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The Arkansas

A publication of the Arkansas Bar Association online at www.arkbar.com

Vol. 37, No. I, Winter 2002

Greetings of the New Year from your 2001-2002 Officers and Board of Governors

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PUBLISHER

Arkansas Bar Association Phone: (SOl) 3754606 Fax: (SOl) 3754901 Homepage: www.arkbar.com E-Mail: pjones@arkbar.com EDITOR Pal JOIlf.'S

GRAPHIC DESIGN

Sara Landis

Contents VOLUME 37, NUMBER 1

EDITORIAL BOARD

Stuart P_ Miller, Chair Wiley A. Branton Morton Citelman James c. Graves J. Leon Holmes Jacqueline Johnston/Cravens Lucinda McDaniel David H. Williams Jacqueline S. Wright

Features

OFFICERS

Student Rights and the Internet

President Sandra Cherry

by Bettina Brownstein

8

President-Elect Murray Claycomb Immediate Past President Ron D. Harrison

13

Secreta ry-Treasurcr William A. Martin

The Arkansas Teacher fair Dismissal Act: A Primer

by Paul Blume

Parliamentarian Jeannette Denham

Board of Governors Chair

20

David Vandergriff Young Lawyers Section Chair lim Cullen Executive Director Don Hollingsworth Associate Executive Director Judith Gray

The Arkansas Court Automation Project by Timothy N. Holthoff

27

BOARD OF GOVERNORS Judge Wiley Branton, Jr. F. Thomas Curry Thomas A. Daily Elizabeth Danielson Kay West Forrest Lance B. Gamer Dave Wisdom Harrod Robert "Skip" Henry Gwendolyn Hodge Jill Jacoway Philip E. Kaplan Edwin N. McClure Lance R. Miller Marie-Bemarde Miller James M. Simpson, Jr. James D. Sprott Danny Thrailkill Teresa Wineland Robert E. Young

Amendment 80's District Court Let's Make It "Cricket" This Time, Part II

by Judge Vic Fleming

LIAISON MEMBERS Tom Overbey Judge David Burnett Carolyn B. Witherspoon Wi.Iliam Wright Tht. A.rkansllS Lffwytr (USPS 546-0(0) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send lICIdress changes to Tht. A.rkansas LaW!jtr, 400 West Markham, Little Rock, Arkansas 72201. Subscription prke to non-members of the Arkansas Bar Association $25.00 per year. Any opinion el(pressed herein is that of the author, and not nettSSllrily that of the Arkansas Bar Association or Th/! Arkansas Lawyer. Contributions to 11l1! Arkallsas Lawyer are welcome and should be sent ill two copies 10 EDOOR, Thl! Arkansas Lawytr. 400 West Markham. Little Rock,. Arkansas 72201. All inq\1iries regarding advertising should be !lent to Editor. The Arkan$llsUrwyn, at the above address. Copyright 2002. Arkansas Bar Association. All rights reserved.

On the cover: Left to Right. front row: Thomas A D.lIty, Sandra Cherry, DaVId Vandergnff: second row: Murray Oay<omb. Carolyn B. Wither'iPOQ", Dave Wisdom Harrod. Gwendolyn Hodge. Ron D. Hamson; third row: Elizabeth Danielson, Kay West Forrest. Judge Wiley Branton. Jr.. Jeannene Denham: fourth row: Wilham A. Martin, Mane-Bemarde Miller, Robert E. Young, James D. Sprott, Danny ThrailkHl: fifth row: Edwm N. McOure. Teresa Wineland, Philip

E. Kaplan, Lance B. Gamer. Don Hollingsworth: sixth row: F. Thomas

Cuny. Robert 路Sklp路 Henry. lim Cullen; Not pictured: Jill jacoway. James M. Slmpson, Jr.. Lince R. Miller. Tom Overbey. Judge DaVId Burnen, Wdliam Wnghl

Contents Continued on Page 2

Contents VOLUME 37, NUMBER 1

In This Issue 3

32

President's Report, by Sandra Wilson Cherry

CLE Calendar

5

34

Executive Direcrors' Report,

by Don Hollingsworth and Ann Dixon Pyle

19

BOOK REVIEWS:

Blood in Their Eyes On Trial: Lessons from a Lifetime in the Courtroom

ew Arkansas Bar Association Brand Debuts Justice Fogelman

36 Judicial Disciplinary Acts

e1ebrates 90th Birthday

38

23

Lawyer Disciplinary Actions

YLS Section Report, by Tim Cullen

46

24

In Memoriam

Salute ro Seniors: Oscar Fendler

48 Classified AdvertisinglIndex ro Advertisers ARKA SAS BAR ASSOCIATIO 400 IV. Markham Little Rock, Arkansas 72201 HOUSE OF DELEGATES Delegate District I-SE: Ray Allen Goodwin Delegate District 2-5£: Mark R. Johnson, K:lIhuine C. Wilson Delegate District )-SE: Michael E. Mullally, I)aul D. Wadde.ll, Dennis Zopler Delegate District 4-5£: Bill E. Bracey, Jr. Delegate District 5-5£: James Bradley Delegate District 6-S£: Chris Morledge. Delegate District 7-SE: Donald E. Ktt Delegate District 8-SE: How:ud L. Manin Delegate District 9-S£: James Pat FlowC'rs Delegate District 10-S£: William Kirby Mou~r. David Sims Delegate District 11-5E: Paul W. Ke.ith Delegate District 12-5E: James Hamilton Delegate District Il-SE: Slev~ R. Crane, Brian H. R:udiff, Robin Carroll Delegate District 14-SE: Fr:mk A. PofT, Chrisli~ Ad2ms Delegate District IS-SE: Barry D. Barber, Todd M. Turner Delegate District 16-SE: Ronald D. Kdsay, John T. Vines Delegate District 17-SE: James Jackson Delegate District I-NW: Edwin N. McClur~. Glenn E. Kelley, Hardy W. Croxlon, Jr., George R. Spence Delegate District 2-NW: Ernest B. Cale, Boyu R. Davis, April M. Ryt, Shannon L Fant, Raymond L Niblock, Stevtn S. Zega, lim Snivdy, Matt Durmt, Chris Rttd Delegate Dist:rict )-NW: ilci Cung, Claud~ S. Hawkins, Jr., WyITWl R. Wad~, Jr., Eddi~ H. Walker, Jr., Shannon L Blatt,limothy C. Sharum, Jason Maninez Delegate District: 4-NW: Danid B. ThraillciU Delegate District 5-NW: Gordon Webb OeIepte District 6-NW: John T. Tatum, David LEddy Delegate Dist:rict 7-NW: Danny M. Ra.smussm, Rhonda Wood Delegate District: 8-NW: Ted Sand~rli Delegate District I-e: Brad Hendricks. Harold Evans,

Gw~ndolyn

D. Hodg~. Ron A. Hope, Philip E. Kaplan, Harry A. Lighl, Stark Ligon, Charles C. Ov.·~n,

harles L SchlumbC'rger, Don K. 82rnes. EliUbC'lh A. Thomas, Marshall S. Ney, Melva J. Harmon, John C. Wade, Jeff Broadwater,

Marcella J. Taylor, Reed R. Edwards, M. Stephen Bingham, John Wyvill, Causley Edwards, David Sterling, Patrick Harris, Brenda Stallings. Mark Allison, David R:l.upP, Rick Ramsey, Patrick D. Wilson Law Student Representatwes: Valerie Glov~r. University of Arkansas School of Law; Jason ltt, UALR William H. Bow~n School of Law

2 The Arkansas l.Jwyer

www~can

President's Report

Prepare and serve with pride Sandra Wilson Chern centralized registry for all state and local bar association pro bono programs relating to me mobilization and deployment of reservists and active dury personnel. Our Association has joined with the ABA in this coordinated effort to make certain that our men and women will not lack the legal assistance they need.

I

n the aftermath of September I I, 200 I, our profession received an outpouring of

sympathy and suppan from throughout the world. The American Bar Association received messages of solidariry from 67 bar associacions from Beirut [Q Zimbabwe. On behalf of our Association, I joined with scare bar presiden[S throughout the nation in offering help to presidents of the ew York State, ew York City, and Washingron D.C. bars. Subsequendy, I have been filled wim pride at the

manner in which our

profession has risen

[0

meet the awesome

challenges resulting from the senseless

terrorism, displaying unbelievable leadership, effectiveness and heacc

Of major importance have been the efforts of me organized bars throughout the United Stares co assist victjms and their families, lawyers who need help or want to help and servicemen and women who have

been deployed in defense of our great land. hordy after September 11,200 I, the Armed Forces asked the American Bar Association to develop a nationwide

Chaired by Col. Glenn W. Jones, Ret., a Military Assistance Task Force, including, BG Sam Gibson; BG William F. Sherman, Ret.; Col. Jack W. Holt, Jr., Ret.; Col. William A. Martin, Ret.; and Col. Stark Ligon are evaluating the needs of attorneys and the public. To provide help in such matters, lawyer volunteers in our assistance efforts need training in three specific areas; the Soldiers and Sailors Civil Relief Act, the Uniformed Service Employment and Re-employmenr Act and Servicemen's Group Life Insurance. The following website is provided to help you get up to speed on issues likely to

Our Association has joined with the ABA in this coordinated effort to make certain that our men and women will not lack the legal assistance they need. Certain problems unique to personnel in such a mobilization include serious financial burdens, made more stressful when they are born by a spouse in their absence. In leaving behind their everyday lives, military reservists also leave their jobs, frequently burdened with worry over whether the job will be waiting upon their return. At current levels, the military's legal assistance network may be able to adequately handle mese needs, but as deployments increase, our Association will be ready to provide free assistance for military members and their families. In preparation for this moment, we have asked outstanding military reserve officers from our ranks to formulate plans and coordinate our efforts to achieve this capabiliry.

be needed by you, either as a pro-bono volunteer. in representing a long-time c1iem, or as a trial judge who has not been confronted with these issues for almost a decade. Log on to www.arkbar.com.c1ick on the Military Assistance button and then click on the link called "American Bar Association... Many of you will want to be 3 parr of this effort. In times of crisis for our country, it is the natural desire of all of us to be a part of me nation's defense, to aid in the fight to defeat our foe. in this case terrorism. Providing badly needed help to our men and women in uniform will be a source of great reward to those of us who serve in this way and will contribute in great measure to our victory in this strange new conflict.

Vol. 37 No. l!Winter 2002

TI,e Arkansas I.awyer

3

STRONG PROGRAMS + STRONG BRANDING STRONG PUBLIC IMAGE

New Arkansas Bar Association Brand by Pat Jones President Sandra Cherry presented a plaque in honor of the occasion on behalf of the Association.

JUSTICE FOGELMAN CELEBRATES 90TH BIRTHDAY ustice John A Fogleman celebrated his 90th birthday with former Arkansas Bar Association presidents, family and friends at the Country Club of Lirtle Rock on Tuesday, November 6. Approximately 200 people attended the cocktail party hosted by the law finn, Gill Elrod Ragon Owen & Sherman, P.A., where Fogleman serves in an Of Counsel capacity. Justice Fogleman was president of the Association in 1958-59, recipient of the Outstanding Lawyer award in 1984, Arkansas Supreme Court Justice from 1967 to 1981 and Chief Justice in 1981.

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Justice John A. Fogleman celebrated his 90th birthday with fonner Arkansas Bar Association presidents, family and friends at the Country Club of Little Rock.

DON'T BE LEFT OUT! www.arkansasfindalawyer.com For more information, contact

Barbara Tarkington at 501·375·4606 or btarkington@arkbar.com

4

n,e Arkansas Lawyer

'o'MWar1<barcom

LaSt summer, a dynamic and diverse focus group of your Association coUeagues began the process of developing a single symbol to represent the enrire membership. Recognizing \......,. the need for an image which would serve the Association well in bOth traditionaJ and new media, web design experts from Arisrotle, Inc. were called upon, and the work began. It was my duty and privilege to guide the process. After studying the principles of good logo design and orher bar association logos, your colleagues set the parameters for and selected the Association's new symbol described below.

was red effort. Today's marketing experts agree that brand is "the everything." So. look for \ it. Ask for it. Respect it because it's yours.

An abstraction of the ftmiHar column theme made distinetiv~ by its use of universal figures to represent the Association's greatest strength - members working together toward common goals.

Sandra Cherry,

r

The solid reputation of this Association has been established over more than 100 years. It deserves a symbol in the new millennium which helps: position the Arkansas Bar Association as the guardian of the highest ideals of professionalism and public service for the legal community of Arkansas; and promote public trust in rhe legal profession that leads ro a sense of pride in those who pracrice law One of the keys to achieving such goals in an increasingly competitive environment is consisrent and persistent association of our symbol with our name and work. From frequent CLE sessions to the Annual Meeting, your symbol muSt have a prominent place, in print, on the web, in broadcasr media and wherever members of this Association are ma.lcing a difference. It is either a long-term commirment or a

J

Pat Jones is director of communication aud publications for tbe Arkansas Bar Association. One of her primary duties is servin.g as editor of Tbe Arkansas Lawyer mId Tbe NewsbuUetin.

Special thanks to the 200 I Logo Design Focus Group: president

Murray Claycomb, pr~sidmt-elect

Ron Harrison, immediat~ past president

Philip Anderson, past presid~m ofthe American Bar Association

H. T. Moore, past president of,be Arkansas Bar Association Colette Honorable Elizabeth Thomas Kimberly Witherspoon Don Hollingsworth Judith Gray

Executive Directors' Report

long-awaited Record 01 Anornevs' Activities Readv hV Don Hollingsworth and Ann Dixon Pvle On behalf of the Arkansas Bar Association and the Arkansas Bar Foundation, it is with great pleasure that we announce rhe publication of the IOllgawaited manuscripr. Old Seeds in the New

Land: History and Reminiscences ofthe Btlr of Arkansas, written by Dr. Rohert R. Wright. This manuscript is a well-researched, carefully documented work thac chronicles rhe developmem of the legal profession and analyzes and interprets the role and inAuence of lawyers throughout the state's existence. Attorneys have made important contributions co this stare, and now there is a record of their acdviry. Copies are now available for sale through the Arkansas Bar Foundation. The cost is $50.00 per book, plus $5.00 shipping and handling. Please call the Arkansas Bar Foundation ar (501) 3754606 or (800) 609-5668 or email apyle@arkbar.com to order your copy today. We would like to begin by recognizing the individuals for whom without their diligent and ongoing efforts. this book would not have come to fruition. From t 987 to the present, the two chairs of the Arkansas Bar Association History of the Bar Comminec. the late Justice George Rose Smith and Justice John A Fogleman. were fervent leaders in ensuring that this project was accomplished. The other members who served on the Comminee berween 1987 and today are toO numerous ro mention, but we would be remiss if we did nOt mention that Peg Smith and Frances Ross served on the Comminee for the entire fourteen years. In 1993, the Commitree selected Dr. Robert R. Wright to write this book. Since that time, he has donated his time and expertise in researching and writing this manUSCript. This project was not one which occurred overnight. Back in October of 1987, Justice George Rose Smirh, the chair of rhe Arkansas Bar Association History of the Bar

Committee, requested funds from the Arkansas Bar Foundation to support the research and writing of the history of the Arkansas Bar. This idea came forth following Arkansas' esquicentennial a11l1iversary in 1986. lr was apparent that despite the important role of the bar and its members on the developmenr of Arkansas, nowhere was the bar examined in depth historically. The Hisrory of the Bar Committee of the Arkansas Bar Association determined that after 151 years of statehood, it was time to fill that gap and produce a manuscript that would make a lasting contribution not only to the bar but also co the history of the State of Arkansas. Over the course of the next decade. the Arkansas Bar Foundation awarded the History of the Bar Committee four speciaJ projects grants for this project ro assist with research, travel and printing COSts. In addition to the Foundation grams, contributions for the project were received as well. In October of 1988, a letter from chen Association Presidenr Phil Dixon and then Foundation President Robert Dawson requested that lawyers donate funds to this project. In return, the donor's name would be listed in the book and they would receive a specially bound copy signed by the author A rotal ofsixty-three (63) Arkansas attorneys and law firms answered the call and contributed funds to the Arkansas Bar Foundation for this project during the 1988-89 bar year. Thanks ro rheir generosiry, along with several Foundation grants, funding for this research work was possible. In June of 2001, rhe Arkansas Bar Foundation Board of Directors and Arkansas Bar Association leadership approved a proposal submitred by Motr Gitelman on behalf of M and M Press to publish the completed manuscript. The copies of the book were delivered co the Foundation office in October of 200 I and

are available for sale. We hope you enjoy reading about the history of Arkansas' legal profession. It is with gratitude that we extend our congratulations and thanks to aU who made this important project possible. especially Dr. Roberr R. Wrighr. Books are for sate tbrougb tbe Arkansas Bar Foulldation Ilt fl cost of $50.00 elich, plus $5.00 sbipping dud bllnd!ing. Please order

your book today by completing tbe form beloUJ Ilud mailing it along with your payment to tbe Arkansas Bar FOIIUdatioll. ~--------------------------~

(

ORDER FORM

NAME

\,

,

,,, ,

_

,, , ,,

,,, ,

MAJU!\G ADDRESS (INCLUDE STREET ADDRESS)

,,

CITY STATE AND ZIP CODE

Pf-O\JE NUMBER Number of books ordered _ _ _ at a cost of $55.00 each ( 0 0 per book plus $5.00 shppng am hand, ng) Please make checkS payable to the Arkansas Bar F ndatm and return WIth this form to: AAKANSAS BAR FOJNDATlON 400 WEST tvtARKl-Wv1 LITTLE ROCK, AR 72201

}

"----------------------------~

Vol. 37 No. I/Winler 2002

TI,e Arbnsas Lawyer

5

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Hundreds of websites in Arkansas and around the United States have links

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Every day your Association's office receives 25 or more caJls from persons wanting the name of an attorney to hire. The office refers the callers to arkansasfindaJawyer.com, the Association's on-line anomey directory. Association members who wish

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Barbara TarkingTon for more informaTion: 501-375-4606; 800609-5668; brarkingron@arkbar.com.

