio Bobby E. Shepherd
EDITOR Ruth M. Williams. Director of Communications and Public Relations
The President's Report
Law. Literature & Laughter
A Glimpse at Insurance Legislation with Robert M. Eubanks III. State Insurance Commissioner
Robert R. Wright. 1II
Richmd F. Hatfield John F. Stroud. Jr. Don M. Schnipper Sandra Wilson Cherry J. Thomas Ray Randall W. Ishmael
2 Labor and Employment Law: A Review of Principal Cases. by Walter A. Paulson and Michael S. Moore
James M. Simpson. Ir.
George Rose Smith. by Robert L. Brown
17 26 29 30 31 33
In Memoriam Judicial Department Report Executive Director's Page Young Lawyers' Update In-House News
The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. 400 West Markham.
Little Rock. Arkansas 72201. Second class postage paid at LillIe Rock. Arkansas.
ON THE COVER:
Subscription price to non-
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SID. 00 per year included in annual dues. Any opinion expressed herein is
that of the author, and not necessarily that of the Arkansas Bar Association. or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to the Arkansas Bar Center. 400 West Markham.
Little Rock. Arkansas 72201. All inquiries regarding advertising
should be sent to The Arkansas Lawyer
Justice George Rose Smith knowledgeable. emphatic. to the point and somewhat intimidating - is profiled by Robert L. Brown as the longest tenure in the history of the Arkansas Supreme Court comes to an end. On January I. 1987. Juslice Smith retires from the Court after 38 years of continuous service. He leaves a legacy. Brown says. which cannot be measured in mere numbers.
at the above address.
January 1987/Arkansas Lawyer/l
THE PRESIDENT'S REPORT
Time To Take a Stand system have been opposed by the House of Delegates for the reason that no evidence from the insurance companies has shown that these changes will solve the problems of reasonable, affordable premiums and reasonable
By Richard F. Hatfield The people of Arkansas have a problem, and those of us in the legal profession have been accused by some to be a contributing factor. The problem is that many Arkansans cannot buy liability insurance for affordable
coverages. Furthermore. some deal with procedural matters re-
premiums and adequate cover-
served to the Supreme Court. These opposed changes include;
ages. Is this the lawyers' fault as many in the insurance industry
1. Joint and several liability rules; 2. Collateral source rule; 3. Dividing trials to decide liability and damages separately; 4. Limit on non·economic damages; 5. Regulation of contingent fee agreements.
claim? Some would blame lawyers for encouraging lawsuits by distasteful advertising, filing frivolous lawsuits and keeping a system with rules to prevent "justice." Some of these so-called "rules" are: 1. Joint and several liability -
defendant who was found only ooe-
percent negligent by the jury must pay all damages awarded the claiming parties;
2. Collateral source rule -
shouldn't the jury know about hospitalization insurance or work mens'
compensation payments received. by an injured. claiming party?; 3. Contingent fees - Encourages lawyers to file lawsuits regardless of their merit; 4. Punitive damages - These Qwards are causing such high premiums and lower limits of coverage; 5. Non-economy (pain and suffering) damages - The awards are far out of proportion to merit.
Your Association is working on
these questions. A select committee of attorneys who traditionally represent both plaintiffs and defendants have analyzed the issues and made recommenda-
tions to your House of Delegates and Legislative Oversight Committee. Your lobbyist. Martha Miller, committee chair lim Moody and I have appeared before legislative committees, worked with other interested parties to determine the 21Arkansas LawyerIJanuary 1987
real cause of the problems and have represented your Association's position.
ACTION TAKEN. Your House of Delegates has taken the following action: l. Supported Insurance Commis· sioner Robert Eubanks' proposals to obtain necessary information from insurance companies to determine the extent of and reasons for the present situation regarding insurance coverage and premium rates; 2. Supported a mandatory seat·
3. Proposed that the state adopt a policy that punitive damages not be insurance; 4. Dealt with frivolous lawsuits by informing the legislature that Rule 11 to the Arkansas Rules of Civil Pro· cedure (effective September 15, 1986) solves this problem by granting to the trial judge very broad authority to impose sanctions, including legal fees, against a party taking a written posi· tion determined. to be without merit in fact or law.
OPPOSED CHANGES IN CIVIL JUSTICE SYSTEM. Several pro-
posed changes in our civil justice
Each of us has a duty to "improve the administration of justice." We must carry this out and can do so in the following ways; I. If you know of any changes of the Association's position which will im· prove our system, notify me;
2. CONTACT YOUR SENATOR AND REPRESENTATIVE AND THE GOVERNOR to let them know your feelings
AND WHYI; 3. Talk with your clients and friends about the problems and solutions to understand their views and help them understand the bar's position. This may be the most effective step!; 4. Notify the Association to let us know of the situation in your area, so that we can effectively represent you; 5. Keep up with the developments now and during this legislative session and continue with the above actions; 6. Support your Association's effort
by your effort and LAWPAC contribution.
These issues have resulted in more media attention and attorney involvement than any in recent
memory. Each of us has a duty. Spend at least one hour of your time and $50 of your money on this vital problem. We must be prepared to step forward and take a stand. 0
call or write today for more information or to arrange for a free WESTLAW demonstration in your office. ROO P. DURKEE 9 Johnnycake Lane little Rock, AR 72211 Phone: (res) 501/225--3652 Little Rock 501/378-4676
more:' WFSTT I
J\ l AT~ 1 LnV V
1-800-328-0109 (MN. AK 612/228-2450) p.o. Box 64526 St. Paul. MN 55164-0526 漏1986 \~St Publishing Co. 9338路819路86
LAW, LITERATURE & LAUGHTER
ALMA-ATA, KAZAKH SOVIET SOCIALIST REPUBLIC - The series of columns on OUI Constitution's Bicentennial is briefly interrupted for a report from behind the Iron Curtain. Last year an Arkansas lawyer went to Moscow to negotiate a protocol by which several political exchanges would occur between "young leaders" of the U.S. and U.S.S.R. or, as one writer put it, Yuppies and Ruppies. The first exchange was in Arkansas last July. The Soviet delegation also visited Portland, Washington and New York. The second exchange was in this, the capital of Kazakhstan. We Americans also visited Moscow and will visit Leningrad. As Arkansas was the unknown U.S. heartland to the Soviets, so was Kazakhstan to the Americans. One of the U.S.S.R.'s 15 republics, the Kazakh S.S.R. is in the center of the Eurasian continent. Its population of 15.5 million consists of 43% Russians, 30% Kazakhs and a smattering of Ukranians, Tatars and Uzbeks. As Little Rock was a small town to the Soviets, so was Alma-Ata to the Americans. With a 1.1 million population, this city is nestled in the foothills of the snow-capped Zailiysky Alatau mountains. Alma-Ata means "Father of Apples," and the abundance of orchards in the area confirms the accuracy of the translation. Here the Soviet and American delegations (15 people per country) met. The immediate cry sounded ever so familiar: "Lawyers, lawyers everywhere!" On the American side were five J.D.s. The Soviets had two. My first order of business was to make friends with my Communist colleagues. I made them promise to assist me in time of legal difficulty, should such occur. But where were they when I needed them? These Muscovites had rarely been to Kazakhstan, Alma-Ata being three time zones from 41Arkansas Lawyerllanuary 1987
fermented mare's milk. That's mare, as in female horse. An interpreter from Moscow was right when, refusing to taste it. she declared, "The very thought of it makes me ill." The first person in history to drink the stuff was the bravest ever - far surpassing whoever ate the first egg. We were served what, owing to a shortage of other meats, most Kazakhs eat a lot of in winter. To wit: horse. One never really knew when to expect the horsemeat - it appeared in hors d'oeuvres, main
By Vic Fleming Moscow. Thus, they were ill equipped to help me with local rituals. Especially"at mealtimes, when the crises occurred.
In the Soviet Union it is considered rude not to follow the lead of one's host. In contrast, hosts consider it their polite duty to introduce foreigners to local customs. I did not want to be rude, but there were times when enough was enough. There was the occasional dish that I was obliged to eat before knowing the identity thereof. I survived valiantly when told halfway into one course that it contained the internal (and semiexternal) organs of a lamb, ALL of them! There were repeated toasts with a drink that, in local legend, stimulates the sexual hormones -
dishes and soups. Finally, there was a rite administered in the one household into which I was invited for dinner. The main dish of lamb was brought to the table succulently cooked with onions, peppers and potatoes. Everyone had a plate except me. I realized something else was cooking. In walked the host with a large platter. He announced that. according to Kazakh custom, the honored guest received the special dish. He then set before me the lamb's head! That's head. as in face, ears, nose, mouth and chin. I did not want to create an international incident. but it was time for me to speak. "Many things that once were customs in my
country," I said, "are now illegal. Or at least inequitable. May I have a moment to call my lawyer to determine whether I will be breaching any law by consuming this dish?" I'm not satisfied the translator conveyed the message accurately, but the request was not honored. So I ate face of lamb, trying not to think about Bo Peep, Mary and the little boy who cried "Wolf." On my return to America when asked by friends about Soviet people, I will say, "They are just like you and me. They eat horsemeat. They drink old, sour mare's milk to improve their love life. And when you try to consult a lawyer about your rights, they force you to eat the head of a lamb." 0
Where there's awill, there's a wa~ How does Arkansas Children's Hospital maintain its position as one of the finest and 20 largest pediatric hospitals in America? One important way is through the support of the Arkansas legal communityespecially in the form of gifts provided in wills. If you are asked by your clients for suggestions on charitable bequests, we hope you will consider recommending Arkansas Children's Hospital-because no more worthwhile beneficiary can be found than Arkansas' children. Gifts of all types, including cash, securities and property are appropriate and deeply
appreciated. They can even be designated to help a specific medical program offered by the hospital. Please join us in planning for the future for Arkansas' children. Because your children are our children.
CHILDREN'S HOSPITAL Your children are our children.
For information regarding bequests, please contact tile Arkansas Children's Hospital Foundation, 800 Marshall Street, Little Rock, AR 72202 (501) 370-1470. January 1987/Arkansas LawyerlS
LABOR AND EMPLOYMENT LAW A REVIEW OF PRINCIPAL CASES
his has not been an easy time to practice employment law. The courts have not been predictable, as many had thought. The nation's highest court has been in disagreement on key issues, with decisions, when given, resembling "card-houses" aligned and capable of tumbling with the slightest breeze. The Eighth Circuit, though professing in some cases to try, has been
more successful at establishing consistency. faring badly in the
attempt if only because, unlike the Supreme Court. it must act through panels. LABOR LAW Preemption
The U.S. Supreme Court heard and decided three cases dealing 6/Arkansas LawyerlJanuary 1987
with NLRA preemption in what
tional campaign. To prevail on the
was otherwise an unremarkable term as far as "pure" labor cases are concerned.
preemption question, the union
In International Longshoremen's Association, AFt-CIO v, Davis, _ _ U.S. _ _,122 LRRM 2369 (May 27, 1986), the Supreme Court held that a union had failed in its proof to establish that conduct-union organizing activity by a supervisor-was "arguably protected or prohibited" by the National Labor Relations Act and, therefore, preempted from state court interference. The supervisor
had sued the union for misrepresentation when, after his discharge, the union failed to get him reinstated with backpay as it had promised during the organiza-
was required to show that the supervisor was a statutory
"employee" and entitled to the act's protection. No evidence had been offered on that issue and the Court held that the union's mere assertion was insufficient to sup-
port a judicial finding of arguably protected conduct under the Garmon doctrine.
On a second issue, the Court reversed the Alabama court's de-
termination that the preemption issue, raised after the jury award, was untimely and/or waived. The Court held that preemption was governed by federal law and could be raised at any time as a non-
waivable foreclosure of the state court's jurisdiction. 1
By Walter A. Paulson and Michael S. Moore
In another Garmon doctrine
preemption case, Bakerv, General Motors Corp .. _ _ U.S. _ _, 106 S.Ct. 3129 (I986), the Court held that the NLRA does not preempt a state's statutory denial of unemployment benefits to laid-off workers who are alleged to be causing their own unemployment
by "financing" the labor dispute. The Court first found that the state had identified a "meaningful connection" between the payment of emergency dues for strike support, the strike itself and the ensuing layoffs. The Court then looked to the legislative history of the Social Security Act. finding congressional intent to leave the states free to administer unemployment programs and to distinguish between voluntary and involuntary unemployment. fn light of that act and Congress' intent, it could not be said that the NLRA was in-
tended to prohibit by preemption the ability of states to make such policy decisions.' On the other hand, however, the Court found preemption under Garmon in Wisconsin Dept. of Industry v. Gould, _ _ U.S. _ _, 106 S.Ct. 1057 (1986). In Gould, state law forbidding state purchases from repeated NLRA violators was found to be preempted by the NLRA. The Court refused to allow a state to escape the Garmon prohibition of separate regulation or remedies on the ground that it was exercising its spending powers rather than its police powers. Nor was the state's participation as a mere consumer in the market con-
trolling, since there is an established distinction between state and private interference
under the act. Finally, in Golden Gate Transit
Corp. v, Los Angeles, _ _ U.S. _ _, 106 S.C!. 1395 (I986). the Court would not allow a city to condition the renewal of a taxi franchise upon the resolution of a labor dispute between the taxi company and its employees. This conditional approach interfered with the balance of power Congress intended to create between em-
ployers and workers, and was therefore preempted by the NLRA under the Machinists doctrine. That doctrine, as distinguished from Garmon. recognizes preem p-
Editor's Note: Walter A. Paulson, of Little Rock, is chair of the Arkansas Bar Association's Labor Law Section and is a partner in the Friday, Eldredge and Clark law firm. Michael S. Moore is an associate in the firm.
