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July 1984Vol. 18, No.3

THE ARKANSASLAWYER

119 The President's Report

THE PUBUCATION OF THE ARKANSAS BAR ASSOCIATION

SPECIAL FEATURES REGULAR FEATURESOFFICERS

Dennis L. Shackleford. PresidentWilliam R. Wilson. Jr.. Pres-ElectAnnabelle Clinton. Sec-TreasurerJames H. McKenzie. Council Chairman

Wm. A. Martin. Executive DirectorJudith Gray. Assistant Executive

Director

Chris Barrier/Outof Context

120 Point of View/Letters

122124 Lawyers' Mart

EXECUTIVE COUNCIL

Norwood PhillipsW. Kelvin WyrickGary NutterRobert M. CearleyKaye S. OberlagTom OverbeyMarcia McivorRobert HornbergerJoe ReedTommy WomackJulian FoglemanJames A. McLarty

The Increasing Risks ofAntitrust Liability by

Patrick R. James. andH. Edward Skinner

Cover Story: The Arnoldsof Southwest Arkansas

by Morris S. "Buzz" Arnold

The Arkansas Court ofAppeals-Was It Worth

the Trouble? by JamesD. Gingerich

126

134 In Memoriam

136

140EX-OFFICIO

Dennis L. ShacklefordWilliam R. Wilson. Jr.J. L. Shaver. Jr.Annabelle ClintonCarl A. Crow. Jr.James H. McKenzie

Annual Meeting Highlights

146147150151

Bulletin

Executive Director's Report

Young Lawyers' Report

EDITOR

Ruth Williams

152153IBe

Arkansas Bar FoundationReport

In-House News

Service Directory

ON THE COVER:The first in a series of articles on generationsin the law in Arkansas will premier in thisissue with "The Arnolds of SouthwestArkansas-l02 Years of Law."Morris S. "Buzz"Arnold. professor of Law and History at theUniversity of Pennsylvania. traces the Arnoldfamily interest in law to William HendrickArnold who began in 1879. while a l7-year-oldschool teacher in Clark County. to readBlackstone and other relevant legal matter inearnest as a first step to becoming a lawyer.Featured on the cover. in a photograph by PatPatterson, is the Old Supreme Court chamberin the Arkansas State Capitol building. Thechamber was first used in 1912 by a bench offive justices.Pat Patterson

The Arkansas Lawyer (USPS 54&-0(0) ispublished quarterly by the Arkansas ~-----------------------------------1Bar Association. 400 West Markham. little Rock. Arkansas 7220 I. Second classpostage paid at Little Rock. ArkO\lsas.Subscription price to non-members ofthe Arkansas Bar Association $6.00 peryear and to members $3.00 per year included in annual dues. Any opinion expressed herein is that of the author. andnot necessarily that of the Arkansas BarAs:;ociation. or The Arkansas Lawyer.Contributions to The Arkansas Lawyerare welcome and should be sent in twocopies to the Arkansas Bar Center. 400West Markham. Little Rock. Arkansas72201.

All inquiries regarding advertisingshould be sent to The Arkansas Lawyerat the above address.

July 1984/Arkansas Lawyer/I 17

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liB/Arkansas LawyerlJuly 19B4

THE PRESIDENT'S REPORT

"JUDICIAL CRITIQUE"TO BE CONDUCTEDBy DENNIS 1. SHACKLEFORD

A Stronger RelationshipWith the Bench

This Bar year which began forme in June, 1983, had a fullagenda. Foremost in our effortshas been the establishment of amore meaningful relationshipwith the judiciary. Substantialprogress has been made.

Sharing ideas and coordinatingefforts at the spring conference ofthe Judicial Council evidenced thesuccessful improvement ofcommunications between theBench and Bar. The Council metApril 18-21. Included in the program were discussions on theprogress of legislation to establisha Judicial Compensation Commission, the upcoming judicialcritique (poll), and establishingstate trial practice committees.The Association hosted a receptionfor the conferees. It was a properm:'xture of business and socialinterchange.

Judicial CompensationCommission Legislation

SupportedThe Association's committee

headed by Sheffield Nelson has

moved forward with the preparation of a bill and plan to enactlegislation establishing a JudicialCompensation Commission. Sucha commission provides an objective way to review judicialsalaries. The matter of propercompensation for the judiciary isnot just a concern in Arkansas. It isreceiving attention throughout thecountry.

The headline in the April 16,1984, issue of the National LawJournal reads, "Judges are Militant. Bitter Over Pay." The newsstory points out that judges haveevery right to be bitter. Inflationover the past fifteen years has cutthe buying power of judicialsalaries thirty to fifty percent.Many judges comment this hasmeant their families suffer because of their decision to join theBench. Pension benefits have lagged so far behind that many juristsare forced to leave the Bench toinsure themselves and theirspouses an adequate old-age income. Rises in judicial salaries lagso far behind other occupationsthat many judges find themselvesin a topsy-turvy world where aformer law clerk in two years ofprivate practice is earning farmore than his former judicialemployer.

The Association supports an independent judiciary. To be reallyindependent the judiciary must befairly compensated. This will retain the best minds and free judgesfrom subtle pressures.

Judicial Critique(Poll) to

Benefit JudgesRarely do judges hear much

criticism from lawyers. Whatjudges can learn from lawyers willhelp them perform and benefit thepublic they serve without impairing judicial independence.