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STUDENT RIGHTS AND THE INTERNET

<O:p</OBy Bettina Brown

Jimmy was 14, a computer nerd and a talented one. Almost every minute he wasn't

in school, eating or grooming himself was spenr on the computer in his room at home - either wim mher computer nerd friends or alone. If he didn't actually hare school,

Jimmy found a lor to criticize abour rhe administration and teachers. One day, in the

E. Brownstein is a partner

with Wright, Lindsey & Jennings LLP. Het publications include: State路

by-State Survey of Statutes of Limi路 ration and Repose, American Bar Association (1977); Arkansas Ale Civil Litigation Practice Guide (publication pending). She has been an instructor at the University of Arkansas at Little Rock Bowen School of Law and a Special Judge in the Pulaski County Circuit Coun. 8 The Arkansas lawyer

IMMN arkbar com

fall of 1999, while at home aftet school, he got the bright idea of parodying the school's web page and did so in colorful, sometimes pornographic, terms and pictures. No question about it, Jimmy's web page was adolescent fantasy run amok. Although occasionally funny, it was just as oftcn disgusting. Jimmy shared his creation with only a few friends. but word gOt OUt. as it inevitably does. When some angry parents brought the page ro the attention of school officials. they felt something had to be done, and they did it. They suspended Jimmy and rook away his in-school computer privileges. Jimmy's parents appealed to the school board, which upheld the school superintendent's decision. The parenrs then sued in federal court. The case setrled during trial. with Jimmy returning to school. The above scenario has been played out several times in schools across the country in recent years. The Inrerner and adolescenr angst make for a potent combination. School boy and girl antipathy toward teachers and

principals has always existed, and these latter individuals certainly have always been aware of it. However, the widespread reach of the Internet means that thesc sentiments can become much more public than before and that teachers and principals muSt comc face to face with thcm. Having no way to ignorc the sometimes pornographic and violent expressions of feeling. school administrators fcel compelled to confront them and go after the perpetrator - even if the Internet communication was done outside of school. School officials ofrcn are motivated by apprehension that the intensity of feeling reAected in some Interner sites will cause or evolve inro violent acu either in or out of school. Thus a dash of interests occurs: the administrators' desire to discipline the student and keep order in rheir school versus the student's consritutional righr of free speech thar even minors and students enjoy. School administrators and school boards often are surprised thar rheir authority to penalize a student for wriring or saying something rhey disapprove of IS

circumscribed, even if the speech occurred on school grounds during school hours. And the schools have authoriry to limit students' expression outside the school, except possibly in certain instances when the expression works its way into the campus and causes disorder in the school. CourtS across the country almost uniformly support a student's right to express him or herself, even if the speech is obnoxious and pornographic and broadcast to the world via the Inrernet. There are limits to the freedom. If the speech directly threatens harm to another or disrupts the educational process, it can be prohibited and the perpetrator punished. However, as one commentator has suggested, "[Teachers and principals must simply grow a thick skin. I [ell people" 'Kids have been saying these things about you for decades, but now [with the Internet and e-mail] it's JUSt a litcle easier to find out about it. And it's a litcle tougher to wash it off the virtual bathroom wall."'] Students' First Amendments rights at school stem from the landmark decision in Tinker v. Des Moines Independent School Distriet,2 in which the wearing of black armbands by high school students was held to be protected speech for which they could nor lawfully be disciplined. Key to [he outcome in Tinker was the finding that the students' symbolic protest did not "materially disrupt c1asswork or involve substanrial disorder or invasion of the rights of others."3 However, no free speech rights are absolute, and studenrs' are a lirtle less absolute than others - particularly when on-campus studenr speech is officially associated with the school in some way. Thus, disciplining a srudent speaker for sophomorically suggestive (but not profane) language in a school assembly speech was upheld against Firsr Amendmenr arrack in Bethd Scbool District No. 403 v. Fras<r 4. In Haulwood School District v. Kuhlmeier,5 the court upheld censorship of a schoolsponsored student publication, or any other expression that could be understood to "bear the imprimatur of the school", so long as the censorship related to legitimate educational concerns. 6 In Hazelwood, though ultimately not applying the Tinker "inrerferencel disruption" standard, the court took the view that Fraser had clarified Tinker to the extent that, "A school need not tolerate student speech thar is inconsistent with its

'basic educational mission,' even though the governmem could not censor similar speech outside the school. "7 The court did not e1abo[a[e on "outside [he school." In 1988. [hat term probably seemed free of ambiguity. Along came the Internet and the spread of computers into schools and homes. Is student speech in cyberspace beyond "the schoolhouse gate"? Where IS the schoolhouse gate in cyberspace? Is a srudent's web page, prepared by his own computer but visible on school computers, on-campus or off-campus? Perhaps more importantly, does that location matter? Are 7ink~r and Fraser even applicable to student speech published off-campus?

was viewed. However, the court found no proof of sufficient disruption to warrant the school's disciplinary action. In Emmit v. Kmt School District 9 the school suspended a senior, who was captain of [he basketball [earn and had a 3.95 GPA, over a personally produced web page. In addition to the usual remarks about adminisrration and faculty, the page contained mock obituaries of rwo students and invired a vore on who should be the next obituary. In a post-Columbine world, the school authorities apparently regarded the factious obituaries as threatening. Without addressing whether the web page had ever been accessed at the school. bur emphasizing that the speech was entirely

Is student speech in cvberspace bevond '1he schoolhouse gate"iI Where is the schoolhouse gate in cvberspaceil As might be expecred, courts have recently had opportunities to answer these questions. As also might be expected, they have so far found ways nOt ro do so. Almost everyone who has ever arrended high school has at some point in that experience subscribed ro the proposition that "school SliCks." In Beussink v. Woodland R-IV School District,8 Brandon Beussink rook that proposition to his web page in vulgar terms aimed ar the faculty and administration. Beussink built the web page entirely on his own computer and on his own time. The page was accessed at school by a srudent who brought it to a reacher's attention. The reacher informed the principal, and the wheels of discipline began to grind. Meanwhile, students in a computer class also viewed the page on school equipment, causing the teacher to devote some class time to a discussion of it. Nothing otherwise disruptive seems to have occurred. Beussink got a IO-day suspension. The school gOt a federal lawsuit. Applying Tinker [he court ruled [hat Beussink's First Amendment rights had likely been violated and issued a preliminary injunction. The court seems to have implicitly assumed that Tink~;s on-campus "disruption" standard applied because the page had been accessed at school, regardless of Beussink's personal disinterest in where it

outside the school's comrol, the court applied Tinker in temporarily restraining the suspension. The application of Tinker was mixed with a WattslO-rype "true threat" analysis - as if the absence of a threat equared to the absence of Tinker disruption. Instead ofa web page, Killion v. Franklin School Districtl l involved a student's e-mail. The plainriffhad compiled a "Top Ten List' of the personaliry flaws and other perceived deficiencies of the school's athletic director. Apparently, without the plaintiff's knowledge or participation, the e-mail found its way to the school and even into the faculty lounge. The plaintiff received a ten-day suspension, and sued. Reviewing what it deemed to be the relevant cases, including the rwo above and IS. v. Bethleh~m, discussed below, the court concluded that: Al[hough plainriffs urge [hat a heightened standard applies because the speech at issue occurred off school grounds, we need not resolve this issue. The overwhelming weight of authoriry has analyzed student speech (whether on or offcampus) in accordance with Tinker. Further, because the [Top Ten] list was brought on campus, albeit by an unknown parry, Tinker applies. 12 Finding no disruption of or interference with educational activities the court held the

Vol. 37 No. I/Winter 2002

TI,e Arkansas Lawyer

9

Feathers Flying?

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suspenslOn inconsistelH with the First Amendment. As against the school district's argumenr that me lewd nature of the site justified suspension, the court held that while that might be true had the student made the offensive remarks on campus, the school had no authority (absent disruption) to punish lewd comments made off-campus. Finally, in IS. v. &rhklmn Ar<o School District,l} the student's website featured profane and vulgar criticism of a certain teacher and "contained a picture of her

severed head dripping wi[h blood, a picrure of her face morphing inro Adolph Hider. and a solicitation, whether serious or otherwise, for funds to cover the COSt ofa hit man. n I ~ Aside from bei ng viewed by the principal following an anonymous tip, however, there was no indication that the site had ever appeared ar the school in any form. (" ... the matter presently before us involves speech that occurred off of school premises and was communicated to others via the Internet."15) Nevertheless, the Pennsylvania intermediate appellate court applied a Tinker interference/disruption analysis. Citing a case in which a suspension was upheld for loudly cursing a teacher in an offcampus public place l6 and Q[hers where the student publication did end up in the school, the court observed that "courts have allowed school officials to discipline students for conduct occurring off of school premises where it is established that the conduct materially and substantially interferes with me educational process." 17 1r

upheld [he school's finding ma[ me "udenr's website hindered the educational process and the school's decision to expel me student. The decision is on appeal to the Pennsylvania Supreme Court at this writing. So far, then, the nrong inclination of courts in student speech cases involving the Internet has been to apply Tink" without regard to whether the speech was on

campus. (N[hough. whe[her on or off school grounds, as shown by Beussink, remains a factor the courts at least give lip service to, indicating a reluctance to allow ... the schoolmaster jurisdiction over studenrs

beyond [he school grounds). The manner and resulrs of that application have nor been altogether consistent and the number of cases is still small, bur this inclination among lower courtS may be taking Tinker, with its emphasis on "the schoolhouse gate." Fraser, with its on-campus incivility emphasis, and Haulwood, with irs school-

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sponsorship distinction, to places where the Supreme Court had nor inrended to go. On rhe other hand, a school computer connecred to rhe Internet could access almost any student website. If the content of the site is such as to cause, or realistically threaten, actual and substantial disruption of the educational process, shouJd the poinrs of access be critical to the analysis? If the conrenr of a website is truly threatening to a person or persons or is an independenr cause of genuinely material disruption of school activity, the extenr of its occurrence or distribution inside "the schoolhouse gate" may he an incidental consideration. Wherher the Supreme Coun would maintain that demarcation line in an Internet case is an open question. Schools who are sued are prone to claim that a suspended swdem's webpage disrupted the educational process. Schools however, should be careful asserting that the page, rather than their reaction to it, was the cause of a disruption. Superintendents, principals, and deans risk overreacting to offensive Internet musing and ironically causing whatever commotion occurs by overzealous investigative and disciplinary measures, which become the talk of the school and disrracr from the classroom. For the most part, the CourtS appear willing and able to delineate the former from the laner and are hesitant to punish the student for uproar caused by administrators. So 111 addition to maintaining thick skin, school officials should hear in mind that their students have First Amendment rights and exercise restraint in insticuting any measures that would abridge them. Indeed, as a practical matter, the authors suspect that in many of these cases litigation would have been avoided had the web page been brought to the anention of the student's parents before the formal disciplinary process was engaged.

6 7 8 9 10 11 12 13 14 15

Id. ar 272. Id. at 266. 30 F. Supp.2d 1175 (ED. Mo. 1988). 92 F. Supp.2d 1088 (W.O. Wash. 2000). Watts v. U.S., 394 U.S. 706 (1969). 136 F. Supp.2d 446 (W.O. Pa. 2001). Id. at455. 757 A.2d 412 (Pa. Commw. Cr. 2000) ld. at 421. Id. at 419 (emphasis in original).

ENDNOTES

1"Couns Differ on Student Discipline for Disparaging Humor Over the Internet, " The Legal Intelligencer, April 13, 200 I. 2 393 U.S. 503 (1969). 3 Id. ar 513.<O,P<IO,P 4 478 U.S. 675 (1986). One could read Fraser to hold that, given the legitimate need to maintain civility in school proceedings, lewd speech is per se disruptive in a Tinker analysis. 5 484 U.S. 260 (1988). 12 TI,c Arkansas Lawyer

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I I

The Arkansas Teacher Fair Dismissal Act: A Primer By Paul Blume

In Arkansas, as around the nation, me main buzzword in education appears to be "accoumability." A great pan of accoumability must be focused on the competence of the teachers in the classrooms, where almost all of the instruction for which someone has to be accountable takes place. Fortunately, mOSt teachers in Arkansas are excdlem. In faer, we probably get a lot more from our teachers man we pay for or, for that maner, ever can pay for. However, as with all human endeavors, mere are some teachers who should look ro other occupations for their livdihoods. That's where the Arkansas Teacher Fair Dismissal Act (TFDA) comes in. The TFDA is a series of statures which ser our rhe rules which mUSt be followed when the dismissal of a reacher becomes necessary. The TFDA is located at A. .A. 6-17-1501 through 1510, and the statutes Start with what mUSt be done when a teacher first exhibits problems through the imermediare steps which must be raken leading up to dismissal. In this article, we will look at the history of the TFDA and, then, go through a teacher dismissal, srep-by-srep.

HISTORY For many years in Arkansas, reachers had no sratutory prorection in their jobs. Most of the court cases produced in the years prior to the enactmenr of the firsr TFDA dealt with the attempts by teachers to collecr on rhe comracrs under which they had been hired. McDougald VI. Sp"ial School District No. 43, 174 Ark. 963 (I 927) (Teacher discharged during the term of her comracr without cause); Vick Comolidaud School DiItrict VI. N,w, 208 Ark. 874 (I 945) (Teacher sued for rhe amoum he would have been paid if he had been employed the whole school year. Denied, because the reacher did not have a wrincn comract); Crownover lIS. A/rend School District, 21 1 Ark. 449 (1947) (Teachet brought a comraer acrion, alleging that her discharge was for insufficient reasons. The Court held that the reasons, which included engaging in a snowball fight during school hours, were, indeed, sufficient). With rhe advent of the Continuing onrract Law in 1969, things changed, somewhat, for teachers. That law provided that a teacher's contract would continue, i.e., autOmatically be renewed, for the following school year, unless the reacher was notified orherwise. Ark. Stat. Ann. 80-1304 (Supp. 1969).

(The conrinuing contract provision is incorporated ;nro the TFDA, A.CA. 6- I71506). Prior to the Continuing Contract Law, a teacher could simply be told nor to come back next fall, with no repercussions for rhe school district and. obviously, no protection for the reacher. However, with the change in the law, a teacher could be told not to come back next year, but thar norice had to have been given no later than ren days after the end of the currenr school year. In 1970. the Arkansas Legislarure enacted the Public School Employmenr and Dismissal Pracrices Act, Acr 74 of 1970 (Ex. Session), Ask. Stat. Ann. 80-1243 through

About the Author PauJ Blume has been in privare practice in Lirtle Rock since 1982. He writes a monthly column on school law for the

R,porttr of the Arkansas School Boards Association

and

has

been

rhe

Association's general counsel since 1987. He

frequenrly

speaks

to

school

administrators and board members on school law.

Vol. 37 No. I/Winler 2002

n,e Arbns"s l"''Yer

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1248. This new law was nor a lor of help for teachers, bur it provided. at least, an opportunity for a hearing. The school board still could dismiss a teacher withour a hearing, and there was no requirement of a statement of reasons for the dismissal. However, after the teacher was notified that

Although the 1979 law was not a complete departure from the prior law, the new law gave birth to the substantive basis for a recommendation ofdismissal

he was dismissed, he then could request a written statemem of the reasons for the dismissal. if the request for reasons was made within ten days of the teacher's receipt of the notice of dismissal. He then could request a hearing. There was nothing conrained in the law which indicated a substantive standard for the reasons for dismissal. There appears to have been little litigation under this new law. In Appler Vi. Mountain Pine School District, the district was taken to federal court. which court decided that the mere furnishing of a copy of the board minutes to the teacher did nor meet the requirement under the law that a record of the board hearing be preserved. 342 ESupp. \\3\ (W.O. Ark. \972). In 1979, the Legislature enacted the first "modern" version of a teacher dismissal act. Act 766, "The Teacher Fair Dismissal Acr of 1979," a law which provided reachers with more rights in a dismissal proceeding and, if nothing else, gave the law a simpler title. That law was codified at Ark. Star. Ann. 80\264 through 1264.\0. Under this new law, the concept of a "probationary teacher" was first expressed. A "probationary teacher" was one who had not been employed in rhe school district for three consecutive years. Ark. Stat. Ann. 801264.\ (Supp. \979). Any rime a teacher moved to a differenr school district, the probationary period started again. The distinction between a "teacher" and a "probationary teacher" was that the probationary teacher had no right to a hearing if his contract was not being renewed (as opposed to termination during

14 The Arkansas la'ryer wwwarl<barron

the term of the conrract). Ark. Star. Ann. 80-\264.8. \n addition, only a teacher had the right to appeal his dismissal to circuit court, whether termination or nonrenewaJ. In order to nonrenew a teacher. he must have been given notice no larer than ten days from the end of the school year mat his nonrenewal would be recommended by the superintendent. and that notice had to comain reasons for the recommendation. The school board did not act prior to a hearing under the new law, and, upon receiving the notice of reasons for the recommendation, the teacher could requesr a hearing within thirty days of his having received rhe notice lerrer. There was no longer an intermediate srep in which the teacher had to requesr a statement of reasons. Ark. Stat. Ann. 80-\264.4. Although the \979 law was not a complete departure from rhe prior law, the new law gave birth ro the substantive basis for a recommendation of dismissal, rhar being "any cause which is nor arbitrary, capricious or discriminatOry." Ark. Star. Ann. 80-\264.5. There was no definition of what was "nor arbitrary, capricious or discriminatory," so the Arkansas Supreme Court took on the task of defining that term. In Lamar SchooL Districe No. 39 VI. Kinder, 278 Ark. 1, 3 (I982) the Court held thar an action is arbitrary or capricious "only if ir is not supportable on any rational basis," ciring

Partlow

Vi.