January 1987/Arkansas Lawyern
tion when a state (or political subdivision), even though exercising a traditional governmental function, intrudes impermissibly upon the collective bargaining process, denying to one party in the process a weapon Congress intended to be left to the free play
here a "goal." but Court-ordered and subject to stiff contempt fines if not met by a certain date. These justices were joined by one who concurred only if the relief did not require the laying-off of non-
of economic forces.
viewed as a quota, not a goal. but would support relief for nonvictims if limited to goals; finally, two justices would disapprove any
AMOCO IV Rejected In a case described as a rare departure" from the Court's special deference to the NLRB in representation cases, the Supreme Court in NLRB v. Financial Inslilution Employees Local 1182. _ _ U,S. _ _. 106 S.Ct. 1007 (1986). overturned the Board's rule allowing non-union employees to vote in a certified union's decision
whether to affiliate with another union. The Court viewed this as an internal union matter and viewed
the Board's rule as contrary to the goal of labor peace and inconsistent with the NLRA. Under this new formulation, only if the affiliation somehow raised a question of representation would the act authorize the Board to conduct an election.
EMPLOYMENT LAW Affirmative Action Since its decision in Firefighters Local Union No. 1784 v. Stotts. _ _ U.S. _ _. 104 S.C!. 2576 (1984), the Court has taken several
minorities; another justice dissented because the order was
racial preference for non-victims.
In Local 93, Firefighters v. Cleveland. 106 S.Ct. 3063 (1986). the Court reviewed race-conscious
relief in the context of a consent decree. Here the vote was 6-3 approving such relief. Whatever the limits placed upon courts under §706(g), a consent decree-a voluntary settlement-may under Weber include reasonable raceconscious relief that includes nonvictims. even if that relief is broader than the court might have awarded at trial. The Court based its reasoning in part on the concept that, since §706(g) was written in part to preserve managerial discretion, it did not make sense to apply it as a strict limitation in a voluntary setting. By contrast, Stotts was an attempt by a court to modify a consent decree in a manner inconsistent with the statute.
polarization seems to have devel-
In Wygant v. Jackson Board of Education. _ _ U.S. _ _. 106 S.Ct. 1842 (1986), the Court in yet another 5-4 decision considered the legality of race-conscious layoff clauses in a collective bargaining agreement. The clause in effect required the layoff of tenured
oped on the Court and opinions are forming from pluralities, collected
non-minority teachers while less senior probationary minority
concurrences and partial dissents. It remains to be seen whether the appointment of Justice Scalia will affect this tenuous balance. In Local 28. Sheet Metal Workers' International Ass'n v. EEOC. _ _ U.S. _ _. 106 S.Ct. 3019 (1986). the Court considered whether court-established "goals" violated either Title VII or the Equal Protection/Due Process clauses. A key issue in this case was whether it is permissible under §706(g) of the 1964 Civil Rights Act to provide raceconscious relief which benefits persons who are not actual victims of discrimination ("non-victims"). A four-justice group held that §706(g) did not bar such relief 8/Arkansas Lawyer/January 1987
teachers were retained. The majority in this opinion was obtained by a concurrence which would disapprove any layoff decisions made solely on the basis of race, with no more justification than this record provided. as violative of the Equal Protection Clause. At least three justices expressly disapproved of the "role model"
cases raising affirmative action
issues, apparently in hopes of lay· ing the subject to rest. Instead, c
Sexual Harassment The Supreme Court Meri tor Savings Bank v. Vinson. _ _ U.S. _ _, 106 S.Ct. 2339 (1986), considered a court of appeals decision which would have applied absolute liability, without employer notice of the offending conduct, for sexual harassment. The court of appeals had remanded because the district court failed to consider the facts under the "hostile environment" theory - that is, unlike quid pro quo harassment which withholds or promises a benefit. this harassment is not conditioned per se upon a benefit. but rather looks to the intolerable, offensive or abusive nature of the environ-
ment created in the work place by such harassment. The Supreme Court. as expected, recognized the "hostile environment" cause of action,3 but
declined the invitation to state a definitive rule on employer liability (absolute or otherwise). Instead, the Court invited the courts to look to traditional agency principles to determine whether liability should apply in a particular case. Employers under those principles are not "automatically" liable for the acts of supervisors, but by the same token cannot "automatically" defend because they have an anti-sexual harassment policy or because they had no actual notice of the harassment. The Court cited the Restatement (2d) of Agency §228, which provides that the conduct of a servant is within the scope of employment only if it is the kind he is employed to perform and is actuated at least in part by a purpose to serve the master. For future protec-
tion, then, every employer should consider adopting a strong antisexual harassment policy which includes a grievance procedure
and, where applicable. provides that a grievant may circumvent or
bypass the harasser and complain to higher management if he or she wishes.
theory (minority children require
minority teachers as role-models) advanced by the defendant Board as a reason for its lay-off policy. The Court applied "strict scrutiny" analysis and found that the means used were not narrowly tailored to achieve a compelling state interest; the clause was therefore unlawful.
Attorneys' Fees The Court decided several interesting issues concerning
attorneys' fees in civil rights (or other statutory fees) cases. Last year, the Court had determined that attorneys' fees could be included in the lump sum offer of judgment (Rule 68. Fed. R. Civ. P.l,
and that if a subsequently obtained judgment is less than the offer, the defendant would not be liable for attorneys' fees incurred after it was made. Marek v, Chesney, 473 _ _ U.S. _ _ , (1985). It next looked at whether ยง 1988 requires federal courts to disapprove proposed settlements of civil rights class actions when the relief offered equals or exceeds the probable outcome at triaL but is expressly conditioned upon waiver of statutory eligibility for attorneys' fees. In Evans v. Jeff D., _ _ U.S. _ _, 106 S.Ct. 1531 (1986), the Court decided that 42 U.S.C. ยง1988 does not require federal district courts to disapprove such settlements. The Court referred to its earlier opinion in Marek, which had noted the importance of resolution of fees issues to defendants in such cases, and ruled that any "dilemma" created by the attorney's apparent conflict was not an ethical one. The Court was concerned that any general prescription against a negotiated waiver of fees might impede vindication of civil rights in some cases. Next the Court considered whether a plaintiff could recover a fee for work performed in administrative proceedings, and whether such an award can be adjusted upward for "high quality" or the contingent nature of the compensation. In Pennsylvania v. Delaware Valley Citizen's Council for Clean Air, _ _ U.S. _ _, 106 S.C!. 3088 (1986), the Court held that a plaintiff could recover fees for time spent by an attorney in administrative proceedings to enforce a
consent decree under the Clean Air Act (or, by implication, ยง1988). The Court also held that a "lodestar" fee should not be adjusted upward for superior performance, since the lawyer's ability should already have been accounted for in the lodestar. While the Court declined to decide whether upward adjustments for contingencies are appropriate, there were strong hints in the opinion that they would unlikely be approved. In City of Riverside v. Rivera, _ _ U.S. _ _, 106 S.Ct. 2686 (1986), the Court determined that the amoun t of fees available to prevailing parties in civil rights
cases was not limited by the amount of damages recovered. A 5-4 Court refused to apply a proportionality rule. Again, only the concurrence of one justice who joined the result but not the reasoning-Justice Powell felt constrained to uphold the explicit and careful findings of the trial court under Rule 52-kept the case from going the other way. Miscellaneous The Supreme Court in Bazemore v. Friday, _ _ U.S. _ _ , 106 S.Ct. 3000 (l986), held that the Court of Appeals had erred in refusing to accept a multiple regression analysis offered by plaintiffs on the ground that it did not contain certain relevant factors which were measurable and were
thought to have an effect upon salary. The Court agreed that failure to include such variables may reduce probative value, but held that "normally failure to include variables will affect the analysis' probativeness, not its admissi-
bility." The Court also upheld the district court's refusal to certify a statewide class because this appeared to be an attack upon decisions which were made independently county-by-county and there was no evidence of a standardized practice. On perhaps the key issue in this case, in apparent affirmation of the adage "good cases make bad law," the Court held that where there were separate black and white employee-salary structures prior to the Civil Rights Act, and these separate pay systems were merged in 1964 without curing the existing
disparities that remained in effect after 1972 (the year the law was applied to local governments) were part of a pattern and practice of Title VII violations. According to the Court, each week's paycheck was a new violation and was actionable regardless of the fact that the practice was implemented prior to the effective date of Title VII. The Court distinguished Evans v. United Airlines because in Evans the employer was no longer engaged in discrimination. The current plan, by contrast, was a mere continuation of the pre-1965 discriminatory pay structure. In its most recent statement con-
cerning claim preclusion in civil
rights cases, the Court in University of Tennessee v. Elliott, _ _ U.S. _ _, 106 S.C!. _ _ (1986), held that the decision of a state administrative agency acting in a judicial capacity will have precl usi ve effect in cases under Reconstruction Era civil rights statutes, but not under Title VII. In the former, if disputed issues properly before the agency are resolved, and the parties had adequate opportunity to litigate, the decisions are to be gi ven the same preclusive effect to which they would be entitled in the state's courts. Such administrative proceedings do not have preclusive effect under Title VII. however, because Congress did not intend thai result. according to the Court's review of the statute and relevant legislative history. While not all that important as a Fair Labor Standards Act case, Icicle Seafoods. Inc. v. Worthington, _ _ U.S. _ _, 106 S.Ct. _ _ (1986) is a helpful postAnderson v. Bessemer City case clarifying the Supreme Court's interpretation of Rule 52(a), Fed. R. Civ. P. In Icicle Seafoods, the Ninth Circuit had employed "de novo" review of a trial court's determination that certain employees were excluded from overtime benefits because they were "seamen." The appeals court had reversed, reviewing the application of the law-in this case the FLSA exem ption-de novo, but applying the clearly erroneous standard to the lower court's fact findings. The Supreme Court held that the court of appeals had instead merely determined that the district court applied the wrong legal standard, then applied the correct standard to its own review of the facts. This it could not do. A proper application of Rule 52(a) requires that a court of appeals may not engage in fact-finding. If the appellate court determines that the trial court has applied an incorrect legal standard, and has not made fact findings necessary to a proper resolution, the case should be remanded for proper findings and an application of the correct standard. In no case should an appeals court simply make factual findings on its own. January 1987/Arkansas Lawyer/9
EIGHTH CIRCUIT DECISIONS In Nolting v. Yellow Freight System _ _ F.2d _ _,41 FEP cases 1069 (8th Cir. 1986). a panel considered a challenged jury instruction in an ADEA ("Age Act") case. The instruction given at trial
would establish a "business necessity" defense to disparate
impact allegations made against an employer, if the employer could show that a business purpose was "significantly served" by the challenged neutral practice. The appellant had urged that the employer was required to show a "compelling need" for the practice, relying upon Leftwich v. HarrisStowe State College, 702 F.2d 686 (8th Cil. 1983). The Court of Appeals, after reviewing the conflicting cases, adopted the "significantly served" language.