I reported to the Judicial Councilthis year the Association will makea survey. There are significantchanges from the past efforts. Thename is changed to "Judiciary

Critique." The results are to be absolutely confidential to the judge.The Association will not releasethe results to the news media, andjudges are discouraged to do soindependently. Each judge will receive only the results applicable tothat judge.

For the survey to be representative, each member of the Barshould promptly and fully respond. This is not a sample survey.It should reflect the responses ofthe entire Bar. As such the surveycan be viewed by the judges withconfidence. The statistical resultsshould convey a fair picture of theBar's perception of the judges' performance. Clearly discernableapproval should be a source ofreassurance and re-enforce thejudges' performance in thoseareas. Widely-shared criticisms ofother phases of performanceshould cause the judges to reexamine those practices.

The survey gives the lawyer awelcome opportunity to tell thejudge under anonymity how lawyers view the judge's performance,and give the information privately,without embarrassment or extraneous repercussion. Besideseducating the judge, the surveyprocess can help improve relationsbetween the judge and the lawyerspracticing in that court. The credibility and acceptability of thejudge's work on the bench is enhanced.

State Trial PracticeCommittees to be StudiedAt the long-range planning con

ference on March 30, 1984, a panelof Association members discussedthe feasibility of having state trialpractice committees similar tothose existing in the Arkansas districts of the federal courts. Thepanel discussion concluded that acommittee should be formed ineach judicial district. The committee should meet at least twice eachyear to discuss any matters thatwould improve communicationsbetween the district Bench and

(continued on page 135)July 1984/Arkansas Lawyer/l19

POINT OF VIEW/LETTERS

WHY DO PEOPLE HATE LAWYERS?

By Forrest E. Dunaway

The local editorial columnist inthe weekly newspaper was afterlawyers again. Although the article was directed at a neighboringmunicipal judge, it was apparentfrom the tone of the article that justice was a mockery, the courts asham and lawyers couldn't betrusted. I've read this type article ahundred times in my ten years ofpracticing law but this time wasshocked into the understandingthat there's more evolving herethan your garden variety hatred oflawyers.

It is difficult to discuss whypeople hate lawyers since we areprobably involved in more diverseactivities than any other profession. Many never "practice" law, aterm I define as being involved inthe formal conflict resolution process. loosely called the judicialsystem.

No o'ne understands more thanwe do that there are specific lawyers in our profession who arecapable of an endless variety ofreprehensible conduct. This is notlimited to the legal profession butour profession is making an effortto deal with truly unethical conduct through professional conductcommittees.

I talked with several of my colleagues about why people hatelawyers, because they seem to bemore articulate on the issue thanthe general public.

THE ARKANSAS LAWYERwelcomes point of view articles and letters from readers,The editor retains the right toedit them for space. All correspondence must be signedthough names will be withheld on request. Send to theEditor, Arkansas Bar Association, 400 W, Markham,Little Rock, AR 72201,

120/Arkansas Lawyer/July 1984

Basically people don't understand the adversary system. Theyquestion how a lawyer can putforth an untenable position at trial.To them it's lying. We know thatour position is untenable (although sometimes I wonder), but itis simply the best expression of ourclient's point of view. And, lawyersare associated with the morals oftheir clients. particularly in criminal matters. To the average personlawyers who represent radicalpositions are obviously not interested in the truth and are probably radicals themselves.

Pleadings in cases are a publicrecord and open trials expose theweaknesses of lawyers who aresimply human and have no specialskills for dealing with the intensepressure of the profession. If youwin. they love you. If you lose. ormake mistakes, there is little sympathy from anyone and the systemitself is blamed. The press also isresponsible for sensationalizingthe legal profession. certain trialsand bizzare individual casesrather than pointing out how wellthe system generally functions.Have you ever seen a card ofthanks in the newspapers aboutthe judicial system? "The family ofJane Doe would like to thank thejudge, lawyers and everybody atthe courthouse for a great trial. Wefeel much better having resolvedour recent tortuous injury."

People expect too much of thejudicial system. The entire judicialsystem is set up as a last resort inconflict resolution either betweenindividuals in civil matters or theindividual and society in criminalmatters. Instead, lawyers are seenby many people as a "lirst resort"when something goes wrong. I amrepeatedly amazed at people whowant to retain lawyers and havenever taken the time to contact theother party and resolve the matter.They just want the thing"lawyered" on. This recreation ispartly fostered by lawyers who

have a "come see us and we'll findsome kind of lawsuit for you" attitude. The law is a last resortwhen efforts to resolve problemshave failed. The day will nevercome when both sides jump upafter a trial, embrace the judgeand wonder why they didn't comeup with such a wonderful solutionin the first place.

The courts should help by beingmore accessible to the averagecitizen when conflicts are difficultto resolve. Some judges have a"what are you doing here" attitudew hen someone appears in courtunrepresented. More "People'sCourts" should be established.(Arkansas is way behind in this regard).

On a broader societal level. Ihave come to the conclusionpeople have developed an irrational hatred of lawyers, the lawand government because of a misplaced responsibility for solvingsocieties problems. As far as thegeneral public is concerned, lawyers are supposed to take care ofinjustice if it exists. In fact, injustice has always existed and willalways exist. The system is designed to forge a compromise or"relative" justice when everythingelse fails. It increases when thelaw is seen as the vehicle to "makeus do right" since one group's perception of doing right may be to thesevere detriment of another group.