Ark. State Police Commission, 271

Ark. 35\ (1980). Clearly, "any rational basis" is nor much of a srandard, affording reachers little by way of substantive protections. See also, Kirtley Vi. Dardanelle Public Schools, 288 Ark. 86, 90 (1986). The "discriminatory" portion of the substantive provision of the TFDA is dealt with only on rare occasions by srate Courts. Most cases citing some form of discrimination, of course, find rheir way to federaJ court, wherher under, e.g., Tide VlI, Title LX or the Americans wim Disabilities Act. The Arkansas Supreme Coun has addressed the issue, however, stating that "there musr be a showing of clear and intenrional discriminarion" in order CO prevail under that part of rhe law. McClelland VI. PariI Public Schools, 294 Ark. 292, 298 (1988). There was noming in the starures which set a standard for adherence co the procedures set out in rhe law. In reviewing cases on procedural challenges, rhe Court determined thar "substantial compliance" with the procedures in rhe law was sufficient,

absent a showing that prejudice resulted "from any want of stricr compliance."

Fullerton vs. Southside School District, 272 Ark. 288, 290 (1981); Lee VI. Big Flat Public Schools, 280 Ark. 377, 378 (1983). Although the definitions of both "arbitrary and capricious" and "substantial compliance," as given by the Court were, themselves, vague, it was clear that the Court would not lightly overturn a school board's decision, doing so only when there was, almost literally, no reason for me d.ismissal or when the claim to have complied with the proceduraJ requirements of the law would nor pass the straight-face test. \n 1983, the Legislature enacted Aa 966, an amendment to the TFDA. The primary change brought about by Act 966 was rhat probationary teachers were given the same procedural protections as nonprobarionary teachers, wirh the exception that probationary teachers do nOt have the right to appeal a dismissaJ to circuit courr. An appeaJ under the TFDA remains the sole difference between probationary and nonprobationary teachers. A.C.A. 6-171510(d); Bond VI. Lavaca School District, 73 Ark. App. 5, \0 (2001). As before, however, probationary teachers may file an action in contract or pursue any other remedy at common law or in a constiturional or discrimination claim. McGee Vi. Armorel Public Schools, 309 Ark. 59 (1992). However, in addirion to providing more procedural protections for probationary teachers, the new law aJso changed me definition of a "probationary teacher." Whereas in the 1979 law, a probationary teacher had to complere three consecutive years in a given school d.istrict in Arkansas to satisfy the probationary period, Ark. Stat. Ann. 80-\264.\ (Supp. \979), with a new three-year period starring every time the teacher moved to another district, the 1983 law provided that the probationary period was satisfied by three consecutive years in one school district, with any subsequent hiring districts having the ability to hire a teacher as probationary for only one additional year. A.C.A. 6-\7-1502(a)(2). One other significant change was thar a norice of nonrenewal must be mailed no later than May I of a given year, rather than ten days after the end of me school year. That change forced administrators to make dismissal decisions earlier in the school year and shortened the amount of rime for the teacher to show improvement. A.C.A. 6-171506(a). In \989, the law of teacher dismissal

changed, dramatically. The Legislature, apparently viewing sTrict, slavish adherence to procedure as necessary for reachers' protection from unjustified dismissal, enacted Act 625 of 1989. That amendment to the TFDA requited that "A nonrenewal, termination or suspension, or other disciplinary action by a school district shall be void unless the school district strictly complies with all provisions of this subchapter and the school disrricr's applicable personnel policies." A.C.A. 6-171503. (Emphasis supplied). The effect was immediate and harsh. The change in the law provided that, regardless of the substantive reason for a teacher's dismissal, crc., if the distriCT deviated in any way from any requirements of the TFDA, or of their own, "applicable" personnel policies, me action co dismiss the teacher was void. As a result, even if the teacher was spectacularly unfir to be in the classroom, the procedure leading m the dismissal was far more important. In addition, regardless of how vague a given stammry or policy provision might be, the district had to comply with that provision strictly. With personnd policies of all of the (now 310) school districts in Arkansas being anything bur uniform, what was contained in those policies would become very important. It did not take a genius to pore over a district's personnel policies and discover some pan that the district did nor comply with, even if the district comended that the policy was not applicable. For example, if an evaluation policy required that an evaluation observation of a teacher must be no less than thirry minutes, an evaluator's observation of any amount less than the required time (and some teachers, especially the ones who know their jobs are on the line, will time rhe observations), rendered the attempted dismissal of the teacher "void." (In all probabiliry, rhe drafters of the statute actually meant "voidable," but the effect of the terlll "void" certainly expresses thar any deviation from strict compliance wiIl not be forgiven). In the cases which followed Act 625, the pattern was clear: The Coun applied strict compliance in every 1I1stanCe, even overturning cases decided under previous law, regardless of how renuous the failure to comply strictly might be. For example, in

Mllrray vs. AltiJeim,,-SI"rriil Pllblic Schools, 294 Ark. 403 (J 988), the Supreme Court

held that a derecr in procedure could be corrected. In that case, a school board had vored on a reacher's nonrenewal prior to his hearing. Upon learning of that, the night of the hearing, the district's lawyer had the board vote to rescind irs initial vote and then caurioned the board nor ro rake into account the previous vore. The Coun approved the correction of the procedure (although it overturned the nonrenewal for another reason). In Spainhour vs. Dov" School DiJrrict, 57 Ark. App. 195 (J 997). the Court of Appeals upheld a similar case (on a 3-£0-3 vote). However, the Supreme Coun granted a review of the case,

Spainhour

VI. Do~r

Public School District,

331 Ark. 53 (J 998). That Court decided that the corrections approved in MU"lly VI.

Alth,im"-Sh,,riil Pllblic Schools, sllpra, violated the "strict compliance" requirement of the TFDA. Strangely, the Court also noted that the hearing that was finally held in the case "might be said to have substantially complied" with the TFDA. but that the standard is now "strict compliance." 331 Ark. at 57. Thetefore, the Court could have overturned the Coun of Appeals decision without overturning Murray, but went the extra step and overturned MU"lly, anyway. Strict compliance did not require the Court to dirch the Mu""} rule, which allowed procedural missteps to be corrected, but the faCt that it did so made the strict compliance requirement almost completely unworkable, from a school district's scandpoinr. Schools now had £0 comply with every procedural requiremenr of the law and their own policies, without any possibility of correcting an error, regardless of how small. or incidentally, many parrs of me stawtes and policies were and are difficult to discern from a "strict compliance" standpoinr: How does one strictly comply, for example, with the requirement in A.C.A. 6-17-1507(c)(l) that the staremenr of reasons for dismissal in the superinrendent's notice letter be written "so thar a reasonable teacher can prepare a defense"? The cases which followed Act 625 point out the difficulty, e.g., Jackson vs. £I Dorado School DiJtrict, 74 Ark. App. 433 (2001);

HanTlon vs. Armortl School District No.9, 329 Ark. 267 (1997); Lmer vs. MI. VernonEnola School District, 323 Ark. 728 (1996);

Hilmi/ton vs, Pulaski County Special District, 321 Ark. 261 (1995); Wmern Grove School District vs. Ttr'1. 318 Ark. 31.6 (1994). In

some of the cases, an argument that the districr strictly complied with the law or policies was clearly without merit, but not in all. Of course, it didn't matter whether the teacher's rights were compromised by the lack of strict compliance, or whether the teachet should be teaching. Only ptocedural compliance was important. In ManiUl School District No. /5 tIS. White, 338 Ark. 195 (1999) the Supreme Court went to an extreme in crosspollinating strict compliance with other laws. In that case, a basketball coach was transferred from his coaching and teaching duties to being in charge of the alternative school. There was no change in his pay. That Coun held that the transfer was not a

Finally, however, the LegislLzture, in 2001, resolved most ofthe problems with the TFDA by eliminating "strict compliance" and substituting "substantial compliance" as the procedural standdrd. transfer, bur a dismissal and that, because of the strict compliance requirement of the TFDA, the transfet was void. The basis for the decision that the transfer was actually a dismissal was that the teacher was moved from a teaching/coaching position into an"administrative" position which did not enrail teaching duties. In support of irs reasoning, the Court applied Wt'Sum Grov~

School District vs. Tnry, supra.

"rry

In the case, however, the school district removed the teacher/coach from all of his coaching duties and summarily reduced his pay by $6,000.00. A finding that Ttrry was dismissed was not difficult. However, in the \'Vhiu case, nor only did the reacher nor lose any salary, the Court created a category of school employee, "administrative," which is not recognized in the TFDA. Creating that category, the Court then decided that the transfer was, instead, a dismissal. The Court wenr on to refuse to apply its primary case on transfers,

Chandlrr vs.

Vol. 37 No. I/Winlcr 2002

Perry-Coso Public School n,e Arkansas Lawyer

15

District No.2, 236 Ark. 1790 (I985), in which a reacher was taken from the classroom and placed in charge of a

The1'e was some controve1'sy among school administrato1's and schoollawye1'S ove1' whethe1' losing the "lny cause" substantive stantM.1'd101' 'Just and 1'easonable cause" was a good tradeoff

computer room. In rhe Pirry case, the Coun recognized the broad powers to transfer conferred by A.CA. 6-17-303, which states. "Districr school boards shall

have aumoriry to assign and reassign or transfer all teachers in schools within their jurisdiction upon the reeommendarion of superintendent." In Wbjt~. the Court chose to analogize the case to olle which bore almost no resemblance Curry) and to throw inro question whether any transfer, other [han from, say, fourth grade ro fifth grade. would be a transfer or a dismissal. Ie seems char strict compliance had eff"ecrs beyond dismissals. Finally, however, me Legislarure, in 200 I, resolved mos[ of the problems with the TFDA by eliminating "strict compliance" and subsrirming "substantiaJ compliance" as thc procedural srandard. Acr 1739 of 200 I. In addition, rhe law eliminated "any cause which is nor arbirrary, capricious or discriminatory," substituting "jusr and reasonable cause." \Y/e have a good idea of what conscirutes "substantial compliance," based on the courrs' previous decisions. The Arkansas courtS, however, have never defined "'jUSt and reasonable cause. " The new substantive standard is higher than irs "any cause" predecessor. Howcver, if "just and reasonable cause" is broken

me

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down inro irs componenr parrs, it is not SO fearsome ro schools: "Jusr" means "fair." "Reasonable" means that "it makes sense." If the cause advanced for dismissing a teachcr, therefore, is fair and makes sense, rhen the standard should have been mer, under any coure's review. There was some controversy among school administrators and school lawyers over whether losing the "any cause substantive standard for "just and reasonable cause" was a good tradeoff for eliminating "strict compliance." It seems clear, however. that in allowing schools and reachers to focus on the actual reasons for the dismissal of a teacher, rather than on the procedures co effect mat dismissal, we will avoid the sometimes ludicrous outcomes that strict compliance engineered. In the few school board hearings I have conducted since the new law came into effect on July I, 200 I, the change is manifest. No longer do the panies wrangle over an irrelevanr, technical procedural matrer. The focus is now on whether the reasons for the proposed dismissal, as described in the nmice Icrrcr to the reacher from the superintendent, justify the dismissal. In

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orher words. the main topic in the hearings is, "Should that teacher be in the classroom?"

II. APPLYING THE ACT Most of the efforts expended in applying the TFDA to the real world are expended by administrators. When advising administrators on a possible dismissaJ, the first thing to do is to review the personnel policies of the districc. Those policies are part of the teachers' contracts by starute. A.CA. 6-17-204(a), and the TFDA requires adherence to those policies. A.CA. 6-17- 1503. Although strier compliance is by the boards, a school still must substa.mially comply with both the requirements of the TFDA and its applicable personnel policies. The TFDA is applicable to all school employees who are required to have a teaching certificate as a condition of employment, except for superintendents and assistant superintendents. A.C.A. 6-171502(a)(I). There are cwo types of dismissals: Nonrenewal and termination. Nonrenewal ordinarily is used when a teacher has problems which he can't seem to correct and which are so substantial as to affect his ability to teach effectively. Termination is usually preceded by suspension (with pay) and is ordinarily reserved for those sins committed by a teacher which are more spectacular than simple incompetence. Not being able to control the classroom, or a lack of sufficient knowledge of the subject matter to be taught would likely justify nonrenewal. Coming to school under

...

the inAuence of alcohol or, say, running nude down Main Street at noon would justify sllspension and termination. If the teacher is to be suspended, it is important that your procedural ducks be in a row, because, the superintendent must send a norice letter to the teacher within cwo school days of the suspension. If you get your superintendent really prepared, the law allows the letter to be hand-delivered, and he may do so at the time of the suspension. However, hand-delivery, as opposed to cerrified mail, is best done with a receipt to be signed by the teacher, with another administrator present as a witness to the delivery of the letter. If the leuer is handdelivered, do nOt follow up with a certified letter. When contemplating non renewal, the TFDA requires that the teacher be norified in writing of the problems and that the administrator document the efforts to help the teacher correce the problem. These documentation requ.irements are in addition to the formal a.nd informal evaluations that all teachers must receive. The question of how much paper should be in a teacher's file is always difficult to answer, but the administrators charged with doing the observations and writeups usually have good instincts, based on their experience, about how much attention a tcacher in a particular circumstance requires. Review the documentation to ensure that each one contains the twO necessary ingrediems: (1) A description of the problem, written so that a third parry (think judge) can understand it without explanation; and (2) a description of the

efforts to assist the teacher to overcome the problem. Both of those things must be in any documentation, and the efforts to improve should be more than something like "Don't do that again." By the way, if the administrator is counseling with the tcacher without any documentation of those conferences, then the administrator is wasting his, and your, time. If it's not put in writing, it didn't happen. A.CA 6- 17-1504. When the time comes to write the letter notifying the teacher that the superinrendcm will recommend dismissal, the lerrer should do the following: (I) Tell the teacher what the recommendation will be; (2) in separately numbered paragraphs, sct out a complete explanation of each reason for the recommendation; (3) set out that the teacher has a right to a hearing before the school board and that, in order to obtain a hearing, he must request it in writing to the president, vice-president or secretary of the board, with a copy to the superintendenr, and that the request must be made within thirty days of the teacher's receipt of the norice lettet; (4) that the hearing will be public or private at the teacher's request; (5) that the teacher and school board may be represenred by an attorney or other person(s); and that a record of the hearing will be made, and a transcript provided to the teacher at no cost, if he makes a request for the record in writing. (If there is any potential for litigation from this proceeding, hire a court reporter regardless of whether the teacher asks for a record). A.CA. 6-17-1506 and 1507. Once the teacher requests the hearing, it

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The Arkansas I.awyer

17

Altheimer Symposium on Water Rights Scheduled Marl<. your calendars for this year's Ben J. Altheimer Symposium at the UALR William H. Bowen School of Law. On April 12:Water Rights in the 21 st Century: The Challenges Move East" will bring together national and local law scholars and practitioners in an examination of water resource issues of particular importance to Arl<.ansas and surrounding states. Nationally recognized presenters George Gould, Joseph Dellapenna, and Robert Abrams, all outstanding speakers and authors of the most influential water rights materials in the United Staes, will join a number of Arl<.ansans, including Jake Looney (UA-Fayetteville), James Goodhart (Arl<.. Game and Fish), and Alan Perkins (L.R. attorney), in critically examining policy, regulatory, and environmental concerns of water supply and usage. The program, to be held at the law school in Little Rock, has been approved for CLE credits. Advance registration is required. For registration information, please call or email Peggy Egan, coordinator, 501-324-9918 (law review office) 603-9501 (home) or megansofla@aol.com. 18 TI,e Ark.ns.s J.;jwyer VWMI.ar1<barcom

must be set between five and twenry days from the date of the receipt by a board officer of the request, bur that time may be extended by written agreemenr. A.CA. 6-17-1509 (Supp. 1999) If the reacher or his representative needs a hearing dare beyond the twCIHY days, have him pur the request in a leuct. The "agreement" can be memorialized by a return lerrer, staring that rhe district agrees ro the requesr. If there is no request for a hearing continuance, plan on having the hearing within rhe time. Even if the school board members will have problems meeting during that period of time, a hearing should be held. Although having a hearing beyond the rwency days for an excusable reason might "substantially comply" with the tjme requirement, I don't recommend finding out for sure, rhe hard way. At the hearing, the board president should open the meeting, idenrify the parries and their representatives, and ask the teacher whether he wants the hearing open or dosed to the public. If open, proceed. If closed, excuse everyone from the room who is not necessary to the hearing and proceed. Witnesses may be called in, one at a time, then excused after giving testimony. The administration goes first, with the superinrendent giving his recommendation ro the board (e.g., ") recommend that the teaching conrract of Mr. John Jones be terminated."). The presentation is made, consistent with the reasons set out in the superintendent's notice lerrer (which should be "exhibit ."), calling witnesses as necessary. A teacher dismissal hearing is not a court proceeding, so the rules of evidence do not apply. In orher words, hearsay is ok. If direct testimony on all issues was required, it would be impossible in many cases ro have a hearing, since school boards do not have subpoena power. Any witness for the adminisrrarion may be quesrioned by the teacher or his representative. Each witness may, also, be questioned by school hoard members. Following the administration's presentation, the teacher should he allowed to make his presentatjon. As long as it is organized, it doesn't matter how the teacher makes his presentation. Any of the teacher's witnesses (including the teacher, whether he testifies or nor) may be questioned by the school board and either the sllperinrendent, principal or other administrator who has knowledge of the situation. Under no

circumstances should school board members be questioned. Closing arguments by the reacher and the superintendent (or principal, etc.) are usually allowed.