Nolting is important because it arguably applies more broadly than Age Act cases. The Court of Appeals relied upon eight cases, only one of which was an Age case, and the court applied New York City Transit Authority v. Beazer. 440 U.S. 568 (I 979). Beazer establishes the proposition that an employer is not required to show a "compelling need" in order to present a business necessity defense. Instead, as the court held in Nolting. supra. the test is whether the employer's legitimate employment goals of safety and efficiency are "significantly served byeven if they do not require" the rule or practice in question. ld.. citing Beazer. supra. There is now a very
decisive split among panels in this
Circuit on the test to be applied.' In Schneider v. Jax Shack. Inc.. _ _ F.2d _ _,41 FEP Cases 266 (8th Cir. 1986), a panel with one judge dissenting reversed the district court dismissal of a suit alleging sex discrimination in a dis-
charge from employment. The complaining employee, upon notifying her employer she was pregnant, was told that she would have to give up her current bartender
duties on a specific date because of the risks to her condition and that she might instead work parttime as a cocktail waitress. Although she was later told she could work full-time as a waitress during January, she resigned saying she had found another job. Relying upon Johnson v. Bunny lO/Arkansas Lawyer/January 1987
Bread Co.. 646 F.2d 1250 (8th Cir. 1981). the trial court found that those facts did not constitute a "constructive discharge," since there was apparently no intent to force her to resign when the action was taken. The Court of Appeals overcame this precedent by finding that this was an "actual" rather than a constructive discharge, because the future prospects of continued work were so nebulous. While not all reassignments involving a reduction in hours should be viewed as discharges, in the proper case. after considering the realities of the situation, a court may determine whether a discharge "has in essence occurred." Johnson. supra at 1256, defines constructive discharge as "when an employer deliberately renders the employee's working conditions intolerable and then forces him/her to quit his/her job." Apparently, a decision reversing through application of Johnson would have required a "clearly erroneous" finding by the Court of Appeals; this resolution did not. Instead, we now have at least three forms of discharge in this circuit: "actual actual" (in which the employee is not discharged), "in essence actual" (in which the employee is not discharged, but seems to be) and "constructive" (in which the employee is also not discharged, but the employer acts with the intent to force him/her to quit). In Hervey v. City of Little Rock. _ _ F.2d _ _,40 FEP 928 (8th Cir. 1986), after reviewing and approving post-trial class decertification in reliance upon Falcon and Roby. supra. the Court of Appeals turned its attention to consideration of the remaining individual cases. In so doing, the court decided two issues which have broad application: First. the court held directly that a female claimant could not enforce her time-barred Title VII sex discrimination claim through 42 U.S.C. 搂1983. The court also considered the proof requirements in "mixed motive" cases involving alleged violations of 14th Amendment equal protection rights. The city's burden was described as one "of establishing that the same decision would have been made absent the discriminatory motive ." In such cases. there is no
violation because "sufficient causation (does) not exist between the sexually discriminatory factor considered and the resulting promotion decision. .." The court distinguished this mixed motive test from that applied in Title VII cases, wherein liability is found if the routine is at all discriminatory. but any remedy, such as an award of promotion, backpay or the like, may be avoided by a "same decision" showing by the employer. Bibbs v. Block. 778 F.2d 1318, 1323-24 (8th Cir. 1985). In case anyone thought that Baker and Golden State Transit (reviewed supra) gave all the answers, the Eighth Circuit has already distinguished them in United Steelworkers of America AFL-CIO-CLC v. Johnson. 799 F.2d 402 (8th Cir. 1986). There the Court reviewed a South Dakota statute which paid unemployment benefits to locked-out non-union members. but not to union members. who were determined to be out-of-work because of the original strike which had precipitated the lockout, and who were therefore ineligible for benefits. The Court of Appeals, finding that this distinction substantially altered the balance of power intended to be created by Congress under the NLRA, found the statute to be preempted under Garmon and Brown v. Hotel and Restaurant Employees. 468 U.S. 491 (1984). D
Compare Belknap. Inc. v. Hale. 463 U.S.
The Court had spoken 10 the "flip-side" 01 this coin in New York Telephone Co. v. New York Dept. 01 Labor. 440 U.S. 519 (979). There the Court held that the NLRA did not preempt a state's power to pay unemployment benefits to strikers. The Court carved out a somewhat vague semantical distinction between voluntarism and "unwelcome" sexual advances. The issue. said the Court. is not whether the acquiescence or acts of the plaintiff were voluntary but rather whether the advances were 路路unwelcome." The Nolting court pointed out that some Eighth Circuit decisions describe the defense as requiring that the employer "must show a manifest relationship to be employment . .. and that there is a compelling need . . .," quoting Leftwich v. Harris-Stowe State College. Supra: Hawkins v. Anheuser-Busch. Inc .. 697 F.2d BID. BlS (Bth CiT. 19B3); and Kirby v. Colony Furniture Co .. 613 F.2d 696. 705 N. 6 (Bth CiT. 19BO); or. in the alternative. as requiring a showing that the "practice is 'necessary to safe and efficient job performance路 ... ld .. citing McCosh v. City of Grand Forks. 62B F.2d IOSB (Bth CiT. 1980), and Roby v. St. Louis Southern Railway Co ..
775 F.2d 959. 963 (8th CiL 19851.
A GLIMPSE AT INSURANCE LEGISLATION With Robert M. Eubanks III State Insurance Commissioner In the last two years. much has been said and done concerning tort reform and insurance reform.
Forty states have enacted measures that address our system of civil justice. A like number of states have expanded their regulation o( insurance and established voluntary or mandatory market assistance programs to find or provide liability insurance of one form or another. Their actions follow no patterns. A surprising number have abolished joint and several liability altogether. while others have made significant modifications. Eight states have addressed fees. nine states have modified the collateral source rule and 18 states have capped damages in some fashion. It is clear a significant portion o( our population has taken the position that civil justice can and must be improved. When Arkansas' 76th General Assembly convenes on Monday. January 12. 1987. it will (ace many critical issues. not the least of which will be insurance. The Arkansas Insurance Department began submitting proposed legislation to the Joint Interim Committee on Insurance and
Commerce in April of last year. Although the cornerstone of our legislati ve package addresses the most urgent matter of dramatic increases in property and casualty insurance premiums. we feel
January 1987/Arkansas Lawyer/tl
a meaningful competitive rating law and improved rural fire protection merit the most
"We feel a meaningful competitive concern. rating law The present and improved law on competitive rating rerural fire quires that for a protection rate to be excessive. it must merit the be determined most concern," that the premium is too high for the coverage provided and that a reasonable degree of competition does not exist in that area. No guidance is provided to make these determinations. We need clear definitions of these and other terms to provide the methods necessary for establishing the rates to be used in Arkansas. Our proposal revamps the competitive rating law to prohibit rates from being excessive, inadequate or unfairly discriminatory; to prohibit price-fixing and other anticompetitive behavior; to promote competition; to provide regulatory controls in the absence of competition; and to require the insurance industry to provide price and other relevant information to purchasers of both personal and commercial lines of insurance. Rates will be determined by giving consideration to past and prospective loss and expense data which is within and outside Arkansas, by the catastrophic hazards which may occur, by events or trends and by all other relevant factors including judgment. All submissions for rate changes will include Arkansas and national experience for the past five years. The credibility assigned to Arkansas must be fully explained.
notice to the insured if a renewal premium will increase by 25 percent or more as a result of a filed rate revision.
Section 8 of the proposal provides that where a reasonable degree of competition may not exist. the insurance commissioner, prior to a hearing, may order the suspension prospectively of a rate filed and reimpose the previous rate if. among other considerations, the hardship insureds will suller without the suspension outweighs any hardship to the insurer. The proposal also contains reporting provisions, guidelines for voluntary residual market activities. consumer information systems to disseminate price and other relevant information for commercial and personal lines of business and penalties of up to $10,000 for each wililul violation of the law. The revamped law will in many ways help ensure proper rates, but it might prove to be a twoedged sword. In 1984, Arkansas had the second worst loss ratio for farmowners, the worst for allied lines and was second only to New York in general liability loss ratios. According to the National Association of Insurance Commissioners' 1985 profitability results for Arkansas, underwriting losses were experienced in private pas-
senger auto liability, private passenger auto physical damage, commercial auto liability, homeowners' liability, farmowners' liability, commercial multiperil, medical malpractice, other liability and workers' compensation. Alter investment gain and taxes were applied, only three of these
mately, a lack of funding. To improve rural fire protection, the Insurance Department is contemplating legislation that would seek a one time, one eighth of one percent increase in property and casualty premium taxes. The
$500,000 generated by the increase could be granted to a non-profit corporation for distribution to rural fire departments to upgrade or establish communications systems. The corporation could also provide rewards for arson information.
While not a total solution to the problem, such legislation provides a good start toward decreasing rural fire losses and places responsibility for success on the fire departments and the private sector instead of on a government agency. It should be noted that the state's fire chiefs want to add a permanent one quarter of one percent
premium tax increase to fund the investigation of suspicious fires.
Clearly, only so much may be added to the present premium taxes which are ultimately paid by Arkansas citizens. The bulk of insurance legislation concerns property and casualty matters. The measures are numerous and mostly minor in na-
ture. The Insurance Department's legislative package will address: 'Availability. Addressed in two separate fashions, the legislation relies on the insurance industry to
picious in nature. The response
propose a property and casualty market plan for coverages not readily available in the voluntary market. The plan must be submitted to and approved by the insurance commissioner. If the plan is rejected by the commissioner or later found to be inadequate, a risksharing plan developed by the commissioner may be created to require the mandatory participation of all insurers licensed or authorized to do business in Arkansas. Although committed to the concept of a free, competitive market. the Insurance Department will not hesitate to compel a mandatory program if the voluntary market cannot respond to a critical area of need. It should be noted that a mandatory risk-sharing plan, like a guaranty fund assessment. could have an adverse im-
time in many rural areas is woe-
pact on state revenues in the form
A provision in Section 7 of the proposal requires 60 days written 121Arkansas Lawyernanuary 1987
fully inadequate, due in part to a lack of communications and, ulti-
of credits for premium taxes owed. Arkansas consumers will support
Noncompetitive markets are rec-
lines of insurance showed posi-
tive results. Clearly, much must be done to improve the overall prospects for affordable and stable insurance rates.
ognized and defined under the proposal and specific require-
While liability rates merit much attention, the plight of our rural
ments are set out for rate filings in
homeowners and farmowners is to
these areas. If rates do not follow the statutory guidelines for these
many individuals deserving of the most relief. There's no reason to doubt the property companies' estimate that more than 30 percent of
noncompetitive areas, the insur-
ance commissioner shall order the rates discontinued and may reimpose the previous rate in effect in
Arkansas fire losses are sus-
this bilL as well as some agents and brokers. Licensed property and casualty insurers will not support it and may oppose its passage. "Guidelines for cancellation of
immunity for volunteer firefighters will most likely be proposed, as well as protection for directors and ollicers of non-profit corporations. "Life and Health Guaranty Fund. A Life and Health Guaranty Fund will be proposed again this session. Similar to the Property and Casualty Guaranty Fund which has paid out almost $9 million in 18 months, a Life and Health Fund would provide a safety net to Ar-
be "any related, similar, or common business. trade. product. services. premises. or operations." These new "insurance com-
any controversy since they are
panies" will be required to notify a state of their intentions to conduct business in that state and file a yearly financial statement. Given the lessons that insurance regulators have learned in the not too distant past about the consequences of inadequate pricing, poor management and lack of regulation, it is not hard to imagine that this amendment could provide more than enough rope to hang an array of "groups. "One other fact must be noted and that is the lack of a state guarantee fund to make good the promise of indemnity if a risk retention group becomes insolvent. All things considered, the proposals of the Arkansas Insurance Department will have positive
insurance commissioner, after a
"housecleaning" measures. How-
ramifications for the state's insur-
hearing, to promulgate rules and regulations. The other proposal sets out in statutory form the mini-
ever, a separate amendment has
ance consumer. Notice and accountability to the consumer, as well as to the Insurance Department, are reasonable and well thought through. While the work required of the Insurance Department will greatly increase, market conditions, an increased budget and automation should help accomplish our stated goal of stable and allordable insurance rates for our citizens. D
commercial insurance coverages. If an insurer has been on a risk 60
days, it may not cancel the policy except for nonpayment of premium (in which case 10 days notice is required prior to cancellations); fraud or a material misrepresentation of a risk that would have caused the insurer to decline coverage; a material change in the exposure or hazard of an insured; and failure to meet the requirements of applicable health and safety codes. Twenty days notice of cancellation would be required with the exception of nonpayment of premium.
-Minimum standards for com-
mercial property and casualty policies. One proposal allows the
mums required. The insurance in-
dustry will certainly object to statutory minimums, citing in-
creased costs, lack of flexibility and insured flight to the surplus market. Both forms have appeal and a combination of the two will most likely be enacted. 路Specific criminal provision for material misrepresentations in the sale or replacement of medicare
Commissioners and immunity for providing information on fraudulent insurance acts. Some form of
supplement policies. The level of controL as well as enhanced remedial measures, will be sought for bail bondsmen and insurance agents. "Self-insurance programs for the state automobile fleet. state properties and fidelity bonds required of state, municipal and county officials. The Insurance Department has been instructed by members of the Arkansas Legislature to establish such programs. The department is confident that the state fleet and the fidelity bond programs can be underwritten at a
substantial savings to Arkansas taxpayers. The state property program would be a mammoth project that might need several years to be established. 路Sale of insurance agencies. unauthorized insurers. amusement
rides. confidentiality of certain data and reports generated by the National Association of Insurance
路Premium tax on domestic life
and health companies. Such a tax will likely be enacted but. as yet, the form of the legislation has not taken shape. . Minor modifications to the
Property and Casualty Guaranty Fund Act. These should not cause
been drafted to exclude surety and financial guarantee coverages from the fund. While it is not expected this proposal will be enacted, attention should be drawn to the fact that these types of "insurance" are unique and have
had an adverse impact on the guaranty fund and the state's general revenues. The potential for further losses is enormous.