The public demands increasedprosecution of essentially victimless crimes with moral overtonessuch as regulations on the use ofmarijuana and religion in theschools. These pursuits are totallyhopeless since morality, right action and a religious and philosophical respect for life when enforced by law lead to oppression.

The Supreme Court and American Civil Liberties Union arecriticized when they point out thatthe State cannot interfere with certain individual choices. Peopledon't want their rights protected.

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they want their will exerted on therest of society and think lawyersjust aren't taking care of business.

Perhaps the frustration towardlawyers is an expression of deepfrustration with the way things aregoing. Society must realize thatthings cannot change without responsible participation in government and conflict resolution between each other.

I see a sensitivity in the judiciarytowards trying to improve the system. Lawyers can and must takethe initiative in expanding anddeveloping new ideas of conflictresolution while at the same timethe public must understand andaccept their responsibilities to thesystem and realize the limitationsand role of lawyers. 0

Forrest E. (Gene) Dunaway is anattorney with Ozark Legal Servicesin Fayetteville. He has practicedlaw in Mountain View for about lOyears and has served as deputyprosecuting attorney for Izard andFulton Counties and as city attorney for several area cities.

LEITERSTo the Editor:Dear Miss Carfagno:

Your piece in the ApriL 1984issue of the Arkansas Lawyer isread with interest and appreciation, especially since it features"my" County Courthouse.

One small correction, which Ithink you will be glad to knowabout: The original steeple was.indeed, as your article states, removed in 1966 because of looseand falling slate tiles and generally hazardous condition.

The steeple was restored, anexact duplicate of the originaL inSeptember, 1974, and it proudly

dominates downtown Fayettevilleas in days of yore. It was whollyconstructed by skilled carpenters,woodwrights and roofers in nearbySpringdale; then lifted bodily,flown to Fayetteville and settled inplace by an Arkansas NationalGuard Army helicopter and crew.

This was done in the early daylight hours to avoid traffic congestion and minimize danger to vehicle and foot traffic in case of untoward incident. None such occurred. Even so, hundreds of peoplelined the streets to observe the operation, which went off without ahitch.

With thanks for your article andall good wishes, I amJudge Thomas F. ButtFayetteville

Dear Judge Butt:Thank you for your letter of

March 26. I appreciate your comments and your correction, although I am embarrassed to saythat I have seen the courthousemany times since the steeple wasrestored and failed to correct. theerror myself.

In writing the piece I was working largely from information contained in the nomination formsthat led to National Register listingfor the courthouses. TheWashington County Courthousewas nominated in 1972 and, consequently, the information wasaccurate at that time. It onlyproves that history isn't stagnantand one would always do well todouble-check.

I am placing a copy of your letterin our file on that structure so thatthe replacement of the steeple willbe noted.

Thank you again for taking thetime to write.Sincerely,Jacalyn Carfagno

To the Editor:Prior to his departure as Execu

tive Director, Col. Ransick askedme to give a review on the FederalCriminal Trials as updated byJames C. CisselL formerly UnitedStates attorney for the SouthernDistrict of Ohio. Having served asUnited States attorney for theEastern District from 1968-1979 andhaving worked with Jim CisselL Igladly accepted the assignment.

Upon receipt of the book, published by The Michie Company, Iwas amazed at the work that hadbeen done by the author in completing a project formerly carriedon by the United States attorney'soffice for the Southern District ofNew York and entitled "ProvingFederal Crimes," The latter was aDepartment of Justice project andJim Cissell expanded and improved the work.

The only bad part of my assignment was the fact that my assigned book is not a novel or anything close to such. It is really ahornbook or a handbook thatshould be in the office of anylawyer who handles criminal matters in court. There is no possibleway to review a book such as thiswithout taking all the space givenfor the Arkansas Lawyer.

Let me say that Cissell has donean excellent job and it is outlinedfor easy use. Since he served during the period I was United Statesattorney it is my pleasure to urgeall attorneys who practice criminallaw to purchase a volume of Federal Criminal Trials. It will makeyour task easier and possibly prevent a claim of ineffective counsel.

W. H. "Sonny" Dillahuntypartner ofDillahunty, Skelton & JamesAttorneys at Law

July 1984/Arkansas Lawyer/l21

chris barrier/out of context

WRITE IF YOU GET WORK. • •

Sell-help and personal improvement are American passions. We work out with JaneFonda and reduce with almostanybody. We sometimes expectmiracles, but we always want results. We know that almost anykind of exercise is good for us, butwe want the kind that does us themost good in the least time. Weknow what a balanced diet lookslike, but we need to work it into anexecutive lunch.

Lawyers struggle with the needto improve their writing. As withexercise and diet. we know thatthe basic tools for improvementare simple: a good writer needs todo a lot of reading and writing.And, yes, there are ways to focusour efforts to get the best results.

What this article doesn't do ...This article and the ones that fol

low don't presume to teach anyonehow to write. or even to give manytips for simple improvement. Theirpurpose is to describe several toolsthat any lawyer interested in improving his or her writing cao useto that end.

Specifically, I will describe several books on writing (both legaland general), which can be read inthe sequence described and whichwill almost certainly improve yourwriting. I will also describe several standard works to keep byyour dictating machine which willmake that writing easier.

My aim is not to summarize ordistill each of these works, but togive you enough of their flavor andcontent to let you know whetheryou want to give the suggestedself-help short-course a try.