The law addressing teacher dismissals has come a long way. Following the closing argument, the school board should go into executive session (regardless of whether the hearing was open or closed), and you should state on the record that only school boa.rd members will be allowed in the executive session. Since the superintendent is making the recommendation of dismissal, he is an advocate and musr not be allowed into the executive session. When the board rerurns to public session for the vote, the board must first vote on whether each of those reasons set out in the superintendent's letter is true or not true. Not why a reason is true or not, only whether it is true or nor. After each vote, the hoard muSt execute a written finding of fact setting out the finding of true or not true, relared on the form to the particular numbered reason from the superintendent's letter. A.CA. 6-17-1510(c). It is best 1'0 caution rhe board not to discuss the motion. Tell them simply to make the motion, the second and then vore. Unfortunate board member comments on the record will not help in the courtroom. When the findings of fact are complered. the board then votes on whether ro accepr, reject or modify the recommended dismissal. If the board finds all of the reasons not to be true, then there is no factual basis for the board ro vote other than to reject the recommendation. If even one reason is found to be true, then the hoard has all three options, assuming that the reason found to be rrue constitutes "just and reasonable cause." That determination, of course, is made hy the school board and should be given considerable weight in any appeal. A.CA. 6-17-1510(b)(3) allows the school board up to ten days from the date of

THE ARKANSAS TEACHER FAIR DISMISSAL Acr Continued on page 23

Old Dog

Articles of Incorporation The l.I1defsIgned acbng as incorporators 0( a corporation tndar the ArI<ansas BusIness Corporation Act (Act 958 d 1987), adopIlhe loIOwing Articles of hcOfPOl'aIion of such Corporation: First:

The name ,I the c.'I'.,a'lon N:

-C......,....

U""'cDnlU>lbo_ 'Carpc.OIiool.', 'InoorpcrO\.Od', ·Uoob...... 1ht oJ>tn,oi_ "(:'-P-', 'r... .. "Co,' .... LId..... ""'SO .. -............ allikJ ""'f'O"I"onolhof~.

New Trick Now, there is a faster, easier way to file corporation documents in Arkansas. The Online Filing System for Corporations, or OFS, was developed by the Secretary of State's office to promote electronic government in Arkansas. OFS is available 24 hours a day, 7 days a week, making the task of filing corporations documents convenient and maybe even fun!

Here is a just a sample of what's available: • Articles of Incorporation for Domestic, Foreign, LLC. and Non-Profit Entities • Registration of a Fictious Name for Domestic, Partnership, and LLC Entities • Registration of a Corporate Name for Domestic and Foreign Corporations • Domestic Corporation Franchise Tax Registration

www.sosweb.state.ar.us © 2001, Information Network of Arkansas.

www.accessArkansas.org

Vol. 37 No. I/Winter 2002

n,e Arkansas Lawyer

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The Arkansas Court Automation Project By Timothy N. Holthoffi

In November, 1990, recoglllzing that "uniform and effective automation of the Courts of this state will increase the COSt effectiveness and the efficiency of our Courts, as well as improve the quality of justice available to our citizens," the Arkansas Supreme Coun created the Committee on Automation, with the charge to "fuHy study all issues relating to the automation of the CourtS and to make recommendations for a master plan of automation." The Coun noted that, "In recent years, our judicial system has made gteat use of modern equipment, but our technical systems are incomplete and incompatible with other systems utilized in the courts and state government."2 A decade larer, there still was no "master plan of automation," and court systems remajned "incomplete and incompatible." In 2001, the Supreme Court, its Committee on Automation, and the Administrative Office of the Courts (AGC), have embarked on a bold mission to go where many states have already gone before:

About the Author Tim Holthoff is Director of the Court Arkansas Automation Project. He is a 1988 graduate of the University of Arkansas at Little Rock Law School.

20 n,e Arkansas Lawyer

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In 2001, the Supreme Court, its Committee on Automation, and the Administrative Office of the Courts (AOC), have embarked on a bold mission to go where many states have already gone before: to create a statewide case management system for Arkansas courts. to create a statewide case management system for Arkansas courts. The trek is perilous and fraught with difficulties; but as other states have demonstrated, with sufficient planning, funding and support, it is an achievable goal. During the 200 I session of the General Assembly, six million dollars was appropriated for COllft automation. Act 1590 of 2001 appropriated cwo million dollars 111 the biennium from the Administration ofJustice Fund for a District Court Automation System. The appropriation act for the AOe included one

million dollars in the biennium from the Judicial Fine Collection Enhancement Fund, which will be used for circuit courts. Because Arkansas lowered the D.W.!. blood alcohol conrem from .10 to .08, Act 1507 of 2001 permirred the Arkansas Highway and Transportation Department to transfer up to three million dollars of the highway safety funds it will receive from the federal government to the AGC for district court autOmation. Unfortunately, the Highway Departmcm will probably make no more than half of that amoum available to the AOe. We will also be seeking additional federal gram monies for the projecr. 3 To suppOtt the cost of majntaining the system, the General Assembly passed legislation allowing district courts to charge a five dollar monthly fee for fines paid in installments. Previously the circuit courts were permitted to charge this fee, but now it is clear that the district courts may also charge the fee to support court technology. Half of the five dollar fee will go to the city or county for court technology and the other half will go to the Judicial Fine Collection enhancement fund. Money deposited into this fund will be used by the AOe to purchase and develop technology for limited and general jurisdiction courtS to improve fine collections. Several automated district courts have reported dramatic 1I1creases 111 fine collections after automation. 4 With the inicial funding in place, all we lacked was a plan. s On April IS, 200 I, 1 was permitted to take a leave of absence as director of the Arkansas Supreme Court

Library in order to direct the Arkansas Court Automation Project. The first course of business was to assisr the Committee on Automation in the development of a strategic technology plan for court automation. The committee adopted a four year plan with the goals of creating a statewide system for case managemenr in all courtS, establishing a court network infrastructure. implementing electronic filing and documenr imaging. using jury management and courtroom technology, and improving the public Internet interface and integrated justice information systems. To accomplish these goals, the Arkansas Supreme Court, the Committee on Automation, and the Administrative Office of the CourtS should secure required funding, begin statewide case management, examine and propose legislation and court rules. and work with the Integrated Justice Information Systems Coordinating Council, the new state Chief Information Officer, and key state agencies and local governmenrs. The success of statewide court technology initiatives is dependent on broad-based support from federaJ. state, and local agencies that interact daily with the Arkansas judicial system. Because of the limited time available to spend the appropriated funds, the committee presented to the Court a preliminary strategic plan.6 as an intermediate step in fulfilling its charge to create a "master plan on automation." Although the strategic plan considered technologies other than case managemenr. the foundation for implementation of many of these rechnologies will be a uniform case management system. The Committee on Automation faces a great challenge in selecting a system that will satisfy the varying needs of courtS of general and limited jurisdiction. and courts with varying caseloads. The committee must consider the requirements of the clerks, the judges. case coordinators, members of the bar. and rhe public in selecting an appropriate system. In order to select a system, the committee has begun developing a Request for Proposals (RFPl, which is expecced to be released near the end of December. The committee is examining other statewide case managemenr RFPs, a model RFP developed by SEARCH, Inc., and national functional standards.? The committee will begin evaluating vendor responses In midFebruary 2002, and should announce irs

selection by April I. Over the next twO years, the AOC will implement the system in pilor courtS, and after problems are resolved, will begin rolling the system out to courts sratewide as funding permirs. A statewide case management system will provide many benefits to the bench, the bar. court employees. and the public. We will have accurate records of cases and caseloads in the courtS, and we will have access ro court records in all courts. 8 Electronic communications between the bar and the couns will be improved. and a uniform case management sysrem will open the door to other court technologies. such as electronic citations by law enforcemenr. elecrronic filing and document Imaging. and integration with prosecurors. public defenders. and law enforcemenr agencies. It will undoubtedly take several years before the case management system and other court technologies are fully implemented in all of the courtS of Arkansas. However, with our inirial funding. and the eager participation of the courtS and local governmenrs, we should see significant improvements even within a year. As the judiciary's trek inro the 21 St cenrury begins, we will encounter strange new problems. and implement new technologies that will increase the efficiency of our courts and improve the qualiry of justice available to our citi7.ens. 9 E DNOTES 1 Mr. Holrhoff holds a Bachelor of Science Degree in Computer Science. and a Master of Library Science Degree from Vanderbilt University. He received a Juris Doctor degree from [he UALR School of Law and was admitted ro the Bar of Arkansas in 1998. He served as the Assistanr Supreme Court Librarian from 1991 to 1998. and as the Director of the Supreme Court Library from 1999 ro 200 I, unril he was appointed Director of the Arkansas Court Automarion Projecr. 2 In re Court Automation, 303 Ark. 760,798 S.W.2d 925 (1990). 3 Id. 4 The Arkansas Crime Information Cemer provided $105.500 from irs National Criminal History Improvement Project to the AGC, which rhe AOC used ro fund [he Arkansas Coun Auromation Project office.

5

6

7

On average. about 20 percent of assessed fines go uncollected. Cirys and counties may see an additional 20 million dollars in revenue as the case management system improves the abiliry ro collect flnes. Represell(ative Jo Carson of Fort Smith was instrumenral in persuading the General Assembly to provide the inirial funding. and in trying ro persuade the Highway Departll1enr ro provide the entire three million dollars. See, Michael Tilley, Sofrware Funds in Limbo, S. W. Times Rec., Sepr. 28, 2001 (lasr visired Nov. 2, 2001 )<http://www.swtimes.com/archi ve/200 I/September/28/business/Sof[ wareLimbo.html>. Arkansas Supreme Courr Committee on Automation, Arkansas Judiciary Preliminary Strategic Technology Plan 2001-2005, Ocr. 17, 2001 <htrp: II aca p.srate. ar. usl prel i mpia n. ht

ml> 8

9

The functional standards are being developed by the National Association of Court Managers, the Conference of State Court Administrators, and the ationaJ Center for State Courts, and have been promoted by the Conference of ChiefJustices. See. The Consortium for National Case Management Automation Functional Standards Project (last visired Nov. 2. 2001) <hnp://www.ncsc.dni.us/esC/CfP /HTDocs/Srandards.h[m>. The Committee on Automation and the Supreme Court will begin looking at policy Issues regarding what information will be made available to the public. coun officers, and other state and federal agencies. Ir will be a d.ifficult task to delicately balance the issues of pflvacy and public information. See, e.g. Susan M. Jennen. Privacy and Public Access to Electronic Court Information: A Guide to Policy Decisions for State Couns (National Center for State Courrs 1995).

For additional information and updates on tbe Arknnslls Court Automation Project, you may visit the project's website at bttp:llacnp.state.ar.lts.

Vol. 37 No. I/Winter 2002

TI,e Arkansas l;Jwyer

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THE ARKANSAS TEACHER FAIR

YDUn" Section Report b Law\,ers _

Going Naked bV Tim Cullen Most of my attorney friends are fullyversed in the importance of insurance for the simple reason that many of us make a living bringing or defending insurance claims. \Y1e take it for gramed thar when folks drive in a negligem fashion, they are financially responsible for the damages caused by their negligence. We also realize that negligence does nor always come in the form of a third-offense DWl driving at a high rate of speed at nighr without his headlights going the wrong direction on an inrerstate highway. Negligence can also come in the form of a perfectly competem driver straying left- of the cenrer-line for a splir second while trying to dial a number on the cell phone. When such an accident occurs, drivers fall back on their insurance (as mandated by state law) ro compensate those who are injured by their negligence (and to release the driver from potentially endless legal liability). \'(!hile this scenario is so simple that most lawyers take it for granted, too many lawyers do not consider the impacr of carrying appropriare insurance for their own professional actions. hip Harper ar Rebsamen Insurance offered an educated guess based on his 23 years' experience and his company's own client base that perhaps 300-400 lawye" in Arkansas are uninsured. This is good news for mosr c1ienrs because ir suggesrs that the majority of arrorneys do carry appropriate coverage. However, ir is disconcerting that a subsranrial minority of Arkansas attorneys are going naked. As a lawyer, I would certajnly caution a client againsr ridjng as a passenger in a car where the driver has no insurance. Don'r you want ro know that a plumber working at your own house is bonded and carriers appropriare workers' compensarion coverage?

Shouldn'r we similarly caution prospective clients who are considering embarking on [he long ride thar is the arrorney-dient relarionship? Other jurisdictions are dealing with this issue in some novel ways. In an anicle in the ovember 200 I ABA Journal, Mark Hansen describes an approach that is in use in South DakOta. While the State Bar of South Dakota does not require lawyers to carry professional liability coverage, ir does require irs lawyers to post a cenain disclosure on lerterhead and advertising if they choose nor to carry coverage. The same article states rhat one jurisdiction makes it mandatory for lawyers to carry professional liability coverage. Lawyers, many of whom make rheir living bringing and defending negligence claims against defendants and their insurance carriers, shouJd take a hard look at their own coverage. The benefits of professional liability coverage in an amount appropriare ro [heir practice are rwofold. First, such coverage is in the besr imerests of a lawyer's clients, which is after all rhe attorney's paramount goal. Additionally, the prorection against personal judgmencs and associated liability for the lawyer is bound to help any arromer sleep better at night. Whethet these benefitS should be mandared by Supreme Coun Rule. legislation, or otherwise, is the ~ore complex question. Warch for American Bar Association action on this issue in the near furure, and consider how Arkansas attorneys, rhrough rheir Association. should respond.â&#x20AC;˘

DISMISSAL Acr

Continued from page 18 the hearing in which to make a decision. Ignore rhar. The school board should vore immediately following the hearing. There are roo many people who will shamelessly attempt (0 influence the board members eimer way during that period. Assuming char the board members will be immune to such approaches might nor be in rune with rea1iry. In addition, board members, being human, might be tempted [0 talk about the maner during char ten-day period. Those comments will always be heard and quorcd (or misquorcd) by someone, and, again, mose comments almost certainly will nor be helpful in the courtroom. As for the witnesses, due to some uncomfonable testimony by some scudents in teacher dismissal cases in the reeem past, the Legislature enacted Act 551 of 200 I, which allows the parents of a student under the age of eighreen co require rhar rhe srudent's resrimony in a public hearing be taken in closed session. Swearing in of wi messes is nor usually done, bur if someone requesrs ir, the court reporrer can rake care of it. The law addressing reacher dismissals has come a long way. With the original dismissal srarures, reachers' inreresrs were poorly served. With the advenr of "srricr compliance" in 1989, the pendulum S\YUng so far in favor of reachers thar the old belief that it is impossible to fire a reacher became almost literally true, and the interesrs of the schools and, most important, their srudems, were brushed aside. With the substitution of "jusr and reasonable cause" for "any cause which is not arbitrary, capricious or discriminatory," and with the rerum of "substantial compliance'" in the place of "srrict compliance,'" the pendulum finally may have found equilibrium.

www.arkbar.com Legal Info Unks

Arkansas Veterans Handbook Disaster legal Assistance

Tim Cullen is an attorney at Henry & Cull." iu Little Rock. He is Cbair oftbe Young Lawyers Sech'oll of tbe the Arkn1lsns Bar Associatio1l.

High School Mock Trial Program Senior Citizens Handbook/CareGivers Guide

L---------------------------~Y,~O::;I.-:3;::7 No. I/Winter 2002 n,e Arkansas l,nryer

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SALUTE TO SENIORS

OSCAR FENdlER Oscar Fendler was president oftbe Arkallsas Bar Associatioll from 1962-63 alld a memberoftbeABA House ofDelegates fro III 1968-79. Fendler is a recipient oftbe ABA General Practice, Solo alld SlIlall Finll Sectioll's Foullders Award.

Reprinted by pennlSSIon of ABA Publishing from Experimce magaz1I1e, Summer 200 1.

Arkansas), the U.S. Eighth DiStrict Court of Appeals, and the U.S. Supreme Court. My friend, Wilbur Mills, a classmate at Harvard, introduced me (0 the Supreme Coun in Washington. From the start, I was active in all phases of law practice, civil and criminal. oral and written. I served as president of the Arkansas Bar Association in 1962-63. J received the Lawyer Citizen Award from the Arkansas Bar Association for 1973-74. I have been active in the ABA since 1933. I panicip3red in organizing the Section of General Practice and became its chairman in

Tell us about your early years. I was born in Blyr.heville, Arkansas, on March 22, 1909. My father, Alfred Fendler, and my mother, Rebecca Sattler Fendler, were born in Krakow, Poland. My f:.1ther moved to the United States when he was 15 years of age in order to escape compulsory military service in the Austrian army. My mother came to the United States when she was 15 years of age and brought her mother and sisters with her to New York City. My parenrs were married in 1907 and moved ro Nashville, Tennessee. When my father's promised job fell through, they moved to Blytheville, Arkansas, where he obtained a job as a clerk in a retail Store. Blytheville had a population of about 2,000 persons. My father lost his job in 1910 before I was a year old. He moved his family to the small town of Manila, Arkansas, abour 15 miles wesr of Blytheville. Its population was less than 400 persons. He started a business of cleaning and pressing clothes and taking orders for men's suits. My mother assisted him. They lived in the rear of their business for several years before they had enough money ro pay renr for a dwelling. My sister Frances and my brothers R.E. and Benny were born in Manila. We attended public schools in Manila. There were not enough srudenrs to justify a high school. When I was in me II th grade, my parents sent me to high school in BlytheviUe, which I completed in 1926.