"A bill which prohibits the inclusion of punitive damages within policy limits. It is wrong to allow a
defendant to avoid the quasi criminal punishment that punitive damages envision, although one must respect the concern of the insurance industry and defense bar that important leverage may be given to a plaintiff's negotiation posture. One recent development on lhe federal level is of great importance to Arkansas. On October 27, 1986, President Reagan signed into law an amendment to the Product liability Risk Retention Act of 1981 which broadened the act's scope to include all liability, with the exception of personal liability and workers' compensation.
Now, a liability carrier will need only to be licensed in one state to provide group liability coverage to persons nationwide. The "group" is restricted to members whose
business or activities are similar in respect to the liability exposure they share in common which may
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January 1987/Arkansas Lawyer/13
DISCIPLINARY ACTIONS August to October The Arkansas Supreme Court Committee on Professional Conduct from August to October 1986, issued seven letters of reprimand and three letters of warning. The
sentenced to three years in prison. The committee accepted his surrender of license on September 22, 1986.
Committee voted "no action
warranted" on 14 formal complain ts and 88 informal complaints. It accepted three surrenders of license. The Committee voted on September 13 to ask the state Attorney General's Office to notify Harry E. Claiborne, the impeached federal judge and Arkansas native. to surrender his
license in 30 days or face a disbarment suit in Pulaski Circuit Court. Claiborne did not reply to the request by the deadline.
TERRY LYNN FOREMAN Surrender of License Terry Lynn Foreman, of West Fork, Arkansas, and Tallahassee. Florida, voluntarily surrendered his license to the Committee due to violation of Rule 8.4(b) of the Model Rules of Professional Conduct concerning performance of a criminal act. Foreman was found guilty on
August 5, 1983, of possession with intent to distribute marijuana and
JOHN MATTHEWS Surrender of License John Matthews, of Little Rock, voluntarily surrendered his license to the Committee due to violation of Rules 1.1, 1.2, 1.4, 1.5, 1. 15 and 8.4 of the Model Rules of Professional Conduct concerning competence, scope of representation. communication. fees, safe-
keeping of property and misconduct. Matthews surrendered his license rather than contest several allegations that he didn't properly complete work he was engaged to perform. One allegation was that he received nearly $100,000 in checks for distribution to creditors in the Fagan Co. bankruptcy, but that he exchanged the checks for cashier's checks and cashed them. The committee accepted his surrender of license on September 22, 1986.
conspiracy to distribute marijuana
by the United States District Court for the District of New Mexico. His conviction was upheld on August 26, 1985, by the U.S. Court of Appeals for the Tenth Circuit. The committee accepted his surrender of license on September 22, 1986.
DAVID S. HERDLINGER
JOSEPH BUFFALO Letter of Reprimand Joseph Buffalo, of Little Rock, was issued a letter of reprimand in
October for violation of Rules 1.1, 1.3, 1.4 and 8.4 of the Model Rules of Professional Conduct concerning competence, diligence, fees and misconduct. Buffalo had been
Surrender of License David S. Herdlinger, of Springdale, voluntarily surrendered his
hired to represent two clients in a
license to the Committee due to
case. The clients learned from an article in a statewide newspaper
violation of Rule 8.4 concerning misconduct. Herdlinger pleaded guilty in August to a charge of mail fraud after admitting to a threeyear scheme in which he, as Springdale city attorney, solicited an estimated $10,000 in bribes from DWI defendants in Springdale Municipal Court. Herdlinger was 14/Arkansas Lawyernanuary 1987
federal lawsuit but did not keep them advised of the status of their that the lawsuit was dismissed and alleged that without their knowledge Buffalo failed to respond to court-ordered interrogatories. Buffalo assessed costs, fees and sanctions for failing to comply with court orders on the clients.
JEPTHA EVANS Letter of Reprimand Jeptha Evans, of Booneville, was issued a letter of reprimand in September for violations of Rule 1.8 of the Model Rules of Professional Conduct concerning conflict of interest. Evans lent $6,000 to a client while handling the client's lawsuit over a traffic accident.
EUGENE FITZHUGH Letter of Reprimand Eugene Fitzhugh, of Little Rock. was issued a letter of reprimand in October for violation of Rules 1.4 and 8.4 of the Model Rules of Professional Conduct concerning communication and misconduct.
Fitzhugh told a client his lawsuit had been filed. The clien t later learned from the court clerk that the lawsuit had not been filed and wrote Fitzhugh asking for his case files. The client received no response.
CHARLES HONEY Letter of Reprimand Charles Honey, of Prescott, was issued a letter of reprimand in September for violation of Rules 3.3 and 8.4 of the Model Rules of Professional Conduct concerning candor toward the tribunal and misconduct. Judge Robert Fussell. U.S. bankrupcy judge for the Eastern and Western Districts of Arkansas, alleged that in representing debtors in a bankruptcy, Honey had received legal fees and costs that were not authorized by the court. Judge Fussell said Honey had made repeated misrepresentations to
the court when asked about the fees.
BRIAN MUELLER Letter of Reprimand Brian Mueller, of Booneville, was issued a letter of reprimand in
September for violation of Rule 8.4 of the Model Rules of Professional
Conduct concerning misconduct. Ronald Naramore, a Hot Springs attorney, had obtained ajudgment against Mueller's client. In the process of executing on some property belonging to the client. Mueller told Naramore that he'd filed a bankruptcy petition on the client's behalf. Naramore stopped the execution and later learned that bankruptcy had not been filed.
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WILLIAM A, MURPHY Letter of Reprimand William A. Murphy, of Sheridan, was issued a letter of reprimand in October for violation of Rules 1. 4 and 8.4 of the Model Rules of Professional Conduct concerning communication and misconduct. Murphy borrowed $1000 from the estate of his clients' parents. When confronted about repayment. Murphy told the clients that he considered the loan to be a legal fee. The clients maintained that he had not done any legal work for them or the estate.
MICHAEL SALAMO Letter of Reprimand Michael Salamo, of Fayetteville, was issued a letter of reprimand in October due to a Per Curiam Order on January 29, 1986, by the Arkansas Supreme Court. The Court stated in the order that a brief was originally due to be filed on behalf of Salamo's client on July 13, 1985. At Salamo's request, the Court extended the time for filing to October 10, 1985. The Supreme Court clerk was advised by Salamo on October 25, 1985, that the brief had been completed and would be immediately filed. The Court had not received the brief by the date of the order. D
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"Nobody can fill his role on the Court. I have the highest respect for his integrity. He makes every decision with complete intellectual honesty," says Justice Robert Dudley.
GEORGE ROSE SMITH Knowledgeable, emphatic, to the point and somewhat intimidating By Robert L. Brown arty last October when the weather was unseasonably warm, Judge George Rose Smith led a visitor down a winding concrete walkway to an iron spiral staircase in the woods behind his house at No, 2 Cantrell Road in LillIe Rock. Acorns rolled and cracked beneath their feet, making negotiation on both the walkway and staircase somewhat hazardous. The two men ascended the staircase as Judge Smith explained that he had acquired the structure from the state where it had served for years as the primary access to the upper stacks of the old Supreme Court Library in the State Capitol. "They were going to throw it away," the judge observed incredulously. At the top of the staircase was a wood platform with railings and seating and a light, all of which the judge had built. "[ use this sometimes to read briefs," he said in his taciturn manner. He added that the elevated perch was quiet and cool. It was also isolated and elevated - almost like a pulpit. Asked about animal life in his woods like possum, raccoon and fox, he admitted to having possum and raccoon in abundance, but not fox. "We haven't seen fox in awhile. They like to live near water, you know." The reply was pure George Rose Smith - knowledgeable, emphatic, to the point and somewhat intimidating. His certainty convinces you that he has studied the subject and knows more about the wildlife habitat of fox than you.
And he probably does. On January 1. 1987, Judge Smith will retire from the Arkansas Supreme Court after 38 years of continuous service. His term has
been the longest of any judge in the history of the Court. In 1949 when he first assumed his seat, volume 214 of the Arkansas Reports was published. We are now in volume 290. That means Smith has participated in more than a quarter of the opinions
written during the Supreme Court's ISO-year history. None of the other judges who serve on the Court today had graduated from law school when Smith won his first election. The legacy of this man cannot be measured in mere numbers. however. It is not an overstatement, for
example, to say Smith has been the architect, chief implementor and overseer of the system by which the Supreme Court assigns
January 1987/Arkansas Lawyerll7
he years have polished and enhanced the gift of scholarship he had the day he arrived. No one has pulled us out of the briar patch more than George Rose Smith." Justice Steele Hays
and decides its cases. His influence in that regard reaches beyond the state. He is recognized nationally as an authority on the appellate decision process and has written law review articles on
the subject and lectured for years at the American Academy of Judicial Education in Boulder, Colorado. When describing the Supreme Court's system and Smith's influence, Court Clerk Dona Williams says: "All that's him." But it is the judge's role as a problem solver that has been equally important to Williams. "He has a tremendous mechanical mind," she goes on. "He can see a problem and work on a solution and then come up with, as far as I can tell, the best solution and the simplest way." Williams could be referencing the various checks Smith has put into place to assure punctual, clear and concise
judicial opinions. Or she could be alluding to the judge's zeal in tackling even the smallest problem. On one occasion he personally drilled holes in the judicial conference table under each judge's place to hold their pens and pencils. IS/Arkansas Lawyer/January 1987
But the mark George Rose Smith leaves on the Court this January will be more intangible and of greater significance than the mechanics of an appellate system, as important as that is. For when Judge Smith's name is mentioned, invariably it is associated with his devotion to the dignity and integrity of the Supreme Court as an institution and to its traditions. His colleague, Judge Darrell Hickman, says Smith has led in promoting the image of a Supreme Court that is above reproach. Good friend and former Pulaski County Chancery Judge Bruce Bullion puts it this way: "George Rose Smith is highly moral and ethical in every inch of his body and his faithfulness and loyalty to the office he holds are total." Smith's example runs in other areas too. For years
he has been regarded by his peers as the hardest worker on the Court. He writes more opinions (staUsti路
cian that he is, at the end of each year he compiles information on the number of opinions each judge has written and the average page length of each judge's opinions), and is credited with studying all cases before the Court with the
same intensity whether they are assigned to him or not. The help and incentive he has given to the other judges on their cases has been immeasurable. "We rely on him," says Judge Steele Hays. "It's kind of scary thinking of him not being here." Though he has clearly evolved as a legend in Arkansas' legal and judicial circles, his early professionallife did not presage a career of appellate significance. Judge Smith was born in Little Rock in 1911 and was one of five children. His father was Hay Watson Smith from North Carolina, a stern, intellectual and sometimes controversial minister (he was once
charged with heresy for supporting Darwinism) at Second Presbyterian Church. His mother was Jessie Rose Smith, the daughter of U. M. Rose, who was a legend in Arkansas in his own right and among other things founded the Rose Law Firm. From the beginning. two career choices were
open to him. His father and grandfather were clergymen and the Smith family boasted educators as well. His uncle, Henry Louis Smith, served as president at both
Davidson College and Washington & Lee University. The Rose family on the other hand had spawned a number of attorneys. Smith's penchant almost from the beginning was toward problem solving and a discipline that suggested the law.