Where we are headed ...The first is William Zinsser's On

Writing Well (Second Edition,Harper & Row, 187 pp.; mostbookstores can order it for $10-12 if


they don't have it). Zinsser discusses in friendly terms the processand problems of writing nonfiction. The second is Strunk &White's classic The Elements ofStyle, which is more technical andspecific. The third is Wydick'sPlain English for Lawyers, whosetitle accurately reflects its contentand its no-nonsense approach.(Plain English for lawyers turns outto be remarkably like plain English for everybody else, if harderto achieve.)

These books are readable andcompact and, of course, can andshould be read straight through.They can be kept for reference aswell. The remaining group ofbooks (such as Fowler's ModernEnglish Usage and HoughtonMifflin Company's The WrittenWord) is more plainly for referenceonly.

Zinsser and the written word ...The first edition of Zinsser's book

was published in 1976, and the current edition four years later (whichis, in itself, a lesson in the value ofrevision). Zinsser has taught nonfiction writing at Yale and hasbroad experience as a writer-heunderstands both the process ofwriting and of writing improvement. He is now executive editor ofBook-of-the-Month-Club, whichmeans he reads for a living.

His book begins with the premise that writing non-fiction wellis never easy and always requirescare, practice and attention. However, it does not require a specialgilt, like singing or painting. Anyone with the education needed tobecome a lawyer can learn to writewell. whether the product is a letter. a brief. a motion. a speech oran article for a civic club newsletter. It simply requires effort andattention to technique.

Reading and understandingZinsser does not and should notrequire much effort. He carefullyexplains what he means and offersvivid examples from other writers.almost to excess. Some of his advice would seem obvious if we allfollowed it. which we don't. Writelike yourself, says Zinsser, with aconsistent tone and a view to youraudience. Do not affect in writingthe air of stilted pedantry to whichlawyers are so prone.

The hardest work of all ...Write simply, which is perhaps

the hardest work of all. In almostevery instance, your aim will be tocommunicate, not to impress oroverwhelm. Again, Zinsser provides examples and exercises.which entail some risk-you beginto notice the clutter in your ownwriting.

You also begin to notice deficiencies in the writing of others(which, of course, should be handled diplomatically). However, asmost lawyers are frequently askedto comment on or revise the work ofothers (including that of associates), being able to read critically is a real strength, one whichclients appreciate. Contrary topopular notion, clients are not impressed by documents they cannotunderstand. They do appreciatelawyers who can render legaldocuments in readable standardEnglish.

Use words carefully, words thatsay what you want to say. Webster's New Collegiate Dictionary ishandy and serviceable, andRogel's Thesaurus is still a greatsource when you've got the idea,but need a word to express it. Usewords correctly. How many timeshave you been "appraised" ofsome fact. when the writer orspeaker meant for you to be "ap-

prised?"Ain't that opprobrious, , ,Use words effectively, says Zins

ser. which may mean some resortto artifice. For example, in theopening paragraph of his Gazettepiece on the image of lawyers, VicFleming uses both "ain't what it'scracked up to be" and "opprobrious epithet." an interesting juxtaposition of the vernacular andthe ponderous, carefully calculated to catch the reader's attention.

Getting and keeping thereader's attention early on is important, says Zinsser, as it may affect the way they read your wholepiece. Who needs a judge whodoesn't want to read the rest of

our brief. after the first para-

graph? Vic Fleming's two-sidedsnapper is a perfect example of agood lead in an informal article.

Read on. read on ...In a legal context. the first

paragraph of a brief (preferablythe first sentence) ought to makethe judge want to read what youhave to say. Contrast the leads inopposing briefs in the same recentcase (paraphrased but accurate):

Appellant-"This case involvesthe construction of Ark. Stats. Ann.§§99-101 and 107, and is governedby the rule in Smith v, Jones, 123Ark. 456 ... "

Appellee-"This is a case aboutmoney, human nature and thelaw."

Give them the law later. First gettheir attention. Do not use over-

statement to do it. Saying your opponent's case is "absurd" or"wholly without merit" may impress your client, but can hurt yourcredibility.

Humor also takes special care.(Zinsser, by the way, can be veryfunny.) What sounded like a thrustof rapier-like wit when you dictated it may appear to the readeras meat-ax sarcasm, which isnever usefuL however strong theurge to use it.

Read your stull aloud. If itdoesn't read well out loud, it won'tread well. period. In one of hismany examples, Zinsser gives fouralternative versions of TomPaine's "these are the times thattry men's souls," the worst of whichis "Soulwise, these are trying

July 19841Arkansas Lawyer/123

times." He makes his point.LAWYERS' MART

classified advertising for membersEschew trendiness ...Zinsser is perhaps too conserva

tive on usage issues. but caution isplainly warranted in picking uptechnical terms for use in anothercontext. "Interface," "input" and"feedback" have specific meanings in computer work, and it blursthose meanings (and the usefulness of the words) when we throwthem around elsewhere in an effortto sound trendy.

Think about how you're going towind up a piece before you getthere, but according to Zinsser,ending abruptly is not a seriousoffense. Continuing to string together words after you've laid outall of your ideas is.

Zinsser also decries stylistictimidity (to which lawyers seemespecially susceptible). We overuse qualifiers (like somewhat.rather and quite) and passiveverbs, and cling to unnecessaryadverbs and adjectives.

George Orwell, King James andyou ...