Where did yOll go to college Dud /ow school? I was admitted to the University of Arkansas, located 350 miles from Manila in the small city of Fayetteville, Arkansas. In college, my majors were hisrory and English. I participated in activities such as journalism, school politics, and acting in

24 TIle Arkansas La"yer

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1966-67. I was a member of the Committee plays. From the time I was in grade school, I had decided that I wanted to be a lawyer. I attended sessions of courts that were held in Fayetteville. I visited with local lawyers and judges to seek advice about attending law school and was encouraged to attend Vanderbilt. Unfortunarely. Vanderbilt's law school was put on probation. I then applied to law sellools at Harvard, Yale, Columbia, and Michigan and was accepted at each. I received a B.A. in 1930 and was graduated with honors from the University of Arkansas. I enrolled ar Harvard in 1930 and obtained an LL. B. in 1933 (Iarer changed to J.D.). The Dean was Mr. Pound. The faculty included Williston, Beale, Seavey, Leach, Frankfurter, Landis, Powell, and Scott. I was active in Ames Competition and the Brandeis Law Club. We went to the finals, where we lost, The contacts thar I made at Harvard were invaluable to me in my practice of law and in participation in the activities of the American Bar Association.

What are the highlights ofyour career? After admission to the Arkansas Bar III 1933, I was admirred to the bars of the U.S. District Court (Eastern District of

on

Education

about

Communism,

1967-70, and a member of the Commirree on Legal Aid and Indigenr DefendaIHs, 1970-73. I was in the House of Delegates of the ABA, 1968-1979. I became a member of the American Judicature Society and was on its board of directors, 1964-67. I was a Fellow. Arkansas Bar Foundation, a Fellow, American Bar Foundation, and a Fellow, American College of Trust and Estate Counsel. I have been listed in Who's Who in America for more than 40 years. Prior to active duty in the U.S. Navy in World War II, I was a parmer in a law firm with Cecil Shane, an outstanding Arkansas lawyer. We represenred major clients including large insurance companies and owners of large plantations. We were often involved in trial work in state and federal courts. We appeared often in appellate courts. state and federal. In adrution, I did much pro bono work and represented indigenes. I saw me need of legal aid being available for these persons. WhiJe on active dury, my partner, Mr. Shane, died, and our law offices closed. After the war, I had the burden of reopening our offices and regaining a law practice. I was a sale practitioner for years and regained a position as a successful la\,{yer in the

SALUTE TO SE lORS community, in Arkansas, and in the United States. I spent countless hours working to improve justice in all courts.

Did you have an opportullity to me your legal skills in wartime? I received a commission in 1939 as a lieutenant junior grade. U.. Naval Reserve (legal specialist). I was called to active duty in January 1942 afrer Pearl Harbor and repoered ro the U.S. aval Air Base, Corpus Christi, Texas. I was assigned to its legal office. Without the benefit of any training. I taught myself the answets to many problems relating to Navy law and naval personnel. In addition. the commanding officer assigned me the responsibility of caring for visitors to the Texas base. I looked afrer Lyndon Johnson, Ginger Rogers. Rita Hayworth, Carole Landis, Elise Knox, and Buddy Rogers. 1 served at bases in New Orleans, Norfolk, and San Francisco. I then received orders to Naval Base 3025, located in the Admiralty Islands, Manus. The commodore at that base placed me in charge of all legal problems that affected naval personnel on the base. as well as naval personnel from numerous ships that visited Manus Harbor. In early 1945. 1 received orders to repon ro Olongopo, Philippine Islands, in Subic Bay, for specific duty to rebuild all civilian housing that had been destroyed by our bombing the Japanese military. It was here that I met Colonel Magsaysay, the Philippine officer in charge. and worked endlessly in rebuilding the civilian homes and governmem. Meanwhile. aval Affairs in Hawaii gave me a speciaJ assignment to Brisbane, Australia, for five weeks to investigate corruption at our naval base there. Within a day of returning to the Philippines, I was transferred to the Seventh Fleet under Admiral Kincaid and placed on a staff ship that had the duty to proceed to Korea and to Shanghai, China, to accept the surrender of all Japanese forces. After four momhs with the fleet, I was detached from the sraff of Admiral Kincaid and received orders to board the USS ashville to return to the States, where 1was processed from active duty in December 1945. For my service in the Navy, I received a Bronze Star. I continued in the Naval Reserve until 1 was detached years later.

Have you halldled allY pro bOllo work of Wt7e you ever involved ill politics? special interest? 1 became inrerested in politics as a The most publicized case involved James teenager in my home in Manila, Arkansas. I Dean Walker, who had been wrongfully worked actively in campaigns to assist convicted of murdering a policeman in persons who ran for governor as Democrats. Notth Little Rock, Arkansas. I had been This brought me in contact with Cecil appointed by the governor 3S a special Shane, a lawyer in Blytheville. When I justice on the Arkansas Supreme Court and recurned ro Blytheville in 1945-46, I joined found that the jury in the Walker trial other young citizens who were candidates brought in a verdict of guilty and a death for positions on the Mississippi County sentence after deliberating less than one Democratic Central Comminee. All of us hour. I wrOte the opinion setting the verdict were successful in the primary elections in aside. In the second trial. the jury took four 1946. 1served continuously from January 1, hours to convict Walker and give him a life 1948, until this date on this committee. I sentence. Years later, I participated in a also served several years as a member of the number of cases in state and federal courtS Mississippi County Election Commission that challenged any vetdict against Walker. by appointment of the governor. I was never a candidate for any other We filed pleadings in the higher federal couns and in the U.S. Supreme Court. At political office. 1 never received any salary or length, the U.S. Coun of Appeals for the fee for my political work. I was always Eighth Circuit Uusrice Myton Bright interested in promoting honesty in presiding) found \Valker was innocent and government and minimizing corruption in set aside his conviction. He became an public offices. For that reason, 1 opposed innocent man and departed the Arkansas Jim Johnson's nomination in 1966 as prison to start a new life in California and Democratic nominee for the office of Idaho. governor. I joined a group known as I challenged the constitutionality of the Democrats for Rockefeller. \'(/e were penaJ farms in severaJ counties in the state. 1 successful in defeating Jim Johnson and was able to convince several U.S. District elected Win Rockefeller as governor. My real Courts in Arkansas that my position was objecrion to Jim Johnson was that I think he correct. These judges issued judgments to was a racist and a former member of the Ku close penal farms in several counties or to Klux Klan. correct their unconstitutional operation. These judges also corrected the improper operations of county and city jails. At the instance and appoinrment of Governor Win Rockefeller, 1 investigated racial relations in a city in eastern Arkansas. Our comminee held public hearings and concluded that blacks were creared in an unconstitutional manner. We obtained judgments from U.S. district courtS to correct these mistreatments of blacks. Governor Rockefeller did much to improve www.arkansasfindalawyer.com the problems thar had arisen in Arkansas as For more information, contact a result of this prejudice against the black mlllonty. Barbara Tarkington at 501路375-4606 Through this association with Governor Rockefeller, I was employed to investigate or btarlrin~on@arkbar.com corrupt polirics in several counties in the state that were controlled by political despots. I joined other lawyers in filing lawsuits against these persons. obtained large money judgments against them, ended their corrupt administrations, and restored local government to the cirizens.

DON'T BE

LEFT o UTI

Vol. 37 o. IlWinler 2002

TI,e Arkansas la,')'er

25

SALUTE TO SENIORS Whether I was supporcing Democratic

curtail the quantity of my practice. but I do

nominees or Win Rockefeller. I did all I could to keep politics clean and honest. I

nor ler rhis affecr rhe qualiry of legal work I produce. If I find thar a specific job is going co be burdensome to me, I do nOt accept the job. If I have already obligared myself. I try

never colerated corruption in public offices.

What an your insights afur more than 60 years in practice? The most imponam advice that I received as a lawyer came from my close friend and associate, Cecil Shane. He said in all simpliciry thar the besr rest ro be applied by a lawyer in any simarian was, "If in doubt, don'c!" Your conscience will always be your besr guide. This resr applies ro lay persons as well as co lawyers. The most important thing I have learned during my career is nor co expect pay and remuneration for all my work and effons. Remember that the satisfaction you will receive from doing your job well will more than compensate you for your effons. Realize that your decision co practice law involves your being able co assist your fellow persons, and that this means more to you than monetary gain for whatever you do. I am now 92 years of age. I practice full time. I have become more selective in the legal work I now accepr. Thar means I

as soon as possible co advise my client co release me or allow me to obtain some other lawyer to assist me. I do not conceal my conclusions from my clients. The best advice I can give any lawyer, young or old, is, do nor practice law only CO earn money. If such is your aim, you have destroyed yourself as a "professional" and have become another "feather merchant." As a lawyer, you must dedicate yourself co performing in an ethical way each legal assignment you accept, whether or nor you will receive any compensation. I have no plans for "retirement." I am assuming that my health and my advancing years will guide me in any decision to retire. I certainly do not want to mislead any cliencs in having confidence in my legal ability if I recognize that I am no longer able to represent that client in a proper manner.

Relaxarion? In my younger days. I played tennis. I obtained a letter in tennis as a smdent at the University of Arkansas in

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Fayetteville. I played rennis until 1942 bur quir while I was in rhe Navy. I played golf but lost interest. So, physically, I have no relaxation. I now relax in reading and writing and in music, symphonies. operas,

and ballers. I have no hobbies.

Tell us about your fitmily. My wife, Patricia, is a graduate of Vassar and is now in very poor health. She relies upon oxygen and has emered an assisted

living facility where I visit her daily and have lunch with her. My daughrer. Frances Shane Fendler, is a professor and associate dean at

the Universiry of Arkansas School of Law in Lirtle Rock. My stepson. T. P. "Chip" Wright. III, is an outstanding trial lawyer practicing in Fayetteville. Arkansas. My nephew, Gene Fendler. is a la\Al}'cr in New Orleans and a member of onc of the largest law firms in that cicy.

What have been your most recent h01lors? On August 8. 1992. rhe ABA Section of GeneraJ Practice held a ceremony in the University of Arkansas Law School in Little Rock to recognize me for my "extraordinary contribution to the practice of law and to those American lawyers who are dedicated to that practice." All U.S. district court judges in Arkansas. two Arkansas judges on rhe Eighrh Circuir Court of Appeals. Richard S. Arnold and Morris Arnold. and Eighth Circuir Court of Appeals Judge Myron Brighr from North Dakota presided. Don RikJi, now deceased, of the ABA Section of General Practice acted as chairman and presented me with the Founders Award. On August 5. 1996. the U.S. Army Corps of Engineers presented the Commanders Award for Public Service co me for my assistance co the Corps for 61 years as lawyer for Drainage Districr No. 16 of Mississippi Counry. Arkansas. The award nored how greatly I had contributed co the successful mission of the Corps in work performed in the Memphis district. I am thankful ro have been acquainred with so many lawyers in the United States, especially those wirh whom I have worked Il1 the American Bar Association, particularly the Section of General Practice and the Senior Lawyers Division.

Experimu magazine is a publication of the

ABA, Smior Lawym Division. 26 The Arkansas Lawyer

WMVarl<barcom

Amendment 80's District coon Let's Make it "Cricket" This Time, Part II {Author's Notc: Grateful acknowledgments are extended to Emma Jane Ohnemus, Esq., of Little Rock. for research and editorial assistance; Jane Portis Roeder of Conway, for research; the Honorable Darrell Hickman, retired Justice of the Arkansas Supreme Court and currently Circuit Judge for the 17th Judicial Circuir, for candid critique, commenrary, and advice; and the Honorable David Stewart of the Lirrle Rock District Coun, for a lively paine/counrerpoint debate on significant issues and candid commelHary on early drafts of this article.] Edicor's

Ofe:

Parr 1 of rhis article was published in the Fall 2001 issue of The ArkallSllJ Lawyer. The following Introduction is excerpred from that anicle:

IntroducUOA In Pan I of this article. we posrulared that when a person is stopped for a traffic offense in one {Own, but cited inco the coun of another rown, regardJess of the quality of justice ultimately dispensed, "it doesn't seem cricket" co the non-legally-trained mind. Nor to a lot of legally-trained minds. Law books have indicated only that such filings are not defective because municipal (now district) courtS have had "countywide jurisdiction" - except for ten counties that are divided inro fWO judicial districts, where the jurisdiction is district-wide. (Footnotes in Part I elaborate on this poinc.) Amendment 80 gives us, the legal

The Honorable Victor A. Fleming, Lircle Rock Dimicr Judge, is the author of rhree books, ediror of twO, and for 15 years was a columnist for The Arkansas Lawyer.

by Judge Vic Fleming, Little

Rock District (formerly Municipal) Court profession, a mandate at least to consider fIxing this appearance of impropriety. In Part 1, we looked at a century of case law, noting repeated dissent urging that law enforcement officials should file misdemeanor cases, especially traffic offenses, in couns most logically associated with the point of the infractions. In Part II, we analyze Amendment 80's provisions that bear on this issue and consider mher jurisdictional points as weU.

'an II Recalling that the issue is whether a person arrested in an area served by one inferior court may rightfully be hailed into a different area's court, in discussion with other judges, I have identified eight sections of Amendment 80 that seem to bear on this narrow Issue: Section 3 provides that "The Supreme Court shall prescribe rhe rules of pleading, practice and procedure for all courts." Section 4 provides that the Supreme Court "shall exercise general superintending comrol over all courts of the state." Secdon 7(8) provides that district courtS "shall have original jurisdiction, concurrent

with Circuit Courts, of misdemeanors, and shall also have such other criminal jurisdiction as may be provided pursuant ro Section 10 of this Amendmem." Secrion 7( ) provides rhar there 'shali be at least one District Court in each couney. If there is only one District Court in a couney, it shall have countywide jurisdiction.... " Section 10 grants the legislature "power co establish jurisdiction ... and venue" of district courts. Section 16(D) provides that district judges "shall be qualified e1ecrors wirhin rhe geographical area from which they are chosen, and ... shall reside within that geographical area at the time of election and during their period of service. A geographical area may include any county contiguous co the county to be served when there are no qualified candidates available in the county to be served. "28 Seccion 17(A) provides rhar dimicr judges "shaJl be elected on a nonpartisan basis by a majoriey of quaJified electors voting for such office within the circuit or district which they serve. "29 Secrion 19(B)(2) provides rhar dimier courts "shall have the jurisdiction vested in" all inferior courts. One interpretation is that Amendment 80 answers the issue in the negative. The rationaJc there is that the word jurisdicrion in Secrion 19(B)(2) refers ro subject marrer jurisdiction only and, therefore. beginning in 2005. a district judge's authority to hear criminal cases, under Secrion 7(B), will be limired, under Seerions 7(C) and 17(A), to rhose arising within the districr in which her electors reside. The other interpretation IS that Amendment 80 did not really answer the issue. The rationaJe there is that Section 19(B)(2)'s use of the word jurisdicrion is broader, elaborating upon earlier stated concepts, a.nd that it encompasses subject matter, personal, terricoriaJ, and whatever other eype of jurisdiction there may be.30 and, therefore, the status quo of countywide jurisdiction prevails, until legislation or court rule states Otherwise. In my opinion. Section 7(8)'s language "original jurisdiction ... of misdemeanors

Vol. 37 No. I/Winler 2002

TI,e Arkansas Lawyer

[and] such other criminal jurisdiction as may be provided" so clearly relates to subject marrer jurisdiction that the later language of Section 19 arguably is not concerned solely with subject marrero Thus, one must inquire, with what is it concerned? Through what I see as the logic of the language, Section 19 can only be concerned with an all-inclusive concept of jurisdiction)l To explore the two theories, one must examine whether Amendment 80 supersedes Ark. Code Ann. ยง16-17-206's grant of county\Vide jurisdiction to district courts. Section 10 grants the legislature "power to establish jurisdiction ... and venue" of district courts. That seems a logical place co look for language repealing this statute, whether in response to case law or otherwise. While Section 10 seems to address some case-related issues,32 it seems (Q me ro be devoid of express iment to override prior law on this poim. However, Ark. Code Ann. ยง16-17-206 was upheld on the basis of the 1874 Constitution's judicial article, which now stands repealed. Other Amendment 80 language arguably is inconsistent with ยง 1617-206. So, one might ask whether it was implicitly repealed. If the legislacure were (Q enact a law providing for citywide denion of certain district judges, but establish terrimrial jurisdiction as the ciry's planning jurisdiction (five miles out or half way m the next ciry33), effectively establishing an arrangement similar to the one upheld in Holt Civil Club v. City oflitscaloosa," would that Act withstand a challenge? The Honorable David Stewart, my colleague on the district court bench in Little Rock, would say no. He believes that Section 7(C) impliedly repealed Ark Code Ann. ยง16-17-206, reasoning that if there is only one district court in a counry, it has county\Vide jurisdiction "in every respect venue, territorial jurisdiction, election, and service" and that this "logically implies that if the county has two or more separate district courts, those courts also have separate areas that define and restrict venue, territorial jurisdiction, election, and service."35 That interpretation is logical and easy ro embrace. I am nor agajnst it. It narurally falls into place if the intent of the amendment was (Q adopt the dissenting view in the case law. Judge Stewart is nor alone in his belief that this was part of the intent. I merely submit that this intent is difficult m find in the language. 28 The Arkansas Lawyer