where he would remain off and on for 15 years. At that time his uncle, George B, Rose, was the senior partner of the firm, Smith gravitated toward an appellate practice and legal research. "I never really enjoyed trying lawsuits," he says today, "It made me nervous. I never got a
is boyhood included a home at Fourth and Gaines Streets in downtown Little Rock and a world of ice wagons,
summers at Mt. Nebo in Yell County, His Little Rock education began at Peabody Grammar School and ended at Little Rock High School, where he graduated first in his class. From there he attended college and one year of law school at Washington & Lee University which he found to be "very formal" and snobbish. He transferred to Fayetteville which was more to his liking and finished law school at the University of Arkansas in 1933 as the honor graduate. He had clerked at the Rose Law Firm for two summers during law school and joined the firm as
kick out of it." Nonetheless, he soon became one of the best researchers at the firm, finding cases no one else could find. He was "highly efficient," according to those who worked with him, and quickly became "absolutely indispensable" to the partners in the firm. During this period he taught constitutional law and conflicts at the night law school. In 1938 he married Peg Newton of Little Rock and a daughter, Laurie Hempstead, was born to the couple some years later. World War II interrupted a rather comfortable life and he served for three and onehalf years as second lieutenant and major in the Army fighting hard, as he puts it, in Georgia and Florida. Alter the war he returned to the Rose Firm and set about writing a
an associate upon graduation
law review article which. un-
carnivals. street cars and
beknownst to him, would determine his destiny. The article, entitled "The Current Opinions of the Supreme Court of Arkansas - A Study in Craftsmanship, "\ was little more than a discussion of six standards of judicial writing espoused by John H. Wigmore in his treatise on evidence. But it also took the Supreme Court members to task for their lapses in legal research and opinion wri ting and was "a big hit with lawyers," he says. That article more than anything else made his name recognizable among members of the bar throughout the state and when Supreme Court Judge Edgar L. McHaney died in 1948 two of Smith's close friends, Frank Editor's Note:
Robert L. Brown is a member of the law firm of Robert L. Brown, P.A. He is a former administrative assistant to Congressman Jim Guy Tucker, former legislative assistant to Senator Dale Bumpers and former legal aide to Bumpers
when he was governor. Brown is a former deputy prosecuting attorney in the 6th Judicial District. Ianuary 1987/Arkansas Lawyerll9
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Newell and Baucum Fulkerson, implored him to stand for election. Smith now says: "The many people who urged me to run amounted to two,"
Whatever the case, he ran against Arthur Adams, a Jonesboro attorney who was secretary of the Democratic Central Committee, andJ. Fred Jones of Mt.lda and Little Rock. Running on the slogan of "Ask Your Lawyer," he bought a Chevrolet and with his wife, Peg ("the real politician in the family"). visited every county in the state. It was a time of tent rallies, pie suppers and door prizes. At his first political rally in Pine Bluff, the judge forgot to take off his Panama hat when he approached the microphone to make his speech. A voice bellowed from the crowd: "Take your hat off." A shy man, the judge made it through the speech and maintains that he subsequently evolved into an accomplished public speaker. But Smith says he never liked campaigning. "There are things I'd rather be doing," he adds tersely. And you believe him. Fortunately for him he only had to run twice in his career. The second
time was in 1962 against a formidable opponent, former State Attorney General Tom Gentry. Gentry waged a hard-hitting campaign and at one point was ahead of Smith in the polls. Smith went on the attack and ran newspaper ads accusing Gentry of being controlled by organized labor. For a man who eschewed politics as somewhat distasteful. Smith proved sufficiently adept. For a second time the lawyers around the state were an invaluable asset. Judge Edwin Dunaway (who served with Smith on the Court for 14 months in 1949 and 1950) says in 1962 Smith ran the largest endorsement ad by lawyers ever. He won convincingly and never was saddled with political opposition again.
Not surprisingly, after that Smith became an outspoken supporter of the Missouri plan for the selection of appellate judges. Since he had been an accomplished researcher and brief writer with a distinct literary style during his days in law practice, Smith had little difficulty adjusting to work on the Supreme Court in 1949,
Almost from the beginning he began his crusade to reform the decision system. When he first assumed his seat, each judge would read his opinions out loud at conference with the other judges hearing and reacting to those opinions for the first time, Smith began the practice of distributing copies of his opinions to his colleagues prior to conference, By the end of his first year, the other members of the Court, without saying a word about it, were following suit. his soon led to Smith's famous editorial practice of circling his colleagues' misspelled words and pointing out their grammatical errors. Not surprisingly, this did not sit well with some judges like former journalist and Chief Justice Griffin Smith. Others, however, welcomed his corrections and the practice still continues. (The story even goes that Smith on occasion would not provide this service to judges with whom he felt no affinity like lim Johnson.) Other reforms followed. He worked to perfect the Supreme Court Rules which were amended in 1954. Of particular note is the re-
Tributes From The Court And Clerk
"He is always trying to search out what's right, just and fair
under the law regardless of the parties involved or the nature of
the litigation. He admits when something is not within his grasp and likes to hear other people's opinions."
"He has a conception of political power and where it should rest. He never loses sight of the fact that the law needs consistency and sense. He is not afraid to change the law when it's wrong."
duction in time for oral argument
which has been shortened from one hour to 30 minutes and now to 20 minutes per side. Long considered an opponent of oral arguments, Smith now says with a twinkle in his eye that he really does not mind them. In the next breath he suggests that they are often a waste of time and sometimes young attorneys request them purely for the experience. Over the years, Smith has written several law review articles but two are of particular note and have become required reading for appellate judges in every state. The first is "A Primer of Opinion Writing, For Four New Judges,'" where Smith discusses the influences on his own opinion writing and
"He has been a tremendous asset to the Court. His knowledge is useful to the other members. He will be greatly missed leaving a relatively young and inexperi路 enced crew here."
"His assets are his thoroughness, knowledge. curiosity, creative spirit and dedication to get to the bottom of things. We love the guy because he saves us from ourselves. We will continue in his image."
passes a few pearls of experience
on to his newly elected peers, His influences are all there, including Karl N, Llewellyn, Cardozo, Judge Frank Smith of the Arkansas Supreme Court, Webster's New International Dictionary (the 2nd edition, not the 3rd) and the Uniform System of Citations.
"He is one of the most sensible people I've ever known. There is such a thing as knowledge from book learning. Then there is wis路 dom and horse sense. Judge Smith has all three. 1don't know anyone I respect more."
January 1987/Arkansas Lawyer/21
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221Arkansas Lawyer/January 1987
Of even more significance. nationally at least, has been "The Appellate Decisional Conference. "3 [n preparation for this article, Smith polled the appellate courts of the 50 states on their procedures for the judicial conference and assignment of cases. [n doing so, he held Arkansas' methods up for comparison and found that the system he had instituted compared very favorably indeed. Smith's system stresses expedition and weekly assignments with each judge having primary responsibility for one case. A criticism of the system has been its potential for single judge opinions. Smith's rebuttal to such a charge is easy to anticipate. 11 the judges do their work and read all the cases including their own, the danger is prevented. Judge Smith's celebrated reserve has been the subject of much comment and a few satirical jabs over the years. Close friends admit Smith often does not participate aggressively in conversation and is not the most exuberant of people. Having said that, they staunchly maintain he has an excellent sense of humor, which is wry and borders on the ridiculous. A case in point was the judge's annual hike with a group of friends from Mt. Nebo to Spring Mountain for the purpose of placing one sequentially lettered beer can on a Iwo by four board. After the placement, the board was hidden and marked by an aluminum marker which could be seen from Mt. Nebobut which was almost impossible to find on Spring Mountain. Smith was the creator, organizer and leader of the trek and always took his Webster's unabridged dictionary to Mt. Nebo (but not on the hike) to resolve disputes. Over 26 years Smith and his team of Nebo people completed the alphabet and the fey ritual has now been discontinued. There is also the judge's taming of raccoons in the woods behind his house lured to submission by Colonial Bakery thrift sbop bread. Photographs of these raccoons adorn his Christmas cards which are eagerly awaited each year. They can be seen performing a variety of tasks like trimming the Christmas tree or tying Christmas presents or posing in the middle of
a Christmas wreath. And there are his crossword puzzles which he has published in the New York Times and his riddles, influenced no doubt by his love for Lewis Carroll. His golf ball collection, which he gathered in the days when he jogged numbers well over 300, rests in racks which he made and which hang on his living room wall, He has other collections, like the license plates for his 1948 Chevrolet dubbed "Old 97" which he drove for 2S years, An insatiable curiosity has led him into other interests, like astronomy, In the '70's he was one of the few people in the area who knew how to set a sundial and was called upon to do it for the Arkansas School for the Blind. He is equally proficient with his hands. An accomplished brick mason, carpenter and electrician, he has built parts of his own home, including a brick wall and walkway, and has built rooms for friends like Judge Bullion. Other hobbies include baking bread, spin fishing and raising tomatoes. His home includes a well supplied basement workshop, a rain gauge apparatus from his roof to his bathroom and an old locomotive bell in the woods which can be activated electrically from inside the home. While not yet compared to da Vinci, he has often been described as a Renaissance man.
There is a boyish aspect to all of this that is well nigh irresistible and certainly is at odds with any suggestion of a dreary personality. To be sure, the judge can be intolerant of people who have less mental acumen. And he has a temper. On one occasion he is said to have finished an argument with Judge Hickman in conference by taking a case the judge had cited and stating: "Here's what I think of your case," as he simultaneously deposited it in a wastepaper basket. Undoubtedly, his terse comment: "That's just common sense," has brought many arguments to a conclusion. But by and large his colleagues give him high marks for open-mindedness and for his ability to admit when he is wrong.
There is also the celebrated incident when he sued a woman for $4 because she had run out of gas and used his gasoline can but had not
returned it. He settled the case out of court for the $4 plus costs and said at the time: "I just got mad at her and sued her and that's all there is to it." The most emotional case that Judge Smith has encountered during his tenure is State v. Epperson' which called into question Arkansas' anti路evolution statute.
The Court in a per curiam decision sustained the statute and held it constitutional. Ultimately. the United States Supreme Court reversed the Court and struck down the statute as violative of the First Amendment. The two sentence per curiam opinion clearly evades the constitutional issue.
but Smith defends the opinion, which he joined in, and says the Court was bitterly divided over the issue and the compromise effort "saved the Court as an institution." For Smith survival and integrity of the institution have always been the paramount consideration. eated across from the judge at the chess table where he writes his opinions on Monday afternoons and nights, the question was asked what he considered to be his major opinions over the years. He begins his answer in the slow punctuated voice which is his trademark and which at times trails into a whine.
He describes how in the past year he has reviewed about 2,000 opinions he has written in his 38 years of service and isolated 40 as "more or less outstanding. It works out to about one a year," he adds. Of those 40 he has whittled the list down to six which fall more appropriately in the landmark category. Surprisingly, a usury decision is not among them. Leaning on the table and slumping his shoulders, the judge begins his description of those cases while his pale blue eyes stare steadily at the visitor. From time to time he pats the table with the flat of his hand for emphasis. At other times he rests his hands on the table as he talks. The fingers are tapered and almost manicured, belying the manual labor of the years. At the end he looks out the picture window where the cardinals are feeding at
The Wit and Wisdom Of George Rose Smith 'On helping Chief Justice Webb Hubbell don his robe at his swearing in: "The robe may not he a good lit be路 cause Little Rock Tent and Awning was not able to make a lObe in such a short time."
'To a verbose Judge Darrell Hickman: "You have a right to remain silent,"
路When an opinion was submitted
late by a colleague on the Court: "Better never than late."
'To Justice John Purtle: "Are you going to commit another
*In answer to a clerk who began a joke with the question: "Do you know the difference between a woman lawyer and a water closet?" "Why, yes. Don't you?" 路Upon reading an advertisement for cordless screwdrivers: "All of my screwdrivers are cordless. "
'On how he amassed his golf ball collection: "When they slop rolling, I Iigure they're lost."
'To a photographer about to take his photograph: "You going to toke the back 01 my head? That's my best view."
'On a newly published treatise about the Civil War: "It's an unbiased history of the Civil War from the southern point of view."
'On his Rose heritage: "No one knows with certainty why
Little Rock was named the City of Roses."
'To a newly elected Judge on the Court: "New judges dissent."
'Proposed methods of settling judicial disputes at conference in
ascending order of desirability: "(a) dueling, (b) listiculls,
flouncing from the room, (d) profanity, (e) standing oration (shouting optional). (I) calm and detached reasoning."