Zinsser recommends as examples of strong, active proseShakespeare and the King JamesBible, and makes his point well.George Orwell once translated aclassic passage into "modernbureaucratic fuzz." to-wit:

Objective consideration of contemporary phenomena compelsthe conclusion that success orfailure in competitive activitiesexhibits no tendency to be commensurate with innate capacity,but that a considerable elementof the unpredictable must invariably be taken into account.Zinsser supplies original.

Ecclesiastes 9: \I:1 returned and saw under thesun, that the race is not to theswift, nor the battle to thestrong, neither yet bread to thewise, nor yet riches to men ofunderstanding, nor yet favor tomen of skill; but time andchance happeneth to themall... 0


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The Increasing Risksof Antitrust Liability

By Patrick R. James

and

H. Edward Skinner

INTRODUCTIONLocal governments have been

faced with an increasing numberof antitrust suits as a result of tworecent Supreme Court decisions.These decisions. City of Lafayettev. Louisiana Power & Light Company' and Community Communications Company v. City 01 Boulder'. are the last 01 a series of Supreme Court decisions eroding theso-called "state action doctrine."Under the state action doctrine,which was first enunciated inParker v. Brown. 3 it was assumedthat all governmental entities, including state agencies or othersubdivisions of the state, were,because of their status, exemptfrom the antitrust laws. Wilh theerosion of this doctrine local governments have been faced with

Editor's Note: Patrick R. James isan associate with the law firm ofGill, Skokos, Simpson, Buford &Owen, P.A., in Little Rock and is amember of the Antitrust and TradeRegulations Committee of the Arkansas Bar Association. His practice is general civil litigation, including antitrust and civil rightsdefense. A 1982 graduate of theUniversity of Arkansas at LittleRock School of Law, he served asassistant editor of the UALR LawJournal.

H. Edward Skinner is a memberin the firm of Prince & Ivester, P.A ..in Little Rock. He is primarily engaged in general practice with anemphasis on administrative agencies and the Public Service

l26/Arkansos Lawyer/July 1984

antitrust suits for a number of activities, "including regulations ofcable television businesses,operation of electric utility systems, operation of sewage treatment services. provision of public

Currently, in order for thestate action doctrine to applytwo tests must be met: "First.

the challenged restraintmust be '... clearly

articulated and affirmativelyexpressed as state policy;'

second, the policy must be'actively supervised' by the

State itself." Thus, localgovernments are not

automatically exempt fromthe antitrust laws simply by

reason of their status.

water supplies, denial of Q telephone franchise, zoning, leasingof parking spaces for baseball

Commission. antitrust and generalcorporate law. He has been amember of the firm since its inception in January, 1984. He was vicepresident of Legal Services atALLTEL Corporation (formerly Allied Telephone Company) in LittleRock before becoming a member pfthe firm. A 1972 graduate of theUniversity of Missouri School ofLaw at Kansas City, he also attended the University of MissouriSchool of Law at Columbia from1968-70 and was a member of theMissouri Law Review. He is amember of the Antitrust and TradeRegulations Committee of theAssociation.

This article is a project of theAntitrust and Trade RegulationsCommittee.

games, regulating parking lotoperators. operation of municipalairports, regulating on-airport carrental concessions. regulation andlicensing of taxis, awardingwrecker tow-in contracts, solidwaste management, regulatinghospital facilities, and creation ofambulance service systems. "4

At least two antitrust suits havebeen filed against Arkansas cities.The first suit was against themayor and city council members ofHeber Springs for granting an exclusive solid waste utility franchise for the collection and disposalof solid waste.' United States District Judge G. Thomas Eisele eventually dismissed the case holdingthat the city official's actions wereprotected under the state actiondoctrine.' The second suit hasbeen filed against the City of LittleRock, its Board of Directors, andother parties alleging that the defendants violated Sections I and 2of the Sherman Antitrust Act byenacting an ambulance serviceordinance.' The Complaint furtheralleges that the City ordinanceincorporates major aspects of a"public utility model" underwhich, for it to be economicallyfeasible, the municipally licensedcompany must be the only ambulance company allowed to do business in the City. The plaintiffs areseeking $50,000.00 in damages.

Although judgments have beenawarded against local governments for federal antitrust violations in only two cases to date.these judgments have been staggering. The first case in whichsuch a judgment was awardedwas Affiliated Capital Corp, v.City of Houston,' In that case thejury awarded a 2.1 million dollarjudgment against the Mayor of theCity of Houston and successfulapplicants for a cable televisionfranchise in the City of Houston.

The district judge granted judgment n.o.v. in favor of the defendants and the plaintiff appealed.On appeal the Fifth Circuit reversed the lower court judgmentand reinstated the jury's award of2.1 million dollars.' In the secondcase, Unity Ventures v. County ofLake. a jury awarded a developer9.5 million dollars against acounty, a village and three officials. tO This award was automatically trehled to 28.5 million dollarshy the federal judge who presidedover the case.

Currently, in order for the stateaction doctrine to apply two testsmust be met: "First. the challengedrestraint must be '. , . clearly articulated and affirmatively expressed as state policy;' second,the policy must be 'actively supervised' by the State itself."" Thus,local governments are not automatically exempt from the antitrust laws simply by reason of theirstatus. 12 Nor ore activities whichare undertaken pursuant to a localgovernment's home rule powersufficient to bring a local government under the state action doctrine since, "when the States position is one of mere neutrality" it"can hardly be said to have 'contemplated' the specific anticompetitive actions. "'3

The Eighth Circuit has held thatthe clearly articulated and affirmatively expressed requirement"is comprised of two elements: (I)the legislature must have authorized the challenged activityand (2) it must have done so withan intent to displace competition ..... Under this test. there mustbe both state authorization andcontemplation of the challengedanticompetitive activity. "Stateauthorization and contemplationcan be found from comprehensiveregulatory schemes, state supreme court decisions, actions ofstate agencies. or even broad authority created under state law toundertake the challenged activity."" Despite some earlier authority to the contrary, the lower courtshave generally held that the stateaction doctrine is applicable

where the state has merely authorized or directed the challengedactivity and that the local government action need not be compelledor mandated by the state."