WMV aMJarcom

I also submit that if this is the proper interpretation, then it becomes a real chore to fashion a plan calling for any district courts to have overlapping jurisdictions, unless, in those geographic areas, a venue rule is imposed. Otherwise, there will be the appearance of revenue-oriented coun selection, at least in some instances. History teaches that traffic cases will be the focal point of forum-shopping allegations. If Amendment 80's intent was to repeal county\vide jurisdiction, then surely its intent also was to eliminate "the specter of improper forum-shopping."jG The end of having a judge sit primari/yon cases arising from areas consisting of his electors is achievable. But in my opinion, Amendment 80 alone did not achieve this end. The General Assembly may enact legislation establishing district court jurisdiction coextensive only with their respective districts. Unless it does so, I submit that county\vide jurisdiction (district-wide in the ten counties named in Note I) will continue to be the rule. Even if it does so, there is the possibility for some overlapping jurisdictions, such as areas in which one judge is elected countywide and one or more others elected citywide. Arguably, a joint reading of Sections 10, 3, and 4, reAect a grant ro the Supreme Court of express concurrent authority with the legislature over venue. While venue statutes are sprinkled throughout the state and federal codes,37 venue also may be the topic of procedural rules. 38 There is no statute mandating venue for criminal cases in district courts. Absent a statute in an area of concurrent authority, the Court may promulgate a rule. The Attorney General, by a directive co all prosecutors, could accomplish the desired end less formally. If 2005 finds any of our state's district courts with overlapping jurisdictions, then a venue statute, rule of court, or prosecutorial edict will be needed to bring about optimum fairness, to make things cricker. SUBJECT MAlTER JURISDICTION

The new district courts are to be "trial courtS of limited jurisdiction as to amount and subject marrer, subject to the right of appeal to Circuit Courts for a trial de novo."39 Limited subject matter jurisdiction, borh civil and criminal, reflects the status quo, along with a civil case "jurisdictional amounr" ($5,00040), within which jurisdiction has been concurrent with

CirCUit courts. However, the new district CourtS jurisdictional amount and subject matter of civil cases "shall be established by Supreme Court rule."41 This is new. Determination of civil jurisdiction will be the exclusive province of the Supreme Court. Effecting changes in this area will henceforth involve a different process42 from that of passing legislation. Depending on how the Court chooses to employ this power, significant changes are possible at the inferior court level: Circuit court backlog. Civil cases that have caused circuit court backlogs may merit concurrent jurisdiction in d.istrict court. This is certainly the type of problem that Amendment 80 was intended to solve. This might be more appropriately accomplished by administrative orders on a circuit by circuit basis, according to the needs in geographic areas. Rral <StaU cos"- Ark. Code Ann. ยง 16-17206(3)'S provision that "Municipal courts shall not have jurisdiction in civil cases where a lien on land or tirle or possession thereto is involved" is arguably at odds with the provision that the Supreme Court may "establish" subject matter jurisdiction of d.istrict court civil cases. This statute, thus, may impliedly have been repealed, portending that district courts might be accorded jurisdiction in real estate matters. Case law suggestS that there is precedent for a court rule to override a statute in matters of practice and procedure, but nOt in areas of substance, such as the conferring of subject matter jurisdjction. 43 However, the Constitution itself now gives the Court the authority to confer civil subject matter jurisdiction. Felonies. District courts are to have original jurisdiction over misdemeanors and "such other criminal jurisdiction as may be provided pursuant to Section 10 of this Amendment."44 Under the repealed judicial article of the 1874 Constitution, municipal courts were without jurisdiction to try felony cases. 45 It is now plausible that some degree of felony jurisdiction will devolve upon district courts. Especially given the model of United States Magistrate Courts, it makes sense that felony defendants be allowed CO enter guilty pleas and be sentenced in district court. It also makes sense that a felony defendant be allowed to plead not guilty in district court, with the case then passing expeditiously to a circuit judge's trial docket. Why arraign a

defendanr twice? Bond set by a district court would be subject to review by the circuit coun Disrrict judges could even be employed to handle pre-trial discovery and evidentiary matters, an innovation that could enhance efficiency and expedite case progress. especially in rural areas where circuit judges are not in court on a daily basis. JURY TRIAlS?

May the Supreme Coun empower district couns to hold jury trials, thus overriding Ark. Code Ann. §16-17-703's provision that "There shall be no jury trials in municipal coun"? The answer to this question will hinge on how the phrase "subject to the righl of appeal to Circuit Courts for a trial de novo" in Section 7(B) is interpreted, as well as whether the implementation of jury trials might be considered 3 m3[[er of practice or fall within the realm of general superintending control. To characterize the right to trial by jury as a matter of practice that would be subject to the court'S superintending authotity is probably out of kiltet wilh the spirit of the common law. It assuredly has always been assumed that only the legislature has the authority ro grant or encroach upon this vital right. In my opinion. the legislature could authorize jury trials in district Couct. and has had the power so to do in the past, but has never chosen to do so, but the Supreme Coun could not. Amendmenr 80 does not seem inconsiSlem with §16-17-703. In specifYing "trial de novo" as the appellate right at the circuit court level, Amendment 80 perpetuates the doctrine that has sustained me statutory scheme: of exclusively bench trials at the inferior court level. 46 In my opinion, no one has a right to dnnand that jury trials be available in district courts. since the right to jury trial is preserved at the circuit Court level on appeal. If, in some manner, jury trials were allowed in district courts, other issues arise. Maya de novo appeal to circuit court be something less than another trial? Could a district court jury trial be reviewed by a circuit court on the record, in the de novo manner that chancery matters are reviewed by the appellate courts? (Chancery matters, of course, were always bench trials.) Is the right to a trial de novo in circuit coun waivable in the event litigants opt for a jury trial in district coun and, if so, then might an appeal to circuit be handled on less than

a de novo standard of review? Pondering the potential, 1 can only envision mat many of us may have to become more willing ro work with others in circumstances where we have been accustomed ro working without Q[hers. The need for common sense and practical wisdom was nOt repealed by Amendment 80. or was the appropriateness of teamwork and creativity in the judicial process. CoNCLUSION

Admittedly, the foregoing discussion raises more questions than it provides answers. But the issues raised in this article are concerned with the grass roots of the judicial system and. as such, deserve the anention of the entire bar. The passage of Amendment 80 was a watershed event. \Vhether you are or are not a regular practitioner in district Court, I urge you to reAect on the discussion above and get involved, a dividing point between how things used to be and how they should be. We, the legal profession of Arkansas, have an awesome opportunity and responsibility co re-build a court system. We know the areas that have evoked substantial criticism in the past. If we do not learn from the negative lessons of history, to rwist and adage, we are destined to go there again. Let's all get involved and build Arkansas's new district court system with intelligence, common sense, and pride. Let'S make it work. Let's make it be and appear to be cricktt in every respect. These endnotes were inadvertently printed in the first part of this article published in the Fall 200 I ArkallSm Lawy<r.

Endnores 28-46 28 The lerm g<ographical aua (§ 16(D)) is, if nothing else. a far less definitive term than analogous nouns of common usage (ciry. township, county. district, tu.). It seems intended ro provide Aexibility in areas where the case law has disallowed reasoned solutions to practical problems - such as where a city is located on a county line without abrogating the provision that there be at least one COlift per county. It will be inreresting ro see how rhat term develops. While I have omitted any significant

discussion of this secrion in the text, suffice it to say that, somehow, this section factors inro me reasoning of those who hold lhal Amendment 80 repealed countywide jurisdiction of municipal courts. 29 For those who argue that Amendment 80 repealed countywide jurisdiction, the phrase majority of <keton within tht district tluy snt/t triggers a thought pattern envisioning a boundary within which all vorers (in the judge's election) live and within which a crime must occur for that judge to have jurisdiction over the perpetrator. However, I believe this section's sole significance lies in its changing me electoral quantum, from plurality to majority, for district Court judges. 30 Black's Law Dictionary (5th ed. 1979) states that the word jurisdiction "is a term of large and comprehensive import" and provides over a page of definitions for the word and for phrases encompassing the word. Perhaps the most accurate nuclear definition. however, is "the lega] right by which judges exercise their authority." Although it may be error to do so, I avoid extensive definition of this basic term, assuming the reader to know and understand the basic distinctions among in personam. in rem, and subject matter jurisdiction. 31 Suid. 32 Section 10 provides that the legislature is to establish districts and the appropriate number of judges for each, districts to be composed of "contiguous territories." This, read with Section 7(D) ("A District Judge may serve in one or more counties") vis-a-vis jonts. fupra. ore 13, and Sexson, supra. ote 13, addresses the need in cities on county lines. 33 Ark. Code Ann. § 14-56-413 (Rep!. 1998). 34 Su NOle 26, s"pra. 35 Judge Slewan graciously agreed 10 be quoted in this article. Quotes attributed to him are from private correspondence in August 200 I. 36 \V<bb, "'pro NOle 13, 323 Ark. at 87 (Hickman, dissenting). 37 E.g., Ark. Code Ann. §§ 5-2-317 (venue for some persons committed 10 DHS custody "may be in" Pulaski Probate, Ninth Division"; for some who've been conditionally released,

Vol. 37 No. I/Winter 2002

n,e Arkansas Lawyer

29

"shall be in" probate court of the COUllI:}'

promulgation of a rule is, as best I can tell, not reduced to a formulaic process. Thus, any suggestion I might make regarding how to employ it would be speculative. There are committees in place as to most sets of rules, and membership of those committees is a matter of public record.

where the person currendy

resides); 16-60-109 (contract actions against nonresident may

be in coum)'

of plaimiff's residence when claim

arose); 16-60-202 (no venue change in civil actions unless necessary for

impartial trial); 23-32-1505 ("foreign investor companies" may sue and be sued in couney of residence of any

parry

[Q

43

the suit; where land is

involved, venue shall be in the county

where land is located); 28-40-102 (venue for probate and administration

44 45

of will); 28-65-202 (venue for appointment of guardian); 28 U.s.c. §§ 1391 (genetal venue stature for all civil actions in United Stares District

Court); 1965 (venue in RJCO cases); 47 U.S.c. § 227(F)(4) (venue fot

46

Su Srau v. Lmrr, 343 Ark. 662, 38 S.W.3d 318 (2001); Curris v. Srau, 301 Ark. 208, 783 S.W.2d 47 (1990). Ark. Const., Amend. 80, §7(B). Su McCr<w v. Srau, 338 Ark. 30, 991 S.W.2d 588 (1999); McArrhur v. Pulaski County Circuil COlirI, 253 Ark. 501, 504 488 S.W.2d 5 (1972). Su Stau v. Robms, 321 Ark. 31, 900 S.w. 2d 175 (1995).

states ro file civil acrions against

unlawful telephone solicirors). This

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list is far from complete. Searches for venue on electronic legal research

How can we help you today?

servers produce dozens ofstatuces that contain the word.

38

E.g., ER. Cr. P. 18: "Except as SERVlCFS WE PROVIDE:

ocherwise permitted by statute or by these rules. the prosecution shall be had in a district in which the offense was committed. The coun shall fix the place of trial within the district with due regard to the convenience of the defendam and the witnesses and the prompt administration of justice." A search of Arkansas coun rules for IJmue reflects only seven that comain

• Case Management • Trial Preparation • Appellate Work • Research • Legal Writing • Document Drafting • Speech Drafting • Office and Case Organization • Discovery Preparation • Analyzing Cases to Identify Potential Claims

the word: A.R. Ct. P. 21.3 (two or morc offenses are "'relared" if, inter alia, "'within rhe jurisdiction and venue" of same coun); 24.8 (when pleading [Q offenses committed in other jurisdictions, defenda.lH requesting transfer of charges is deemed to waive "'venue as to an offense committed in another governmemal unit of the state"); A.R.

Inf. Ct. 2 ("These rules shall nor be construed to extend or affecr the jurisdiction of the inferior courts ...or the venue of actions therein"); A. R. Civ. P. 8, 12, & 82: and Procedures of

the Cr. Reg. Prof. Conduct §5 (venue for attorney disbarmenr proceedings).

39 40 41

Ark. Const., Amend. 80, §7(A). Ark. Const., Amend. 64; Ark. Code Ann. 16-17-704 (1999 Supp.). Atk. Const., Anlend. 80, §7(B).

42

The process for the Supreme Coun's

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33

Book Rcvicl,v

BLOOD IN THEIR EyES

by Grif Stockley Reviewed by: John

P. Gill

I miss Gideon Page, the hero of Grif Stockley's previous novels. Gideon Page is my kind of lawyer - standing alone against the odds, against the establishment and winning for the little guy. That is what mainstream Arkansas lawyers do today. So Blood in Their Eyes is required reading for every Arkansas lawyer, because this time Grif Stockley reviews the work of a real Gideon Page, a black lawyer named Scipio Jones who read law to become licensed and became one of Arkansas' outstanding lawyers. Jones is credited with one of the mOSt important cases in American history, Moore v. Dempsey 261 U.S. 86(1923), and standing aJone many times, saved the lives of 12 innocent, albeit convicted, black sharecroppers from Elaine, Arkansas. The Elaine race riot, as history until now has called it. is an awful blemish on Arkansas history. It is such a blemish that most historians have treated it lightly or shied away from it. But Grif Stockley, an outstanding Arkansas la"")'er in his own right, is not known for shying away from much of anything, and he tackles the issue head on in his first writing on Arkansas history. In typical lawyer fashion Srocldey analyzes the factS and writes his brief in Blood in Their Eyes. The death roll of white citizens is easily verified from the courr and newspaper records. Five men were killed. According to the trial transcripts, affidavits, and research by Stockley, some of the white 34 The Arkansas Lawyer

WMN.arkbar.aJm

men were apparently killed by other white men in their frenzy to shoot black citizens of Phillips County. The black death toll has never been verified, and even Stockley's laborious analysis of the facts fails to document the number. It is somewhere between 20 and 856: the tOtal will likely never be known. But Srockley, exhibiting his experience as a lawyer, analyzes the facts and identifies the events as a massacre, not a riot, because even 20 deaths fit that description in the events Stockley brings to light, namely, shooting unarmed blacks with their hands in me air, and burying many in unmarked graves. Without saying so, Srockley's description of the events matches those recently reported in Bosnia and Kosovo. Blood in Their Eyes reports the events which started on the night of September 30, 1919 at the Hopp Spur Church in Phillips County, near Elaine, Arkansas, where a group of black sharecroppers had gathered for a meeting of the Progressive Farmers and Household Union. Farming conditions in the Arkansas Delta in 1919 are nOt what they are today, and the sharecroppers, with grievances over cotton prices paid by their white landlords, attended the meeting. Why armed guards were posted outside me church is unclear. An autOmobile carrying a Deputy Sheriff, a Railroad Detective for the Missouri Pacific, and a Trustee from the Phillips County Jail stopped in front of me church about 11 :00 p.m. and the shooting started. Who shot first and why is unclear, but Stockley gives a triaJ lawyers' analysis of the questions and answers. When the shooting stopped, a white peace officer was dead. By morning hundreds, perhaps thousands, of armed men from both sides of the Mississippi River converged on Elaine, and a group of armed blacks exchanged gunfire. The following day battle-hardened veterans from the batrle of the Marne stationed at Camp Pike arrived, with Governor Charles Borough in the lead. Blood in Their Eyes sorts out many of the historical reporrs of this event, and StOckley disagrees with many of them unsupported by the evidence. But, his astonishing conclusion that me Camp Pike veterans themselves participated in the slaughter of innocent American Citizens is a new

chapter in this tragic event. Twelve sharecroppers were tried for murder of five whites (no whites were arrested), and Stocldey laboriously reviewed trial transcripts, Supreme Court briefs, correspondence, and court opinions to find historical facts and support his writing. His legal analysis is a new and very much needed addition to the reports of other historians. In several instances he demonstrates the power of circumstantial evidence, and throughout his book, Stockley demonstrates his outstanding skills as a lawyer in this analysis of the records. Perhaps if historians had started where Stockley excels, much of the written history of this event would be different. No lawyer, nor anyone else who loves freedom in a democratic sociery, can read these events without getting sick to their stomach. American Citizens were tried for murder in an Arkansas courtroom less than 30 days after their arrest, defended predominately by attorneys who called no witnesses, failed to strike any juror for bias, and in general make no closing arguments. The jury was out for eight minutes on the first trial. As many as three separate trials are held by the same judge in a single day. and all defendanr's were found guilty and sentenced to death. One of the Defendant's attorneys later urged me Governor to carry out the death sentences. A muSt read portion of the book IS Stockley's cross examination-like juxtaposition of Prosecutor John Miller's statemems in 1919 and his later statements as a retired U.S. District Judge. The Arkansas Supreme Court affirmed all of the convictions, and the fictional Gideon Page never had rhe challenges that the real life Scipio Jones experienced. Jones was not hired until late November, after all 12 have been convicted. He was retained by black Little Rock citizens to work with a white attorney George W. Murphy, employed by the NAACP, and later as cocounsel wim Edgar L. McHaney, anomer white attorney. Although he was prohibited from arguing the case, it was through Jones' efforts, that Moore I). Dempsey, for the first

See Book Review continued on page 4 I

Book Review ON TRIAL:

LESSONS FROM A LIFETIME

IN THE COURTROOM

by Henry G. Miller, Esq. Reviewed by Alsron Jennings

To Parents, Siblings. Spouses, Other Relatives and Friends: This book is the perfect law school graduation present. To the Law School Graduates: If no one else springs, buy it yourself. To Those Who Are, Would Be, or Were Trial Lawyers: You must own a book about your profession that has been acclaimed by lawyers of the caliber of David Boies, Johnnie L. Cochran, Jr., Alan M. Dershowirz and Robert B. Fiske, Jr. To All Those Who Wonder How Lawyers Can Sleep ar Night: Ger a look ar how we rick and, perhaps, view us a little more kindly. Henry Miller is an eminent trial lawyer who has spent the better pan of 40 years in courtrooms. Bur this book is not the product of that experience alone. Henry Miller says he is a student as well as a teacher. "I have borrowed, cited, quored and stolen so much from other trial lawyers, that I am reminded of rhe old quip: plagiarism among lav.ryers IS called research. " I was particularly pleased to learn that Mr. Miller shared my admiration for such former giants of the New York trial bar as Harry Gair, Emile Zola Berman and Jack Fuchsberg.