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his amply supplied bird feeder. Wags in the legal profession might consider adding two more decisions to the judge's list. Both are April Fool jokes. Poisson v. d' Avril' gives full force and effect to an Omnibus Repealer of the Arkansas General Assembly which purported to repeal "all laws and parts of laws." The decision held though that the repealer only applied to statutory law and not to common law which was left "unmonkeyed with." A more recent bit of whimsey is Catt v. State' which upholds inconsistent jury verdicts for the conviction of twin brothers for fraud and cocaine. The opinion winds through a factual maze and is replete with references to literature and children's stories. (West Publishing Co. did not get the joke and published the decision as valid.) Both decisions attest to a wellhoned, sophisticated sense of humor more identified with prior centuries perhaps than with our own. So what is left to say? George Rose Smith has given tirelessly and selflessly of himself for 38
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years. While not a judicial activist, he has worked diligently to prevent abuses of power. whether political or otherwise, where he saw them and to protect the sanctity and consistency of the law where possible. He has never been one to take off on flights of fantasy and leave practicality behind. Rather. he has solved disputes in a dispassionate, rational manner
using God-given talents which over the years have inspired more and more respect. In 171t. the English poet. Alexander Pope, asked the following questions in his "Essay on Criticism:" "But where's the man, who counsel
can bestow. Still pleased to teach. and yet nol
proud to know? Unbiased. or by favour, or by spite; Not dully prepossessed. nor blindly right; Though learned, well-bred; and though well-bred. sincere; Modestly bold. and humanly severe: Who to a friend his faults can freely show, And gladly praise the merit of a foe? Blest with a taste exact. yet un· confined; A knowledge both of books and human kind; Generous converse; a soul exempt from pride; And love to praise. with reason on his side?"' For the Arkansas bar the answer could well be George Rose Smith. 0
FOOTNOTES , , , •
I Ark. L. Rev. 89 It947) 21 Ark. L. Rev. 197119671 28 Ark. L. Rev. 425 119751 242 Ark. 922, 416 S.W.2d 322 (1967)
~ Re·printed in 22 Ark. L. Rev. 741 (1971)
Reasor-Hill Corp. v. Harrison.' Decided before the enactment of Arkansas' Long-Arm Act. a Missouri landowner was allowed to file an action in Arkansas for damage to his land caused by an Arkansas manufacturer. "If Barton (the landowner) has been wronged he should have a remedy; to deny it is to encourage skepticism as to the ability of the courts to do their duty." Alford v. State.' Testimony of a previous attempted rape by the defendant against the victim was excluded as prejudicial and the case was remanded for a new trial. "Thus our cases very plainly support the common sense conclusion that proof of other offenses is competent when it actually sheds light on the defendant's intent; otherwise it must be excluded ... The issue goes to the very heart of fairness and justice in criminal trials; we cannot conscientiously sustain a verdict that may have been influenced by such prejudicial testimony." Moose v. Gregory.' Supreme Court Rule 29 does not provide an automatic basis for Supreme Court review of decisions rendered by the Court of Appeals. "Finally, we should state. as clearly and as unmistakably as we can. that the mere possibility that the Court of Appeals may have been wrong in a given case is not a basis for review by this Court." Rector v. Slale.' Death-qualification of the jury in capital cases is a constitutional procedure. "Human nature is not unconstitutional. From the earliest days of the common law, which ultimately created the jury system now embedded in our constitutions, the human urge to redress manifest wrongs played its part in the development of the criminal law.... Our second reason for disagreeement with the Grigsby conclusion is a practical one: a jury system that has served its purpose admirably throughout the nation's history ought not to be twisted out of shape for the benefit of those persons least entitled to special favors." Day v. Day.' Vested pensions and annuities are marital property and subject to equal division upon divorce of the parties. "We now realize that we have inadvertently failed to recognize the new concept of 'marital property.' created by Act 705 of 1979. as amended. That statute defines marital property as all property acquired by either spouse subsequent to the marriage, with exceptions not important here." Hal Springs v. Creviston. 6 Invalidated a bond issue supported by the City of Hot Springs and secured by a pledge of revenues from a hotel and restaurant gross receipts tax for lack of an election. "We believe that the only proper and permanent course is for us simply to give effect to the plain language of the Constitution. It states that no city or county shall ever issue interest-bearing evidences of indebtedness without the consent of the electors. That mandate is binding." FOOTNOTES , 220 Ark. 521. 249 S.W.2d 994 119521 , 223 Ark. 330. 266 S.W.2d 804 119541 , 267 Ark. 86. 590 S. W.2d 662 (1979)
• 280 Ark. 385. 659 S. W.2d 168119831 , 281 Ark. 261. 663 S. W.2d 719(984) • 288 Ark. 286. _ _ S.W.2d _ _. (1986)
• 285 Ark. 334. 691 S. W.2d 120 (1985)
January 1987/Arkansas Lawyer/2S
president of the Jonesboro Kiwanis Club and had served as lieutenant governor of the Mo-Ark Kiwanis District. He was a member of Jonesboro Elks Lodge No. 498, Cardinal Masonic Lodge No. 677 at Weiner and the Jonesboro YMCA. He was a former member of the YMCA board of directors. He was a member of the Walnut Street Baptist Church. Survivors are his wife, Julia Kieffer, of Jonesboro; his mother, Matilda Kieffer, of Weiner; and two brothers, Seth Kieffer, of Weiner, and Melvin Kieffer, of Waldenburg.
William M, Clark
Clark was an avid supporter of athletic programs at the University of Arkansas, Fayetteville and the University of Central Arkansas. He was a member of the UCA Purple Circle. Survivors are his wife. Marisa
Clark, of Conway; three sons, John J. Clark, James Clark and David Clark, all of Conway; and a daughter, Carmen Clark, of Fayetteville.
Ruby E. Hurley Ruby E. Hurley, aged 53, of North Little Rock, died Friday, September 26, 1986. Hurley had been active in Democratic Party activities and twice ran unsuccessfully for a chancery court judgeship. In 1966, she was a candidate for the then-new Third Division Chancery Court judgeship in the First Chancery District and narrowly lost the race. In 1978, she ran for the Third Division chancellor's po-
Marvin 1. Kieffer, aged 63, of Jonesboro, died Tuesday, October 28, 1986. Kieffer was elected on October 2, 1986, as secretary-treasurer of the
William M. Clark, aged 56, of Conway, died Wednesday, October 1, 1986. A Conway native, Clark was born November 15, 1929, a SOn of the late Mr. and Mrs. William J. Clark. Clark received a bachelor of science degree in business in 1950 from the University of Central Arkansas and graduated in 1958 from
Arkansas Institute for Continuing
Tulane University law school.
Legal Education board of directors. He had served as a member of the board since 1977.
Clark returned to Conway after receiving his law degree and joined his father and uncle in the law firm of Clark. Clark and Clark. The firm was founded by his grandfather, J. C. Clark. He most recently practiced with the Clark and Adkisson law firm. In 1983, Clark was appointed by Governor Bill Clinton as one of seven special judges to preside in an Arkansas Supreme Court case which the state's seven Supreme Court justices had disqualified themselves from hearing. The
in the runoff. Hurley served as special chancellor in the Sixth Circuit in the absence of Pulaski County Judge Judith Rogers and, in the early 1960's, as temporary master-inchancery, trying uncontested
case concerned state income tax
Democrats of Arkansas in the
Marvin 1. Kieffer
He was a native of Weiner. a
graduate of the University of Arkansas School of Law, Fayetteville and a veteran of World War II. Kieffer served as examining agent for the fnternal Revenue Office from the time he was admitted to the Arkansas bar in 1951 until 1957, when he entered private practice. Kieffer was a 35-year member of the Arkansas Bar Association, was a member and past president of the Craighead County Bar Association and was a fellow in the Arkansas Bar Foundation. He served 11 years on the Arkansas Bar Association's Auditing Committee and served on its Agricultural Law and fnterest on Lawyers' Trust Accounts Committees and the Executive Council. He was a former
chair of the Foundation. Kieffer was a member and past 26/Arkansas Lawyer/January 1987
sition as the front-runner, but lost
Although she primarily handled domestic litigation, Sherwood Municipal Judge Milas Hale appointed her in 1979 as Sherwood's first public defender, a part-time position she held for four years. Hurley was active in the Young
exemptions on public retirement
1960's. She was the Young
benefits. He was a 28-year member of the Arkansas Bar Association, a member of the Faulkner County Bar Association and Conway Development Corporation and a past president of the Conway Kiwanis Club. He was elected in 1982 to the First State Bank and Trust board of
Democrats' national committee-
person for eight years and in the 1970's became a member of the Pulaski County Democratic Committee. She also had served as secretary to the Arkansas Democratic Convention.
For a number of years, Hurley was a law partner of the late
Tommy Russell, a former aide to Governor Orval E. Faubus in the 1950's. After that she became a partner of Jack Files and Gary Eubanks and recently was the senior partner in the Hurley and Whitwell law firm. The daughter of John E. and Ruby Siegler Hurley of Little Rock, Hurley was a graduate of Mount St. Mary Academy and attended Little Rock Junior College, now the University of Arkansas at Little Rock. She received her law degree from the University of Arkansas, Fayetteville. Hurley was a 34-year member of the Arkansas Bar Association and was a member of the Pulaski County Bar Association and the Woman's City Club. She was a member of the Immaculate Conception Catholic Church. Survivors are her mother, Ruby Siegler Hurley, of North Little Rock; a brother, James E. Hurley, of Oklahoma City, Okla.; and two sisters, Patricia H. James, of Mayflower, and Mrs. John Ripley, of Philadelphia, Pa.
kansas Gazette reported. Kemp moved with his family to Little Rock in the late 1930's and wen t to work for Arkansas Power and Light Company. In 1941, he was drafted into the Air Force and spent most of his military career at Atlanta as an aircraft dispatcher. Kemp attended Little Rock Junior College, which became the University of Arkansas at Little Rock, and received a law degree in 1951 from the University of Arkansas, Fayetteville. Before becoming city attorney, he was a law clerk for Arkansas Supreme Court Associate Justice George Rose Smith, was deputy city attorney for Little Rock and was attorney for the state Labor Department. He began his private law practice in 1953. Kemp's position as city attorney kept him in the center of the discussion of most major issues fac-
ing the city. He argued a civil rights case brought against the city before the United States Supreme Court, with Thurgood Marshall, now on the Court, as the opposing attorney; he gave advice to the Civil Service Commission when questions arose about how
Joseph C. Kemp Joseph C. Kemp, aged 66, of Little Rock, died Thursday, October 23, 1986, on his 66th birthday. Kemp was Little Rock city attorney for 21 years, beginning in 1957, shortly after the city manager form of government was installed at Little Rock to replace the mayorcouncil form. He held the city attorney position and maintained a private law practice until 1978, when the city Board of Directors decided it wanted a full-time city attorney without an outside practice. He continued his work in local government by serving, until recently, as attorney for the Little Rock Advertising and Promotion Commission and the Metroplan Transi t Policy Board. "He was widely known for his shock of white hair, which had grayed during his high school days at Dierks, where he was born in 1920, a son of Fraudie Joe and Leila Rose Howard Kemp," the Ar-
to hire a police chief; he represented the Airport Commission for a time and worked on development of the airport terminal building; and he directed negotiations fora bank loan that Central Arkansas Transit needed to continue operations.
Kemp served as acting city manager in 1968 and 1973. He was a 35-year member of the Arkansas Bar Association, a member of the Pulaski County and American Bar Associations, a 32ddegree Mason and a member of the Little Rock Consistory and the Shriners. He was a member of St. James United Methodist Church. Survivors are his wife, Jewell Knuckles (Judy) Kemp, of Little Rock; a son, Hal Joseph Kemp, of Little Rock; two daughters, Janan E. Kemp and Kristin Beth Hurst. both of Little Rock; a sister, Janelle Wills, of Little Rock; a brother, Russell Kemp, of Memphis; and three grandchildren.
John Mann John Mann, aged 65, of Forrest City, died Wednesday, October 15, 1986. Mann was instrumental in establishing the Eastern Arkansas Community College at Forrest City and was a World War II Navy veteran and real estate developer. He was a graduate of Hendrix College at Conway and the University of Arkansas School of Law, Fayetteville. A nali ve of Marianna, Mann moved to Forrest City in 1947. He was a past president of the St, Francis County Bar Association, the Forrest City Rotary Club and the Forrest City Chamber of Commerce.
He was a 38-year member of the Arkansas Bar Association and a member of the Forrest City First United Methodist Church. Survivors are his wife, Martha Jane McCollum Mann, of Forrest City; two daughters, Cile Brooks, of Memphis, Tenn., and Jane Mann of New York City; his mother, Louise Mann. of Marianna; a
brother, Lon Mann, of Marianna; and two grandchildren.