It is not clear whether the secondp"mg of the Supreme Court's test.Le.. "active state supervision." isapplicable to local governments.In City of Boulder the Court specifically chose not to reach the question whether local governments"must or could satisfy the 'activestate supervision' test focusedupon in Midcw."" Relying on thislanguage the Seventh," EighV'and Ninth Circuits" have specifically held that the active statesupervision requirement does notapply to traditional governmentalfunctions. The following activitieshave been held to be traditionalgovernmental functions or activities: fire prevention. police protection, sanitation, public health,parks and recreation, publicschools, hospitals, solid wastedisposal. operation of municipolairfX>rts, ambulance service. regulation of taxicabs, sewage treatment, and public water supplies."

The purpose of this article is toreview particular Arkansas statutes which mayor may not provide protection to local governments under the state action doctrine. When applicable, statuteswhich affect counties will also bediscussed. Specific attention willbe given to whether a local government can grant an exclusivefranchise or regulate businessesand be protected from the federalantitrust laws.

Before discussing specific activities to determine whether theymay be protected under the stateaction doctrine, the reader shouldbe aware of two potential pitfalls.First, Article 2, § 19 of the ArkansasConstitution contains the following anti-monopoly provision:"Perpetuities and monopolies arecontrary to the genius of a republic, and shall not be allowed..."Despite the apparent blanket prohibition, a grant of an exclusivefranchise may not necessarily violate this section since the anti-

monopoly provision must be readand considered along with a localgovernment's exercise of its policeand public welfare powers." InBridges v. Yellow Cab Co." the Arkansas Supreme Court held thatthe granting of an exclusive franchise for operation of a taxicablimousine service at a municipallyowned airport did not offend theConstitution. The Court emphasized, however, that (I) the exclusive right was a narrow one, (2)the franchisee was required toprovide service for the life of thefranchise, and (3) the city councilfound there was not enough business for the service to be providedon a competitive basis. 24

Second, the Eighth Circuit inWestborough Mall, Inc. v. City ofCape Girardeau" has indicatedthat even if Arkansas law wouldbring the local government withinthe state action doctrine, theexemption could be lost if there isfraud or illegal conduct. The impact of the Westborough decisionis unclear, but it could subject previously protected activities to thereach of federal antitrust laws.With these two caveats, the application of the state action doctrineto specific activities will now bediscussed.

AMBULANCE SERVICESArkansas cities of the first class

with populations in excess of35,000 have been granted broadpowers to regulate, license and/orcontrol emergency medical se!vices and ambulance operations"originating from within" theircorporate limits. 26 Their powersinclude the right to regulate therates or service fees for ambulanceservice 21 and the authority tolicense, franchise, or contract withambulance companies on an exclusive basis." In granting thesecities the right to grant exclusivelicenses or franchises, the GeneralAssembly legislatively determined that the "health, safety andwelfare of the residents of thestate" are harmed by the provisionof municipal ambulance serviceon a competitive basis. 29

July 1984/Arkansas Lowyer/127

These broad powers of regulation have not been expresslygranted to cities of the first classwith populations under 35,000,cities of the second class, and incorporated towns, Nevertheless,these municipalities have beengranted, in Ark. Stat. Ann, § 192319. authority to license or franchise emergency ambulance operations within their corporatelimits," This legislative grant includes the right to franchise orlicense emergency ambulanceservices on an exclusive basis.

Arkansas counties may establish public facilities boards andthrough these boards are. in effect.authorized to own and operateambulances and to provide ambulance services to county residents." However, the public facilities boards have not been expressly granted authority to regulate or control private ambulanceservices nor have they been ex-

pressly imbued with power tofranchise or license ambulanceservices on an exclusive basis.

From a review of the broad powers granted to cities of the firstclass with populations in excess of35.000. it appears that in licensingand regulating ambulance servicewithin their corporate limits. thecities are entitled to protectionunder the state action doctrine.The first prong of the state actiondoctrine should be met by the factthat the General Assembly hasexplicitly authorized these cities togrant exclusive franchises orlicenses and to regulate servicefees and charges. Moreover, theGeneral Assembly has even madea legislative determination thatambulance service provided on acompetitive basis may be injuriousto the public's health, safety andwelfare. This should be sufficientto evidence a legislative intent todisplace competition.

The second prong of the testshould be satisfied by the fact thatambulance service was held to bea traditional governmental function in Gold Cross Ambulance andTransfer v. City of Kansas City. 32 InGold Cross the United States Circuit Court of Appeals for the EighthCircuit reviewed a similar statutory scheme which permitted citiesto provide ambulance service totheir citizens on a proprietarybasis or through one or more franchisees. 33 Pursuant to statutory authority, the City Council had implemented a single-operator ambulance system to provide all ofthe city's emergency and nonemergency service. The city's ambulance system was managed by anon-profit public trust. In rejectingthe contentions of ambulance providers not awarded a share of thecity's franchise that the city's planviolated federal antitrust laws, thecourt found that Missouri's statut-

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ory scheme satisfied the first prongof the state action doctrine and rejected the notion that the secondprong of the test. active statesupervision, was necessary beforeantitrust immunity was availableto the city.