This book is an excellem rool for lawyers new to the court room. It tells the beginner to "be yourself," but "forget yourself" Then comes tip number three: Tell Them It's Your First Case. 'I'm sorry, Mr. Foreman, I didn't mean to hand you the document. It's my first trial.' 'Oh, forgive me, Judge, I forgot to stand. It's my first trial.' It's a hard-hearted jury who will hurt you in your first trial. With a little ingenuity, you can use this line a few times. 'Oh, it's my first criminal case.' 'My first arbitration.' 'My first case in Brooklyn.' However, it's considered bad form and against our union rule to use the line more than five times. Thereafter, Mr. Miller dissects the trial of a lawsuit into its various components and tells the trial lawyer what to do and what not to do at each phase. Is there something in this book for the experienced trial lawyer? By way of example, I realized that in 54 years of trying lawsuits, I had never had the court reporter record and transcribe the opening statement of my opponent. On how many occasions did I miss the opporcunity to read to the jury during summation what my opponent had promised in opening to prove, bur hadn't? My malpractice insurer prefers thar I not suggest that some losses might have been wins. Even the old dog who can', be raught will benefit from exposure to the amhor's style, wit and command of the language. This book is about more than how to try a lawsuit. It is also about character. It urges

us to be proud without falling victim to pride; it preaches humility to those of us who have much to be humble about; it tells us ro look defeat in the eye while remaining unconquered, and it might even tempt one's opponent to mend his ways. Reading this book will make a client a better client; it will make a witness, especially an expert, a better witness; and it will make every trial lawyer even prouder of his profession. Henry Mil1er is a personal friend, and someone will probably recall that I have said that I have no respect for a person who would nor lie for a friend. Be assured that this book review is not linked in any way to that philosophy. This is a good book!

Alstoll }etmillgs is Of COllnsel at Wrigbt, a"d Lindsey Jennings in Little Rock alld works witb the Alsto" Jennings Foundauon Board of Directors. He has been listed a11l01lg the Best Lawyers in America for 1995-2002.

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Vol. 37 No. IIWinler 2002

TIle Arkansas lawyer

3S

ludicial DisCiplinary Actions All Judicial Disciplinary Actions are written and provided by the Judicial Discipline and Disability Commission. Full texts are available online at wwwaccessarkansas.org/jddc JUDICIAL SANCTIONS September 21, 2001 Honorable William P. Rainey District judge P.O. Box 776 West Memphis, AR 72303 Re: Case # 01-133 Dear judge Rainey, At its meeting on September 21, 200 I, the Judicial Discipline and Disability Commission decided to issue a letter of admonishment [Q you in complaim number 01-133. After a review of the complaint, your responses, the results of it investigation, and other material, the Commission determined that you violated rhe Code of judicial Conduct. The Commission found that on January 14, 2001 a young female defendant appeared before you. In a crowded courtroom, while chastising the defendant,

you stated "Your behavior is that of a common crack whore". In another case on the same date, another female defendant charged with prostitution appeared before you. Addressing the defendant, you asked "How is business? Is business good these days ?" . When the defendant did nOt respond, you stated "There is no reason [Q be ashamed. You were not ashamed jumping in and out of trucks having sex with men. The men in this courtroom do not want to have sex with you. You indicated in your response to the complaint that both of these persons had been repeat offenders and that previous punishment had not been effective in preveming future offenses. You stated that it was your goal to bring home squarely to these persons the extent of their continued criminal violations. Although you believed that such language would have the salutary effect of preventing further criminal

violations, the Commission disagrees. Your language was nO[ appropriate and fails [Q comport with the requiremems of the Code of Judicial Conduct that a judge be patienr, dignified and courteous, and maintain proper decorum in the courtroom.

September 21, 2001 Honorable Robert Batton Jacksonville District Court 1414 West Main jacksonville, AR 72076 RE: Letter of Admonishment, Case #00-256 Dear judge Batton: During the Seprember 2\,200 \ meering, the judicial Discipline & Disabiliry Commission decided to issue a letter of admonishment to you in complainc #00256. After careful review of the complaint and the accompanying investigation, the Commission determined you had violated the Code of judicial Conduct,

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ludiciJI Discip1inJ'Y Actions The Judicial Disciplinary Actions are written alld provided by the Judicial Discipline alld Disability Commissioll. While serving as a part-time municipal cou" judge in Pulaski County (6 th judicial Circuit), you presided over criminal cases in which rhe State of Arkansas was represented by rhe Prosecuring Anomer of Pulaski County. At the same time ftOm 1999 - 2001 you represented approximately 17 criminal defendaIHs in Pulaski County Circuit Court wherein rhe opposing parry (the State of Arkansas) was represented by rhe Prosecuting Anorner of Pulaski County. Such action creates rhe appearance of impropriety and must be avoided in order to be in confotmity with Canon 2(A) of the Code of Judicial Conduct and to cnsure public confidence in the judicial system. The operative ethical principle involved in this matrer was set out and explained on April 30, 1998 in judicial Ethics Advisoty Opinion #98-02. That opinion, in parr, states: ". . .an individual who accepts the position of a continuing parr-time judge places the judicial office first in service and

priority, and cenain restrictions must follow. It is, we believe, selfevident that a municipal judge who is engaged in an adversariaJ role opposing a prosecuting attorney in a criminal case brought by the State and who presides over proceedings involving that JUDICIAL RESIGNATION AND AGREEMENT August 8, 2001 Judge Roy Thomas

Batesville Municipal Court The Judicial Discipline and Disability Commission today announced the resignation of Batesville Municipal Coun Judge Roy Thomas to be effective OctOber 01, 200 I. judge Thomas has agreed to resign volunrarily and to abide by the terms of Act 5 of 200 I regarding furure service in tbe Arkansas judiciary. A copy of the judge's resignation letter to Governor Huckabee is

attached. On May 31,2001 a formal statement of charges was served on Judge Thomas. Later Judge Thomas filed an answer to those charges and a Formal Disciplinary Hearing was scheduled for Wednesday, August 22. With his resignation and agreement to voluntarily abide by dle terms of Act 5 of 200 I, that is [Q not serve again in the Arkansas Judiciary, the Formal Disciplinary Hearing has been cancelled. The judicial Discipline and Disability Commission believes there is clear and convincing evidence to subscantiare the pending charges against Judge Thomas. While in his answer to those charges Judge Thomas admits to some of the charges, no findings of fact or conclusions of law have been made in this casco It is anticipated that no funher action in this matter will be necessary.

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n,e Arkansas lawyer

37

Lawyer Disciplinary Actions Tile Lawyer Disciplillary ACiiolls are wrillell alld prm'ided by tile SlIpreme COlin ofArkallsas路 Commillee 011 Professional COllduct.

The following summaries of disciplinary actions are provided by the Office of Professional Programs at the Supreme Courr of Arkansas. The complete opinions since

July 27,200 I are available on the Internet at http://courrs.state.ar.us/courrs/cpc_decision s.html. Full-text paper copies of all artorney disciplinary decisions are available from the

Office of the Clerk of the Courts, Justice Building, 625 Marshall Street, Litde Rock, 7220 I, at a fee of 50 cents per page.

2001, on violations of Model Rules 1.2(a), 1.3, 1.4(a), I. 15(a), 1.16(d), 5.5(a), and 8.4(c), in maners involving a formal complaint of c1iem Linda Wilbur and pending informal complaints of a number of other clients whom he failed to timely and properly represent in their legal matters after accepting fees from them.

Arkansas. Davis was convicted by a jury of three

L. GRIDER #74064, Arkansas. SURRENDER accepted 11-01-200 I, on violation of Model Rules 8.4(b), 8.4(c), and 8.4(d), in marters involving participation in a scheme and course of conduct in association with anorney Nick Wilson that led to convictions in 1999 and a later guilty plea in early 2000 in case o. LR-CR-99-61 in the United States District Court for the Eastern District of Arkansas on felony charges related to tax evasion and racketeering.

drug-related felonies on 07-13-99. On 0924-99 he entered pleas of guilty ro one drug-

CARL FREDRICK MOYER, #90067,

[Note: Beginning with this issue, public sanctions will be reponed here in summarized form for space considerations.]

DISBARMENTS: ALBERT WAYNE DAVIS #76026 formerly of Litde Rock, now of Batesville,

related felony and no COntest ro another such felony. The Committee initiated disbarment proceedings in Pulaski Circuit Coun. The decision of the circuit coun was appealed to the Supreme Court, which granted the disbarment petition.

DISBARRED 10-04-200 I for violations of Model Rule 8.4(b). JAMES GUY TUCKER, JR. #68067, Little

Rock,

Arkansas.

A

disbarment

MURREY Pocahontas,

formerly of Green Forest and Monticello, Arkansas, now of South Carolina.

URRENDER accepted 11-01-2001, on violations of Model Rules 1.1, 1.2(a), 1.3, 1.4(a), 1.16, 3.2, 3.3(a)(I), 3.4(d), 8.4(c), and 8.4(d), in maners involving a judicial referral on behalf of c1iem Timothy Campbell, a complaint from diems Michael and Tammy Warner, and a Per Curiam in the case of Joe Boblett v. State of Arkansas, involving failure to perfect a criminal appeal

complaint was filed 11-23-1999, stating

in 1998.

Attorney had been convicted of twO felonies (conspiracy to defraud and mail fraud) in the United States District Court for the

MARION DOUG WOOD, JR. #74155, Sherwood, Arkansas. On 08-15-99 Attorney

Eastern Dimicr of Arkansas on May 28, 1996, and entered a guilty plea to a third felony (conspiracy

to

defraud functions of

the IRS) in the same court on 02-20-1998. Attorney entered into an Agreed Order of Disbarment in Pulaski Circuit Court, based

on violations of Model Rules 8.4(b), 8.4(c) and 8.4(d), and the Supreme Court ordered DISBARMENT 11-08-2001.

was convicted by a jury on 10 counts of conspiracy and mail fraud in United States District Coun in the Eastern District of Louisiana, 111 a case involving his management participation in an insurance

company. After all appeals were exhausted, SURRENDER accepred 09-20-2001, on violation of Model Rule 8.4(b).

"""", arlW'

-Xl'

complaint on 12-17-98, bur failed ro respond, which constitutes an admission of the factual allegations under Committee Procedures. SUSPENDED ONE (I) YEAR for violaring Model Rules 1.1, 1.2(a), 1.3

and 3.4(c). Artorney could nor be found ro serve the suspension order on her until May 200 I. After reconsideration proceedings initiated by Anorney, rhe suspension was confirmed, to be effective for one year from

10-10-01. JOHN LEE KEARNEY #74090, Pine BlulT, Arkansas. Complaint filed 12-012000 alleging Attorney failed to file a timely notice of appeal in 1998 in the matter of

Herman Folk v. State of Arkansas, CR 991319. Appellant filed a pro se motion for belated appeal. Anorney was provided with a copy of the motion and was requested to provide an affidavit in response bur failed to

due so. In a Per Curiam 10-30-2000, the Supreme Coun referred the matter to the Committee. Prior to the commencemem of a public hearing, Anomey offered and the

ommittee accepted a CO SE T to a 30 DAY SUSPENSION with 15 MO THS PROBATION 10-2-200 I for violations of Model Rules 1.1, 1.2, 1.3, 3.2 & 8.4(d). OSCAR STILLEY #91096, Fort Smith, Arkansas. Complaint filed 08-17-2000 by attorney Abraham Bogoslavsky, who represemed individuals who were sued by

P. HOGROBROOKS HEATHER #92029, formerly of Forrest City and West

lawsuit was dismissed, complainant sued Stilley and his client Speed for malicious prosecution. During the malicious prosecution action, anorney represented

Memphis, Arkansas, now of Memphis,

himself and Mr. Speed, as codefendants,

SURRENDERS:

38 The Arkansas l.a\\yer

ovember 13-19, 1996, Hunts case was dismissed with prejudice. Attorney signed for the disciplinary

Stilley on behalf of John Speed. After that SUSPENSIONS:

DAVID B. FULLER #94029, Bentonville, Arkansas. SURRE DER accepted 11-01-

Tennessee. In late 1995 Attorney undertook to represent Kenneth Hunt in civil litigation in the United States District Court for the Eastern District of Arkansas. Attorney failed to request a jury trial, despite complainant's requests. Attorney flIed motions after the court's scheduling order. Attorney Failed to take appropriate efforts to conduct discovery. After trial on

Lawyer Disciplinary Actions even though advised in writing by (wo attorneys that a conflict was present. Attorney advised Complainam that Mr. Speed had waived the conflict, which M f.

issued a citation in 1997 for that conduct. Attorney failed to comply with outside income reporting requirements for 1993,

PATRICIA MADDOX-COOK #92064, Blyeheville, Arkansas. Complaine filed in Apeil 2001, alleging Anomey, while

1994 and 1996. Anomey also knowingly

Speed

failed to pay his 1994 personaJ income tax. The Supreme Court removed attorney from

representing a woman in a divorce, made unauthorized handwritten aJterations ro a divorce decree signed by the judge in January 2001, to restore her diem to a ptevious name. The name used was incorrect, and thereafter a retyped decree with a second former name appeared of record. Attorney claimed the first aJteration was made before rhe decree was presented to the judge, and that she made an error in judgment when she retyped the decree to clean it up for the client and to insert the correct former name. Attorney offered the Executive Director a consent to discipline for a reprimand, which was accepted by [he

dispured

111

the

disciplinary

proceeding. In addition, when presented a certain pre-trial settlement offer anomey

falsely told complainant ehae Me. Speed had declined the offer, when the offer was nor communicated to the diem. Shonly before trial Stilley gave Speed a written indemnification against any judgment that might be rendered against Speed at trial, so Speed would not obtain his own trial counsel. At trial Stilley was dismissed as a defendant by me court and rhe jury gave a

ehe

bench

in

May

2000.

Prioe

ro

commencement of a public hearing on 0920-2001, Attorney offered to consent to a suspension of 120 days, which was accepted

by che Commieree. SUSPENDED FOR 120 DAYS EFFECTIVE 12-01-2001, foe violaeing Model Rules 1.15(a) and 8.4(b). [Note: Committee jurisdiction over all other

alleged Model Rules violaeions was found by

$200,000 judgment agains< Speed. Afeee Seilley was reeminaeed by Speed, Seilley

the Committee to have been merged into the action taken by the JudiciaJ Discipline and Disability Commission under its Rule

continued to purse an appeal on behalf of

6.B.]

Commieree. REPRIMAND 10-05-2001 foe violaeing Model Rules 1.1 and 8.4(c) .

Me. Speed even chough Me. Speed did nor authorize him

[Q

do so. Later litigation held

Pocahontas, Arkansas. Based on a complaint

failed to do so, in spite of receiving a legal

filed 03-02-2001, ie was alleged chae foe a

LINDA OAKLEY BOWLIN #84170,

fee of aboue $538,000 in mid-2000 in

period of six months before she stopped it,

another case, which funds he used for other

Anomey paid illegal kickbacks and illegally

pucposes. 30 DAY SUSPENSION 10-012001 foe violaeing Model Rules 1. (a), 1.16(a), 3.7, 8.4(c) & 8.4(d), and paymen< of $270 coses.

split fees regarding attorney's work for the child support enforcement unit, as pan of a matter involving attorneys Murrey Grider and Nick Wilson. Upon being served with the formaJ complaint, Attorney offered to accept a reprimand for improper division of

MORRIS W. THOMPSON #80145, Litde Rock, Aekansas. The Arkansas Supreme Court referred this matter to t.he Committee

on 05-10-2000. While a Ciecuie Judge,

â&#x20AC;˘

REPRIMANDS:

Stilley was required to pay the judgment entered against Mr. Speed pursuant to the terms of an Indemnity Agreement. He has

Attorney was investigated by the Judicial Discipline and Disability Commission for various instances of misconduct. Having no truSt account in late 1992, Attorney placed funds belonging to at least six clients into his law office operating account. Checks drawn on that account for paymenr of cliems' medical bills were rerurned due to

fees wi th another attorney. which offer the Alternate Committee on Professional

Conduce approved. CONSENT REPRIMAND 10-19-2001 foe violaeing Model Rule 1.5(e). TONA MARIE DEMERS #91024, Liede Rock, Arkansas. Complain< filed 10-232000 alleging Accomey failed ro eimely file a

GENE E. MCKISSIC #76075, Pine Bluff, Arkansas. Supeeme Couce refeccal filed 0322-2001 Attorney represented Brian Gooden in Jefferson County Circuit Court in 1995. Following revocation of probation, attorney filed a timely notice of appeaJ but did nO{ perfect the appeal. A motion co withdraw was filed but no order to withdraw was obtained and filed. In 2000, appellant filed a pro se Motion for Belated Appeal. The Arkansas Supreme Court granted the motion and ordered the case remanded to circuit court for an evidentiary hearing on certain issues. REPRlMAND

10-3-200 I foe violacion of Model Rules 1.3 and 8.4(d). [Nore: This case is on appeal from the Committee to the Arkansas Supreme Coun on the Commirtee's deniaJ of Attorney's Petition for Reconsideration.]