Frank O. Sloan Frank O. Sloan, aged 71, of Jonesboro, died Tuesday, October 14, 1986. Sloan was a World War II Navy veteran, a past member of the Jonesboro School Board, past president of the Jonesboro Rotary Club and a member of the First Presbyterian Church. A native of Jonesboro, he was the son of the late Mr. and Mrs. Horace Sloan. Sloan was a 46-year member of the Arkansas Bar Association and a member of the Craighead County and American Bar Associations. Survivors are his wife, Vertis
Sloan, of Jonesboro; a daughter, Margaret Ann Morgan, of El Dorado; a sister, Geraldine Miller of Yonkers, N.Y.; and three grandchildren. January 1987/Arkansas Lawyer/27
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Robert Lynn Whitlock Robert Lynn Whitlock, aged 40, of Prairie Grove, died Saturday, October 25, 1986. Whitlock was municipal judge at Prairie Grove and Lincoln . He was born August II. 1946, near Tuckerman, the son of Jack and Mildred Vaughn Whitlock. Whitlock was a graduate of the University of Arkansas School of Law. Fayetteville and a partner in the law firm of Everett and Whitlock. He was a 14-year member of the Arkansas Bar Association, a 32d degree Mason, a member of the Occidental Lodge 436, a Shriner and a member of the Prairie Grove Lions Club. Whitlock was a Methodist. Survivors are his wife, Karol Baggett Whitlock. of Prairie Grove; two sons, Robert Perrington Whitlock and Jeff Baggett Whitlock. of Prairie Grove; his mother, Mildred Vaughn Whitlock. of Tuckerman; his falher, Jack Whitlock, of Florida; and a sister. Janie Ellison, of Memphis, Tenn. 0
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JUDICIAL DEPARTMENT REPORT
Computers And the Courts fact, at this time, well over onehall of the circuit judges and chancellors in the state have
By R. Christopher Thomas We have all experienced the benefits, and the frustrations. of the computer age. Although the
access to a computer system for
"encroachment" of computers in
the judicial process has lagged behind other sectors. I suspect some of these benefits, and frustrations. will become increasingly evident in your judicial system. During the past year, the judicial Department has initiated an ellort to encourage the use of computers in our circuit and chancery courts. To that end, we are developing software which will enable judges to more ellectively monitor the status of their dockets. Our Systems Branch stall has been working on the development of this software. john Stewart. chief of our systems operation. along with jack Marks. systems analyst, and Pete Neathery, programmer, are writing the programs. They have sought and received assistance from judges and clerks in their ellort, As a result, the system being devised is closely attuned to the needs of Arkansas courts. Presently, the chancery court program is in use in a number of
jurisdictions in the state. Initial responses from those who are using the system are favorable. We are close to completion of a circuit court-criminal program, which will be followed by development of software for circuit court-
civil and probate court. Significantly, our department is making these various programs available to the respective courts at no cost. A number of judges have persuaded their local governments to purchase personal computers relying, in part, on the availability of our free software. Additionally.
our department was fortunate to receive a grant from the National Institute of justice in the approximate amount of $30,000. With these funds, we will acquire 13 personal computers with letterquality printers. These computers, along with the software which we are developing. will be utilized in various circuit courts throughout the state, again at no cost to the judge or county. The focus of this particular grant will be on development of a criminal court case management system. However.
the circuit judge who also handles civil cases will benefit from the program. When the program was announced in late 1985, I was less than certain of what the response of our judges might be. As it has developed. many of the circuit judges and chancellors in Arkansas are qui Ie anxious to incorporate the use of computers in the process of docket management. In
this purpose. In some instances, the court utilizes a system which is centrally located in the county or district. However. in most cases, the judge. or his case coordinator. has available a personal computer located in his or her ollice. Generally. the software which is being utilized is provided by our department. The goal of this program is to make available appropriate information whereby a judge can most ellectively control his docket. Among other things, the system will enable a judge to obtain a complete printout of all active cases in his jurisdiction; to schedule cases for trial or hearing; to automatically print notices to counsel of hearings; to ascertain the age of all active cases; and to automatically schedule for dismissal inactive cases pursuant to Rule 10. Also, the program allows for the entry of the name and address of counsel for each case. In this fashion, it is hoped that attorneys can quickly ascertain the status of all their pending cases in a given district. There remains. however, the continuing question of the extent
to which judge-control of dockets should be exercised. It is important to emphasize that this program does not presume to suggest the degree of judicial intervention in case management which is appropriate. Rather, for those circuit judges and chancellors who choose to immerse themselves in this task. this computer system merely provides a tool to assist.D January 1987/Arkansas Lawyer/29
EXECUTIVE DIRECTOR'S PAGE
The War Against Defense Lawyers By William A. Martin
"Fourteen percent had declined certain criminal cases because of potential federal harassment; 'Eighteen percent had received grand jury subpoenas concerning their clients; 'Twenty-one percent had been threatened with fee forfeiture; and. 'Twenty-six percent had been subjected to disqualification attempts.
"In all criminal prosecutions, the accused shall enjoy the right to . .. have the assistance of counsel for his defense."
Sixth Amendment. Bill of Rights, United States Constitution "No person shall be . . ,deprived of life, liberty or property, without due process of law; , , ." Fifth Amendment, Bill of Rights, United States Constitution "A lawyer shall not reveal information relating to representation of a
Closer to home, a respected, effective defense lawyer told me he no longer takes drug cases because of potential hassles. Twenty-eight years of service in the U.S. Air Force, with experience as both a prosecutor and supervisor of prosecutors. leaves me
client . .. "
with a "law and order" mind set and, perhaps even more, a "due process of law" mind set. Many
Rule 1.6, Model Rules of Professional Conduct At an American Bar Associa-
tion program last summer, defense lawyers cited numerous
examples of government attacks on lawyers in criminal and civil cases, including: 'Actions by the Justice Department to forfeit attorneys' fees paid with
money garnered from criminal conduct. particularly drug sales; .Attorneys being subpoenaed to appear before federal grand juries to pro-
vide information. including fee information, about their representation of certain clients; 路U.S. attorneys seeking to disqualify certain defense counsel; and. 'IRS requirements for reporting cash fee payments to attorneys of $10.000 or more and considerable identifying information about clients.
At the meeting, Justice Department representatives countered:
'No one should be able to keep the proceeds of criminal conduct nor be
able to buy anything including legal services with it;
'The Sixth Amendment to the U.S. Constitution does not guarantee coun-
30/Arkansas Lawyer/January 1987
sel of choice. The public defen.der system is adequate for those defendants whose assets are tied up by forfeiture actions; 'Cash reporting requirements are necessary to battle the underground economy; 'Sham payment of fees must not be allowed as a way of "laundering" money obtained through crime; 'Lawyers' offices must not be a safe place for criminals to meet and conspire; and.. . A few lawyers serve organized crime. induce a person to commit perjury and get involved in other illegal activity.
William J. Genego, professor of law at the University of Southern California, surveyed 4,000 defense lawyers for their response to actions by the Justice Department in criminal and civil cases.
Professor Genego found that of the 1.648 responding: 'Thirty percent had changed the way they practice criminal law. including altering client interview practices;
defendants deserve conviction
and prison bu t they should be found guilty only if the government can prove its case. It's the duty of military defense counsel to make the system work by providing the best possible defense consistent with the facts. the law and ethics. To make our justice system work we must permit. and, beyond that, encourage capable. independent defense counsel to aggressively represent all persons accused of crimes, including the most contemptible. If our abhorrence of drug traffic and organized crime permits the prosecutor to decide whether the defense lawyer gets paid and whether the client can safely tell his or her most terrible secrets, then the "disintegrating erosion of particular exceptions" threatens all our rights tomorrow. I cannot believe Congress intended this result. 0
YOUNG LAWYERS' UPDATE
YLS Programs UndelWay of this competition will go to Washington, D.C., in the late spring to represent Arkansas in the national mock trial competition. During the month of November, the YLS Executive Council began a recruitment campaign to enlist attorneys to participate as coaches, judges and scorekeepers in the mock trial competition. Those of you who have participated in this program in the past have indicated you enjoyed the experience and we hope that you will agree to continue your involvement with the mock
By j. Thomas Ray On October 15 to 17, 1986, the Young Lawyers' Section sponsored the annual Practice Skills Seminar for recent admittees to the Bar of Arkansas. This year's seminar marks the 26th consecutive year that the YLS has sponsored this program. As many of you know from having attended the seminar in previous years, the program is
designed to assist new lawyers and recent law school graduates in bridging the gap between law school and law practice. Greg jones and Rosalind McClanahan chaired this year's seminar and did an outstanding job of organizing the program and lining up speakers. judging from the comments made by the more than 50 attorneys who attended, the program was a great success. Next year is the bicentennial of the signing of the United States Constitution, an event of great importance to all citizens and of special significance to lawyers. Because many citizens take for
granted the rights and liberties which are guaranteed by the Constitution, next year's Bicentennial Celebration provides a unique opportunity for the legal profession to educate the public on the importance of the rights which flow from that great document. john P. Gill is chair of the Arkansas Bar Association's Bicentennial Committee charged with the responsibility of developing and coordinating programs to celebrate this historic event. One of the goals that john and his committee hope to achieve is to formulate and implement programs that cause the average citizen to recog-
Finally, Mike Crawford, chair of the YLS Law Week Committee, is working on ways to stimulate more
nize and appreciate the benefits thClt he enjoys from living in a democracy in which certain inalienable rights are recognized and protected by the Constitution. One such program that john has decided to implement is a speaker's bureau composed of lawyers who are willing to speak to business and civic clubs and organizations on the importance of
the Constitution to our way of life. john has asked the YLS to assist him in developing a list of attorneys from throughout the state who are willing to participate in the speaker's bureau. Please contact me if you are interested in becoming involved in this worthwhile project. Marcia Barnes. chair of the YLS Mock Trial Committee, currently is signing up high schools to participate in this year's statewide mock trial competition. The state winner
statewide interest among lawyers and local bar associations in no路 tional Law Week activities. For many years, certain local bar associations in the state have been very active in planning and carrying out programs during Law Week that reflect favorably on the legal profession and help to restore our profession's sometimes
tarnished public image. In view of the negative publicity that the legal profession has received in recent months, it is extremely important that we use this year's Law Week activities to bring to the public's attention the many significant but often overlooked public and civic contributions which are made by members of our profession.
I urge each of you to see that your local bar association takes part in this year's Law Week activities. The YLS has access to a wide range of how-to materials which contain ideas and instructions on implementing meaningful programs. 0 January 1987/Arkansas Lawyer/31
Portrait of a well-balanced professional liability program... The Arkansas Bar Association-sponsored Lawyers Professional Liability Insurance Program balances outstanding service with expertise very well. • The long-standing relationship of a team of experts-your Bar Association, the CNA Insurance Companies, and Rather, Beyer & Harper, the plan administrator-working together for 22 years. • The expertise of CNA-one of the nation's leading professional liability insurance organizations for more than a quarter of a century ... The Bar program offers the coverages and features that may well tip the scales in your favor. . • Your choice of occurrence or claims-made coverage • Professional and Business Liability coverage • Defense costs paid in addition to your limit of liability • Your choice of deductibles 321Arkansas Lawyer/January 1987
• Deductible waived if claim is closed without loss payment • Prior Acts and Extended Reporting Period coverages available • Automatic Advertisers Liability coverage • Premium credits available Call or write the program administrator today for all [he details of the Arkansas Bar Association-sponsored Lawyers Professional Liability Insurance Program: Arkansas Bar Association Administrator Rather, Beyer & Harper Suite 362, Prospect Building Little Rock, Arkansas 72207 (501) 664-8791 The L'lwycrs Professional and Bu~ine~l) Linbiliry Insumnce Progrilm b underwritten by Continental Casualty Company
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IN-HOUSE NEWS LAW SCHOOLS, A.I.C.L.E. AND HOUSE OF DELEGATES
UNIVERSITY OF ARKANSAS SCHOOL OF LAW,
FAYEITEVIllE By J. W. Looney Robert B. Leflar's article, "Liberty and Death: Advance Health Care Directives and the Law of Arkansas" appeared in the Arkansas Law Review. He also wrote a feature for Agricultural Law Update entitled "Supreme Court Upholds FDA Action Levels." He was a speaker at the American Public Health Association annual meeting in
Las Vegas. Jake Looney spoke at Lonoke on "Legal Issues of Farm Debt;" to the Washington County Bar Association on "Arkansas Statute Revision;" at Marion on
"Organizing Farmer Cooperatives;" at the State Department of Higher Education Conference on "Whose Ethics and Whose Morals in Teaching;" at the Arkansas Trial Lawyers Association meeting on "Resolving Water Conflicts - The Status of Current Law and Proposed Future Changes;" at a regional workshop for extension livestock specialists on "The Ef-
feet of the 1986 Tax Act on Lives tock Prod uction;" and was a panelist at the American Agricultural Law Association educational conference in Ft. Worth. His article, "Legal Aspects of Embryo Transfer" appeared in Embryo Transfer.
Rodney Smolla's treatise Law of Defamation was released by Clark Broadman publishers. Linda Malone spoke at the Euro-American Agricultural Law Conference in Plymouth, England. Don Pedersen spoke at the American Agricultural Law Association annual educational conference in Ft. Worth. Bob Laurence was a
speaker at the Fall Legal Institute. Chris Kelley spoke on 'Historical and Political Events Among the South's Pulpcutters and Haulers at a public forum presented by the United Woodcutters Association and Southern
Woodcutters Assistance Project. Bill Lancaster was a panelist at a symposium sponsored by the Fulbright Institute of International Relations and spoke to two groups in Rogers on tax reform. Student Activities Holly Smith, Brent Langdon and George Nowotny represented the law school at an ABA/Law Student Division workshop in Dallas where they received
special recognition for UA participation in the ABAILSD program. The Robinson Senate of Delta Theta Phi was selected as the outstanding student senate of the fraternity in the region which encompasses Texas, Oklahoma, New Mexico, Louisiana and Arkansas. Ceremonies rededicating the renovated and expanded Waterman Hall were held during the Fall Legal Institute. The addition, primarily for library space, brings the total area to approximately 60,000 square feet which will provide adequate space for library growth for the next several years.
Professor Wade McCree, Jr., former solicitor general and previously a member of the Seventh Circuit Court of Appeals, now of the University of Michigan Law faculty, gave the dedication address which was followed by a reception/open house.