From a review of Ark. Stat. Ann.§ 19-2319. however, it is less certain that the first prong of the stateaction doctrine would be extendedto other Arkansas municipalities.While they appear to have beengranted statutory authority toissue exclusive franchises or grantexclusive privileges. they have notbeen authorized generally to regulate the rates and activities of providers of ambulance service. Theirpowers are certainly not as extensive as those granted cities of thefirst class with populations in excess of 35.000. Thus, the fact thatthe General Assembly did notgrant them the same broad powerscould be argued as evincing a

legislative intent not to displacecompetition with regulation.

It is even more difficult to predictwhether counties are entitled toprotection under the state actiondoctrine. There is no expressstatutory authorization permittingcounties to license emergency ornonemergency ambulance providers or to regulate their operations. It is true that the Public Facilities Boards Act" does contain a"clearly articulated and affirmatively expressed" state policy encouraging counties and municipalities to establish or improveambulance service. but this.standing alone, does not necessarily indicate a legislative intent todisplace competition. Consequently, it is questionable whetherthe standards set forth in City ofLafayette and City of Boulder aremet.

TAXICAB SERVICESArkansas cities of the first and

second class have been grantedexclusive power to permit. regulate. and control taxicabs withintheir corporate limits." Included inthis power is the right to approve ordisapppprove or to prescribemaximum rates or tariffs chargedby taxicab operators in the city."Taxicab companies are specifically prohibited from operating incities of the first and second classwithout first procuring a permitfrom the city council to do so" andthe cities are authorized to grant orrefuse these permits.:JI One requirement for such a license is thatthe taxicab owner have liabilityinsurance. 39

It would appear that the statutesvesting cities with regulatory andlicensing powers over taxicabs arepart of an overall scheme established by the State for the regulation of taxicab services. Ark. Stat.Ann. § 19-3515 even compels citiesto act before a taxicab company

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can even be licensed to operate onthe city streets. Since cities regulate taxicabs directly rather thandelegating the responsibility toprivate parties. the active statesupervision requirement is met. 40

Although the statutes do not specifically provide municipalitieswith the power to grant an exclusive taxicab franchise, it is certainly arguable that the statutes'comprehensive regulatoryschemes and the broad and exclusive authority granted to cities ofthe first and second class shouldprovide protection under the stateaction doctrine." Additionally, asdiscussed earlier." the ArkansasSupreme Court has upheld thegranting of an exclusive five yearfranchise of a limousine cab service at a municipal airport. 43 Finally, the Ninth Circuit has heldthat regulation of taxicabs is atraditional municipal functionand that a city is not required toprove active state supervision"when it franchises taxicab companies and regulates taxicabfaces within the city.""

There is little authorization forcounties to regulate the operationof taxicabs. The strongest argument is found in Ark. Stat. Ann. §17-4109 which authorizes countiesto establish subordinate servicedistricts. One such district whichcan be organized is for transportation services and public transportation services.4$ Even if applicable to taxicabs, this statute doesnot appear to contemplate anticompetitive regulation of taxicabservices.

WRECKER TOW-INSERVICES

There is little Arkansas statutoryauthority for the regulation ofwrecker tow-in services by cities.The strongest authority can befound in Ark. Stat. Ann. § 19-3510which states that municipalitiesshall have the right to regulate andtax all motor vehicles operatingwithin their corporate limits. InGates v. Reese" the Arkansas Supreme Court held that wreckerswere not exempted from this

130/Arkansas Lawyer/luly 1984

group. Although cities are reserved the right to regulatewrecker services by implication,the statutory scheme" does notappear to encompass regulationwhich would affect competition.The only arguable exception isfound in Ark. Stat. Ann. § 19-3501which allows cities of the firstclass to fix rates and prices for thetransportation of persons andproperty in coaches. cabs. andomnibuses from one part of the cityto another. Additionally. citieshave the power to regulate all vehicles which travel on theirstreets." In construing this statutethe Arkansas Supreme Court hasheld that cities "have expresslybeen given control and supervision of the streets and highwayswithin their limits."" The UnitedStates District Court for the Northern District of Illinois in Campbellv. City of Chicago," held that anIllinois statute similar to Ark. Stat.Ann. § 19-2329 did "not constitute aclearly articulated and affirmatively expressed policy to displacecompetition. "SI

The above described Arkansasstatutes and controlling authority,which also arguably encompasswreckers, appear to be aimed atthe regulation of motor vehicles forsafety and taxing purposes. Amunicipality faced with an antitrust suit for regulation of wreckertow-in services on an anticompetitive basis would be hard pressedto find a "clearly articulated andaffirmatively expressed state policy" authorizing the challenged activity.

SOLID WASTE DISPOSALState law imposes an obligation

on all municipalities and countiesto provide a solid waste management system adequate to handlesolid waste generated or existingwithin their incorporated limits orboundaries. S2 Moreover, the General Assembly has declared thatstate policy supports regulatingand controlling the disposal ofsolid waste to protect the publichealth and welfare."