Motion to Contest the Will and Set Aside previous Orders of the Court. The motion

CHRISTOPHER C. MERCER, JR. #540 I 0, Liede Rock, Aekansas. Complain< filed 08-30-2000 by Janice Walkee alleged

ehe Judicial Discipline and Disabiliey

was apparently sent by Attorney to the wrong county for filing. In the correct court,

she was involved in a motor vehicle accident, and was directly contacted at home by a non-lawyer represemarive of attorney's law firm the day after the accident for [he purpose of soliciting employment. Complainant never employed attorney, and, in fact, stated she had dedined to employ Anomer the day after the contact. Attorney informed insurance company that he

insufficient funds. Attorney testified before Commission that clients were at no time

the relief sought was later found to be time¡

depeived of use funds belonging to chern.

baned. Accomey appealed ehe Couce's denial

Attorney continued to engage in the

of her Motion ro Set Aside Order, and the

practice of law after taking judicial office in 1993. He failed to honor and pay a written

Court of Appeals affirmed, its opinion bringing this matter to the Committee's

subrogation agreement. He placed fictitious

aneneion. REPRIMAND 10-12-2001 foe violating Model Rules 1.1, 1.3, and 8.4(d).

license plate tags on his automobile and was

Vol. 37 No. I/Winler 2002

The Arkansas La\\ycr

39

Lawyer Disciplinary Actions represents complainant. on a 25% contingency basis. and asserted a lien of $1,385 against any serrlemenr proceeds. He claimed a relative of complainant brought him inco the case, complainanr retained him, but that there was no weinen contract. Anomey's misrepresemarions led co delay in scrdemcnr of complainant's claims. REPRIMAND 07-27-2001 (or violating Model Rules 8.4(a), 8.4(c), and 8.4(d).

of the continuing nature of attOrney's conduct. complainants believed it was necessary for the Committee to have an opporruniry to consider the complained of incidenes. Prior to a public hearing in this matter. Anorney offered accept a reprimand by consem to discipline and the Committee approved. REPRIMAND 10-17-2001 (or violating Model Rules !.I, 1.3, 1.4(a), 3.1, 3.2, 3.3(a)(I), 4.4, and 8.4(c).

CHARLIE LEE RUDD #89087, Hot Springs, Arkansas. Complainr filed by a judicial officcr 12-22-2000 alleged Attorney received funds from a client intended to be restitution payment to a third person and failed co deposit the money into a client trust accoulH. Anomey wrote a check from his office account (Q pay the victim, Kathcart, but the check was returned due [0 insufficiem funds. Anomer claimed he did nor deposit the funds into a trust accoune because he was waiting for instructions from the court clerk's office on what to do with the money. REPRIMAND 07-27-2001 (or violation o( Model Rules 1.15(a), 1.15(b), 8.4(c), and 8.4(d).

SAM WHITFIELD, jR. #82056, Helena, Arkansas. A judicial complaint from Circuit Judge Harold Erwin o( Newport alleged Attorney failed to appear without notice or excuse for a felony jury trial in Jackson County ircuit Court on 02 02-200 I, when his c1iem, Terry Lynn Williams did appear. The 55 member panel had to be sene home and paid a total o( S825.00 by the counry. Attorney responded with meneion of various things going on in his life at the time but did nor dispute he had knowledge of the trial setting. Following service of the formal complaint. Anorney offered to consene to discipline. After negotiation with the Executive Director, Anorney agreed to accept a reprimand and make restitution of S825.00 to Jackson County (or the cost o( the jury. The offer was approved by the Alrernate Comminee on Professional Conduct. REPRIMAND 11-01-2001 (or violating Model Rules 3.2, 3.4(c), and 8.4(d), and RESTITUTION o( S825.00 ordered, and paid in (ull.

OSCAR STILLEY #91096, Fort Smith, Arkansas. Complaint filed 08-29-2000 by Fort Smith attorneys Jerry Canfield and Wyman R. Wade, Jr., for misuse o( legal process, for bringing frivolous lawsuits. for alleging factually irrelevam manerS in his lawsuits, for failing to timely comply with Court Orders. and for filing suit for an individual who had not hired him. Because

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CAUTIO S: RALPH JOHN BLAGG #73178, Clinton, Arkansas. Complaint filed 02-28-200 I alleged Anorney appeared in Maumelle Municipal Court before judge Pake on 122 t -2000. a trial date reset at Anorney's request. Atrorney's out-of-state college srudenr client was not present in Court. Attorney (alsely advised me judge ma< his client could nor attend court because of bad weather in Maryland. There was no basis in fact for attorney's staremenr. Because of arrorney's fa.lse statement, Judge Pake was required to conduct two additional hearings in the matter involving anorney's client. The judge found Anorney in contempt of court. Attorney did nor appeal, paying the fine and costs assessed. CAUTION 10-12-2001 (or violating Model Rules 1.4(a), 3.3(a)(I), 3.4(c), 8.4(c) and 8.4(d). JOHN M. BURNETI #95082, Eureka Springs, Arkansas. Complaint filed 08-282000, by Rosa Seslar o(Tulsa, who entrusted S30,OOO to attorney in March 2000 (or payment of her son's fine (SI5,000)and a contribution (SI5,OOO) to the sheriff's "drug fund" as part of a 1998 guilty plea in a felony drug proceeding in Carroll County, Arkansas. Attorney was hired to attempt to negotiate modification of the sentence or a withdrawal of the plea. Attorney had also been paid S2,500 (or legal work. Attorney allegedly never took any action cause the fine and contribution ro be paid. In mid2000. Complainant and her daughter made numerous requests for return of the funds. Attorney did nor rerum the funds. claiming they were for attorneys fees for legal work he had been done in Arkansas and Texas on the criminaJ case and a bankruptcy on behaJf of the son. Correspondence between attorney and complainant hody disputed the purpose of the S30,OOO. Prior to the public hearing, attorney offered a consent to discipline that involved a caution and restitution of the disputed S30,OOO and attorney (ees paid (S32,500 total). CO SENT CAUTIO & S32,500 RESTITUTION ordered 09-26-200 I for violating Model Rules 1.4 (a), 1.4(b),& 1.5(b)

Lawyer Disciplinary Actions DALE WINSTON FINLEY #67017, Russellville, Arkansas. Accord.ing to a Per

Curiam

of

03-29-200 I,

Attorney

represenred Steve Sanders in Newton Counry Circuit Court; filed a timely Notice

of Appeal; bur failed ro file rhe record of rhe lower court proceedings with the Arkansas Supreme Court Clerk in a timely manner. Anomey filed a Motion for Rule on the Clerk, which the Arkansas Supreme Court granted. CAUTION 10-12-200 I for

complainant. Attorney advised complainant to pur her assets in someone else's name. He failed to return her telephone calls requesting information abom post-judgmenr remedies. Cornplainam sued attorney. Attorney was served with Requests for Admission and other discovery requests to which he did not respond. Attorney's pleadings were scricken from the record and a default judgment was entered in complainant's favor, which Attorney did not satisfy. At the public hearing anorney claimed complainant was a difficult cliem ro represem because she had a severe distrust

Arkansas, was reinstated from suspension (see above) on October 31, 200 I.

Book Review continued from page 34

Anomey failed to timely file the record of the lower court proceeding within the 90 day period following enrry of conviction. Anomey filed a Motion for Belated Rule on the Clerk on the case of James Andrew Taylor v. State of Arkansas, and the Motion

of the legal system. He admitted he did not

was granted. CAUTION 09-13-2001 for violaring Model Rules 1.3 & S.4(d).

$13,000. CAUTIO 08-24-200 I for viola ring Model Rules 1.1 and 1.3.

time, permitted collateral attack, thru habeus corpus, on a state appeJlate court decision. All 12 Defendants were finally freed five years after their conviction, through a maze of motions, appeals, retrials, and executive clemency that only a skilled la\,{yer could manage. The author frequently exhibits skill as an historical novelist; as an example he inserts that the Governor's wife "could have easily persuaded" the Governor to see Birth of tl Nation, which played in Little Rock at the time. Perhaps an historical novel will be the next expression of his extraordinary talent. In the meantime, Stockley's in depth research and compelling arguments make

OSCAR STILLEY #91096, Fort Smith,

REINSTATEMENTS:

every lawyer who aspires ro try lawsuits.

violaring Model Rules 1.3 and S.4(d). DAVID MARK GUNTER #94004, Hope, Arkansas. Complaint filed 03-16-200 I.

properly represem himself in the lawsuit brought against him by complainant Worley. Sometime after the filing of the formal complaint, Attorney satisfied Ms. Worley's judgment in an amount exceeding

Blood in Thtir Eyes worthwhile reading for Arkansas. A Per Curiam issued 03-01-2001 found Atcorney failed to timely lodge a rranscript in a civil appeal with the Arkansas Supreme Court.

OSCAR STILLEY #91096, Fort Smith,

In a Motion for Rule on rhe Clerk, attorney refused to accept responsibility.

The Court denied the Morion and attorney requested a rehearing. Attorney's Petition for rehearing was found to be argumentative and devoid of any legal or fuctual basis for the Court ro reverse its decision. Prior to public hearing, Attorney offered to accept a caution as consent to discipline, which was accepted by the

Committee. CAUTION 10-17-2001 for violaring Model Rules 1.3 and 3.1. JOHN SKYLAR TAPP #76123, Hot

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22-2000, Ruby Worley alleged she hired Attorney to defend her in a lawsuit filed in Garland County Circuit Court. Attorney was served with Requests for Admission by opposing counsel bur failed ro inform complainant. As a result, timely responses to the requests were nor filed so they were deemed admitted. Because of the deemed admissions, judgment was entered against

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Vol. 37 No. IlWinler 2002

n,e Arkansas Lawyer

41

In Memoriam

Herbert Hall McAdam' II Herbert Hall McAdam' II. 86. of Little Rock and Dallas. Texas. died in Lirtle Rock on November 6. 200 I. He was a 1940 graduate of the University of Arkansas Law School in Fayetteville and was recognized as a Distinguished Alumnus in 1986. He was a commissioner of the American Bar Association's National Associ3[ion of Committees on Uniform State Laws (196166), a member of the Arkansas Board of Bar Examiners (1950-55) and president of the Craighead County Bar Association. Mr. McAdams served as Chairman of the Board and Chief Executive Officer of Citizens Bank of]onesboro for 32 years, and was Chairman of the Board and Presidenr of Home Federal Savings & Loan Association in Jonesboro from 1954 to 1970. He was Chairman of the Board and CEO of Union National Bank in Little Rock from 1970 to 1988. Between 1974 and 1977. Mr. McAdams was direcmf of the Little Rock Branch of rhe Federal Reserve Bank of St. Louis and was director of Worthen Banking Corporation in Little Rock from 1993 to 1995. "He never gave up, no matter what he was doing or undertook," recaJled longtime friend and employee Garland Binns. "He was a warrior. .. He readily accepted challenges. and he endured; he hung in there." His son-in-law, Randy Bynum, admired McAdams' character. "He was very generous with a lot of people, bur most of the time when he'd help someone out, he'd do it anonymously. He wasn't doing it for the credit bur because he wanted to do it." Bynum also considered McAdams a man of 42 The Arkansas Lawyer

"""""arkbarmm

great faith. "I once went to him for advice about an important decision I had to make," he recalled. "He told me, 'Pur your faith in God, and listen to what he tells you to do.'" Involved in Democratic politics since the late 1940's, McAdams was secretary of the Craighead County Democratic Committee, treasurer of Francis Cherry's gubernatorial campaign in 1952 and treasurer of Orval E. Faubus' bid for governor in 1962. It was reponed that he supported Bill Clinton's 1992 presidential campaign because he said he "wanted to see an Arkansan in the White House in my lifetime." His extensive civic work includes 14 years on the Board of Directors of First Arkansas Development Finance Corporation (19711985) and more than 20 years on the Board of Trustees of the Arkansas State Fair & Livestock Association. Mr. McAdams was founder and chairman emeritus of the Arkansas State University Foundation. He was awarded an honorary doctorate of laws from the University in 1984 and later was honored with the creation of the University's McAdamsFrierson Chair of Bank Management. He was also affiliated with the University of Arkansas at Little Rock Board of Visitors and John Brown University's Board of Trustees. McAdams was a Navy veteran , a pilm and golfer.. He is survived by his wife, Shelia Wallace McAdams and their three children, Kara Kratzer of California, Anne Bynum of Little Rock and Nicole McAdams of Little Rock; as well as four children by his first marriage to Ruth Noyes: Judith DeRoeck of Texas, Sandra Connor of Texas, H. Hall McAdams III of Texas and Penny Hodges of Little Rock.

Our thoughts and prayers continue for those who lost their lives or their loved ones in the September 11, 2001 attacks in New York and Virginia.

Bill "William III" Penix Bill "William III" Penix. 79. of Jonesboro. died at the Regional Medical Center of Northeast Arkansas. After serving in the army in Manila as part of the Signal Corps in General McArthur's headquarters there, he served in the Army Reserves. Mr. Penix and his wife of 47 years. The Late Judge Marian Fox Penix, completed law school together at the University of Arkansas at Fayetteville. He practiced law for 50 years in the Penix Law Firm with his father Roy and wife and served as depury prosecuting anorney and U.S. magistrate judge. He assisted Mexican migranr workers in northeast Arkansas with legal and immigration issues for many years. Mr. Penix was a lifelong Democrat and prominent advocate for civil rights. He was Chairman and Secretary of the Craighead County Democratic Central Comminee for 38 years and successfully advocated for the integration of the Hoxie School District in 1955. two years before the Little Rock Central High School crisis of 1957. As a member of the Jonesboro School Board. he helped oversee the peaceful desegregation of the Jonesboro schools in the 1960s. After suffering a stroke at age 46, Mr. He Penix became an avid runner. successfully completed the New York Marathon in 1981 and climbed to the summit of Mt. Kilimanjaro in 1983. He was a longtime member of First United Methodist Church in Jonesboro where he taught Sunday School for many years. Survivors include his wife, Rebecca Russell Penix of Jonesboro; son Charles Penix of North Little Rock; daughters Susan Fitzsiml110ns of California and Jane Davis of Fayetteville; and Judy Penix of Shetwood. the widow of his son Bill Penix Jr.

In Memoriam The Arkansas Bar Foundation acknowledges with grateful appreciation tilt receipt of memoriaL gifts and scholarship contribmio11S given in memory of the following individuals from September 12, 2001 Ihrongh December 20,200/: IN MEMORY OF

Bo ADAIR

Marshall & Owens, P.A.

IN MEMORY OF

LEE EARNEST BLACKWELL

Oscar and Frances Fendler

IN MEMORY OF LoUISE DALMONT

Judge William R. Wilson, Jr. and Cami Compron

IN MEMORY OF ARIEL IMBER

Philip E. Dixon Judith Gtay Ann Dixon Pyle Judge WilJiam R. Wilson, Jr.

IN MEMORY OF

NEAL MOODY

Jack Davis

Sid McCollum

Bob Hornberger

Frank Hamlin

Bill, Beth and Mark Wilson

IN MEMORY OF BILL PENIX

Jack C. Deacon Justice John A. Fogleman Dr. Rober< R. and Judge Susan Webber Wright

IN MEMORY OF MARy HOLT TRUEMrER

designllted to the justice j. Frank Holt Scholarship Fnnd

I NC 500 President Clinton Avenue, Museum Center, River Level Little Rock, AR 72201 501-376-2121

Carol Ann McLamb

1104 South Walton Blvd., Suite 8, Bentonville, AR 72712 479-271-2237 IN MEMORY OF

C.

RANOOLFH WARNER,

JR. desigllated to che H.P. Warner and CR. U'1trner Scholarship FIll/tis

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DON'T BE LEFT OUT! www.arkansasfmdalawyer.com For more information, contact Barbara Tarkington at 501-375-4606 or btarkington@arkbar.com Vol. 37 No. I/Winler 2002

The Arkansas lawyer

43

EVALUATION OF HIGHWAY DFSIGN. MAINTENANCE & CONSTRUCTION & TRAFFIC ACCIDENT RECONSTRUCTION This engineer has reconstructed over 3.000 accidents in 23 scates on highways. streets, railroads, highway consrrucrion z.ones involving big Hucks, cars, pickups, vans, mmorcycles, trains, pedestrians. Computer generated drawings prepared. Over 45 years engineering experience. Board certified by ACTAR. John T. Bares, PE. 1-800-299-5950. VACATION IN FRANCE AND ITALY. Tuscany - 18th C. howe with views of San Gimignano on wine, olive estate, 6 bedrooms, 3 baths, weekJy $2,200 - $3,000. Represenring owners of aucltemic. historic properties. For photos and details of this and other properties, visit www.lawofficeofkenJawson.com. Email: kelaW@lawofficeofkenlawson.com. 206632-1085, fax 206-632-1086.

UROLOGY Princeton University educated, Northwestern trained Physician with 36 years experience in Urology. Advanced training from Cook County HospiraJ in Chicago, IL, Johns Hopkins in Baltimore, MD, and Tulane Urology in New Orleans, LA. Available for evaluation of cases involving Urological problems. I have six years of expen witness experience. Call 918-492-1341 or Fax 918-492-7808. FORD & HARRISON LLP. a national labor and employment law firm representing employers, has an available associate position in its Memphis location. Qualified applicants will be members of the Arkansas Bar and have excellent academics from an ABAaccredited law school. Preferred credentials include a minimum of 3 years labor/employment law experience. Equal Opportunity Employer. Mail, e-mail or fax resume and law school transcript to: Wendi B. Fairchild, DireclOr of Recruitment FORD & HARRISO LLP 1275 Peachtree Sr., NE, Suire 600 Arlanra, Georgia 30309 apply@fordharrison.com Fax: 404-888-3863 No phone calls, please.

PAGE

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Life Care Planning LCP's are carefully researched professional documents that project the anticipated COStS of medical care, equipment, home care. rehabilitation, etc. of a child or adult over a specified period of time.

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The Arkansas Lawyer magazine Winter 2002