UNIVERSITY OF ARKANSAS AT UITLE ROCK SCHOOL OF LAW By Paula Casey Professor
Younger presented a lecture "Ulysses in Court," an account of the extraordinary litigation surrounding the first publication of James Joyce's celebrated novel, in the UALR Fine Arts Hall on November 13, 1986. The lecture was sponsored by the UALR Law School and its Student Chapter of the Association of Trial Lawyers of Arkansas. Judge Henry Woods introduced Professor Younger. The UALR Law School Alumni Association held its annual Dean's Party in the home of Johnnie Holcomb in Little Rock on November 15, 1986. The party was hosted by the current president of the Association, Steve Morley, the past president, Mary Davies Scott, and the president-elect, W. Jane Knight. Terry Ball coordinated the event. Professor Ellen Brantley served as a special justice on the Arkansas Supreme Court and was appointed by Chief Judge G. Thomas Eisele of the Federal District Court to a state task force to recommend any increased resources
the federal courts will need to deal with death penalty habeas corpus cases. Bill Haught and Professor Brantley recently completed a supplement to their book, Arkansas Probate.
Arkansas Legislative Digest, Inc., has just January t987/Arkansas Lawyer/33
published Professor Gene Mullins' book A Handbook for Legislative Drafters. Professor Mullins co-chaired AICLE's recent seminar, "Legislation and Legislative Advocacy. Donaghey Distinguished Professor Robert R. Wright III and Professor Mort Gitelman of the University of Arkansas School of Law. Fayetteville have completed a supplement to their casebook on land use. It is being printed by West Publishing Company. Professor Wrigh t represented the General
Professor Glenn Pasvogel made a presentation concern-
ing recent cases on Arkansas debtor/creditor law to the Arkansas Bar Association's Fall Legal Institute in Fayetteville. The law school is fortunate to have several local attorneys teaching classes at the school this fall. Byron Eiseman is teaching estate and gift tax. Tom Overbey and Craig Westbrook are teaching deferred compensation, Clay Price is teaching law and economics and
Allan Gates and Walter G. Wright are teaching
Practice Section of the
American Bar Association at an institute at the Vermont Law School an-
Philip E. Kaplan, Honorable John F. Forster, Jr., Sherry Bartley and Michael D. Johnson are teaching trial advocacy workshops. Student Activities Patricia Eables, ABA Law Student Division representative, Patty Leuken, the Student Bar Association president and Kim Burnette attended the ABAILSD fall roundtable for the Tenth
nouncing the inaugura-
tion of a course of study in the general practice of law on September 26-28. 1986. He was a panelist in a discussion
of the concept. The panel also included the Honorable Frederic Allen, chief justice of the Vermont Supreme Court, former Vermont Governor Philip Hoff, a and Thirteenth Circuits practicing attorney, in Dallas on September 26-28, 1986. Law Peter Teachout. associate dean at Vermont, students from Arkansas, and the Honorable Oklahoma. Kansas, James Oakes. judge of Texas and Louisiana the United States Court attended. of Appeals for the Second Circuit. Professor Susan Wright and Professor Robert Wright attended the ABA's annual meetBy Dr. Rae Jean McCall ing in New York City in August. A 1986 supplement to Keeping current in a Estate Valuation Handchanging profession is book by Dean Lawrence like trying to keep upH. Averill, Jr. was reright on a surfboard ... cently published by the waves make it diffiWiley Law Publications. cult; but with knowledge, skill and practice Dean Averill has also it can be worth the completed a second edition of his Probate Code effort! in a Nutshell. which will During the past year, be published by West more than 1,500 attorPublishing Company. neys in Arkansas parti341Arkansas Lawyer/January 1987
cipated in continuing legal education programs sponsored by the Arkansas Institute for CLE. Providing quality programs is a serious re-
sponsibility; a commitment that is not taken lightly by the AICLE Board of Directors. At the October 2. 1986, Board of Directors' meeting the following officers were elected: Dennis 1. Shackleford of EI Dorado. president, Wayne Boyce of Newport, vice presi-
dent. Marvin Kieffer of Jonesboro. secretarytreasurer and James M. Moody of Little Rock, program chair. James A. McKenzie of Prescott was named interim secretary and H. Murray Claycomb of Warren was named in-
terim treasurer following the death of Kieffer on October 28, 1986. KUDOS for Previous Programs
CLE programs in Arkansas are made possible through the dedicated efforts of the many
tion Law: Introductory Topics had to be cancelled due to inadequate pre-registrations,
Kathy Goss and Pro!' Arthur Murphey planned and prepared an informative program. The 1986 Practice Skills Course was chaired by Rosalind R. McClanahan and Gregory T. Jones. 'Harold Simpson chaired the Health Law Update on November 7, 1986, and Michael Parker co-chaired the Federal Tax Institute on December 4-5, 1986. AICLE thanks these individuals and the faculties for making these CLE programs successful. Preview of Coming Events
The Mid-Year Meeting of the Arkansas Bar Association. scheduled (or January 23-24. 1987, at the LiWe Rock Excelsior Hotel, will feature the Latest in the Law. Included will be highlights of the 1986 Tax Reform Act in addition to sessions on Arkansas
individuals who serve
Divorce Practice: Allo-
as program chairs and
cation of Property and
faculty. They deserve
State and Federal Appellate Decisions. The 1987 Federal Practice Seminar. March 13 at the Little Rock Excelsior HoteL will feature Arkansas federal judges on "Improving the Quality of Advocacy" plus other topics of interest to practicing attorneys. On April la-II. a Labor Law and Labor Relations Seminar will be conducted at the DeGray State Park Lodge and Convention Center in Arkadelphia. This program will cover
special recognition for
the countless hours of planning. preparing and sharing. wi thou t pay. their knowledge and experience.
Special recognition is given to the following individuals who served as program
chairs: 'Martha Miller and Prof. Gene Mullins cochaired a program entitled Legislation and Legislative Advocacy on September 26. 1986. Mary Davies Scott and Mark Lester co-chaired the Fall Legal Institute: Bankruptcy - Basic and Advanced Sessions held in Fayetteville on October 2-3, 1986. 'Although Immigra-
major areas of concern to the practitioner in
I abo r- man age men t relations.
May I is the date for the 1987 Tax Awareness Seminar at the Little
Rock Excelsior Hotel. This "nuts and bolts" seminar will provide practical. timely information on the 1986 Tax Reform Act that every attorney should know. For more information on any of these programs, contact the AlCLE office. AlCLE Has Moved The new offices for the staff of the Arkansas Institute for CLE are located on the seventh floor of the Arkansas Law Center building. The address will remain the same, 400 West Markham, Little Rock, AR 72201. However, the telephone number has been changed to 375-3957.
ASSOCIATION HOUSE OF DELEGATES MEETING OCTOBER 4, 1986 The fall meeting of the Arkansas Bar Association's House of Delegates was held during the Fall Legal Institute at the Fayetteville Hilton. President Richard F. Hatfield presided. The House approved the minutes of its June 7, 1986, meeting. It also approved an unaudited financial statement dated August 31. 1986, and 20 applications for membership. Sandra Wilson Cherry. secretary-treasurer.
certified live new delegates to positions in the House. Philip E. Dixon, chair of the Membership Com-
mittee, reported on efforts to increase the membership of the Association. Dixon reported a net gain of 134 new members as of September, 1986, including newly admitted attorneys to the bar. President Hatfield, reporting for the Mandatory CLE Committee in the absence of its chair, W. Russell Meeks, III, advised that the Supreme Court has included in its budget now before the legislature a position for a court administrator which, if approved, will be sufficient to administer and carry out the mandatory CLE program. William D. Haught. chair of the Agriculture Law Committee, discussed the Association's participation in the Farm Family Support Project. Plans include a mailout to all attorneys requesting volunteers to
represent farm families in need identified through a "hot line" established by the project. A statewide listing of Arkansas attomeys willing and able to con tribute their services will then be developed. The Agriculture Law Committee will be responsible for coordinating our porticipotion. James H. McKenzie, chair of the Resolutions Committee, reported that a request to the Resolutions Committee for a resolution on Amendment 66 did not comply with the constitutional provisions for consideration by the committee and, therefore, no such resolution would be presented to the House for its consideration. Mr. McKenzie further reported that Resolution 86-6 addressing Amendment 67 was not timely filed, and be-
cause no motion was
made that the rules be suspended, it was not considered. The House approved a resolution urging all members of the legal profession to refrain
from paid commercial advertising.
Tom Carpenter, chair of the Group Insurance Committee, reported that the committee recommended against any effort in Arkansas to form a self-insurance company in reaction to
the rising number of malpractice actions. The committee did advocate that future steps be taken which will be aimed at loss prevention. In the absence of Jack C. Deacon, Herschel H. Friday reported on the issues addressed by the ABA House of Delegates at its recent meeting. in-
cluding a resolution that any agreement between the American Bar Association and the Association of Soviet Lawyers include a commitment to a dialogue on human rights. The ABA also adopted a resolution in favor of proposed amendments to limit application of the RICO statute. Friday tendered his resignation as ABA delegate inasmuch as he will hold a delegate position by virtue of his service on the Board of Governors. President Hatfield then nominated, and the House approved, Jack C.
provided an update on lawyer participation and cooperation by Arkansas banks. John P. Gill. chair of the Bicentennial Committee, outlined the committee's plans to educate the Arkansas public regarding the constitution and its meaning. Plans include speeches by members of the Association before civic and other local groups. Vincent W. Foster, Jr., chair of the Association's Jurisprudence and Law Reform Committee, recommended on behalf of the committee that certain proposed legislation be included in the Association's legislative package for 1987 including: (I) A bill to amend the notice to creditors statute, (Ark. Stat. Ann. ยง 62-211 I) deleting the six-month exception for tort claims and requiring that actual notice be given to creditors who are known to the personal representative or
whose identity can be ascertained with reasonable diligence; (2) A bill amending Ark. Stat. Ann. ยง62-2505c to expand the authority of the personal representative of an estate to pay small claims up to $3,000 without filing as required by Ark. Stat. Ann. ยง 62-2603; (3) A bill revising the garnishment statutes (Ark. Stat. Ann. ยง 31-501 et seq.). The Committee recommended that the House should delegate Deacon to serve in this the authority to draft position. and approve such a bill Markham Lester, on to tbe Legislative Overbehalf of IOLTA, resight Committee. ported on its recent efThe recommendations forts to recruit lawyers' of the Jurisprudence and participation in the IOLTA program. Lester Law Reform Committee were adopted. introduced the new executive director of IOLTA, Martha Miller, lobbyist for the Association, Suzanne Roberts, who January 1987/Arkansas Lawyer/35
reviewed the procedure in place for approval and passage of the Association's legislative package to be presented at the upcoming legislative session. Miller sought direction from the House on various matters relating to changes in the civil justice system likely to be considered by the legislature in the near future. The House elected to take no action concerning possible legislation on joint and severalliability and the collateral source rule thereby permitting the Legislative Oversight Committee to react as it deems neces-
sary at the appropriate time.
motion by Winslow Drummond, seconded by Robert K. Walsh, that the Association oppose any effort to legislate a provision for bifurcation of trials. The House also took no action on legislation pertaining to the statute of repose on products liability, alternate dispute resolution and limited liability for directors of non-profit corporations, thus delegating action on these
matters to the Legislative Oversight Committee. Winslow Drummond moved that the House support any effort by the insurance commis-
The House approved a
sioner to expand his au-
thority in order to put the burden of going forward with the insurance carrier rather than the plaintiff. The motion
ing program at the Fall Legal Institute. President Hatfield reparted that the Association is progressing well
was seconded and
on its goals regarding
passed. The House further adopted a motion made by Charles Carpenter directing the Legislative Oversight Committee to oppose any change in the Rules of Civil Procedure by legislative
tort reform. increased
At the request of Executive Director William
A. Martin, Dennis L. Shackleford introduced the new director of AICLE, Dr. Rae Jean McCall. Shackleford thanked Mary Davies Scott and Markham Lester for the outstand-
membership, the Bicentennial of the United States Constitution and specialization. President Hatfield also announced that the Association would host the Southern Conference of Bar Presidents at Little Rock on October 23-25, 1986. There being no further business, the meeting was adjourned at 11:00 a.m. 0 Respectfully submitted, Sandra Wilson Cherry Secretary-Treasurer
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(Print rorporalt: n:.une aacd) as 00 certiflCale of inrorpor.alion. add $8.00 for 2- die a.)
0 NPV or 0
I'\'$_ _=;:-__ Capitalizalion $ ex:h
certificates signed by President and
-::;-_ _::-_ _-:--;_,--_:;:-;;-
(Secrwl)'-Tl'e'olSurcr. unless othcl"'o\'jsc SIKlCiflCd)
o (}.'emighl Air Courier shipmenl, add S6.00 o t"cdcral or slate non-regislr"dlion
o If prepaying, add $1.50 for surface shipping and handling.
dir. min., tre-dlisc, law, CIC., S4.9; eXira
0 MasterCard D Visa D Diners Club D American E,l;Press CanlNumber
clause. ;C SI2.00 extra
DIRe Â§ 1244 complclc scl-resol.,
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