To accomplish these goals,municipalities and counties have

been granted broad powers to regulate and control the collectionand disposal of solid waste. Theyhave been authorized to own, operate and construct solid wastedisposal facilities" or to contractfor or lease such facilitiesss . Citiesand counties have also beengranted the power to establishpolicies "concerning all phases ofthe operation of a solid wastemanagement system."" They mayset. levy and collect fees andcharges "as may be appropriate todischarge" their responsibilities"and to impose them on all personswho benefit from the solid wastemanagement system. 51 Finally,cities and counties have been empowered to contract with othercities. counties. private citizens orany combination thereof, toachieve the broad state policiesset forth in the enabling legislation. S9

In view of the extensive authority given cities and counties toregulate virtually all facets of solidwaste disposal. it appears that acity's or county's acts implementing a solid waste managementplan would be entitled to state action protection;60 especially inlight of the fact that solid wastedisposal has been held to be atraditional governmental function." Even though there is noexplicit statutory language authorizing the provision of solid wastedisposal services on an exclusivebasis either by the city or county inits own capacity or by its franchisee, there is certainly a broadstatutory basis for arguing that theGeneral Assembly must have recognized that reasonable restraintson competition might be necessaryto implement solid wastes disposal plans. This should be sufficient to pass muster under the"clearly articulated and affirmatively expressed" standard.

The broad powers granted anArkansas municipality to implement a solid waste disposal planwere recently considered in L & HSanitation, Inc. v. Lake City Sanitation, Inc." In that case, JudgeEisele rejected a claim that the

granting of an exclusive solidwaste utility franchise violated thefederal antitrust laws. In holdingthat the city's action was protecteduncler the state action doctrine,ludge Eisele concluded that theGeneral Assembly had "clearlyarticulated and affirmatively expressed" a state policy of regulation of waste management whichempowered municipalities to impose anticompetitive restraints.

ZONING RESTRICTIONSBoth municipalities63 and CQun

ies64 have been granted authorityo enact comprehensive ordi

nances prescribing reasonablezoning and land use restrictions.Among their delegated powers isthe right to regulate the type andlocation of buildings and structures, the uses of land and buildings, and the density and distribution of population. They may alsodesignate separate districts or

zones and prescribe the shape,size or characteristics of each dis·trict or zone. Included in this latterpower is the right to designate thetypes of businesses which maylawfully be carried on in a particular district or zone, or indeed.whether any business or commercial enterprise may be conductedtherein. 6s

Whether a governmentalagency's exercise of its zoning orland use powers is entitled to immunity from liability under thefederal antitrust laws will dependupon an in-depth analysis of thefacts of each case. It appears thatin the absence of a conspiracy orillegal agreement between city orcounty officials and private citizens, the enforcement of reasonable zoning or land use restrictionsis protected by the state action doctrine. Even though the exercise ofzoning powers has never beenfound to constitute a traditional

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governmental function, it wouldbe hard to find a clearer exampleof a legislative delegation ofpolice powers to subordinate governmental bodies to protect thepublic.

However, it is clear that if city orcounty officials use zoning powersin bad faith to prevent an individual from reasonably using ordeveloping his real property, theirexercise and use of the city's orcounty's zoning powers may not beimmunized." As the United StatesCircuit Court of Appeals for theEighth Circuit recently noted inWestborough Mall, Inc. v. City ofCape Girardeau: 67

[A] conspiracy to thwart normalzoning procedures and to directly injure the plaintiffs by illegally depriving them of theirproperty is not in furtherance ofany clearly articulated statepolicy.

Simply stated, state action immun-

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ity may not be extended to protectotherwise unlawful conduct accomplished through exercise of agovernmental body's zoning authority.

CABLE TELEVISIONArkansas statutory authoriza

tion for local government regulation of the cable television industry is nonexistent. Not only is cabletelevision not a public utility," theindustry is specifically exemptedfrom regulation by the public service commission. 69 The total lackof statutory authorization and caselaw surrounding local governmentregulation of cable televisionfranchises evinces a position ofneutrality as far as the State isconcerned. This lack of State lawgranting local governments authority to regulate cable televisionis similar to the facts in City ofBoulder where the city regulatedcable television franchises pursuant to its status as a home rulemunicipality. In City of Boulder,the Supreme Court specificallyheld that the state action doctrinewas not applicable and that thecity was subject to an antitrustsuit.

Local government regulation ofthe cable television industry is oneof the most fertile areas of localgovernment antitrust litigation.More importantly, it is one area inwhich local governments tend tohave the least protection under thestate action doctrine. 70 An excellent example of this is CatalinaCablevision Assoc, v. City of Tucson71 in which a cable televisioncompany brought an antitrust suitagainst the City of Tucson forgranting an opposing cable television company a license to operate in the City. The plaintiff alleged that the City and the cablecompany agreed that the Citywould issue only one license andthat the net effect of this agreement was to establish a monopoly.The City argued that it was immune from antitrust liability underthe state action doctrine becausestate law granted municipalitiesauthority to regulate cable tele-


Local governmentregulation of the cable

television industry is one ofthe most fertile areas of local

government antitrustlitigation. More importantly,it is one area in which local

governments tend to havethe least protection under the

state action doctrine.

vision. 72 The court rejected theCity's state action argument andheld that state law only gave theCity power to regulate cable television as was the case in City ofBoulder, "Because the statutesnowhere address or imply that itwas the state's policy to displacecompetition with a monopoly, citycannot take advantage of Parkerimmunity.u73

Even if it is found that state action immunity is lacking, it doesnot necessarily follow that there isa violation of the federal antitrustlaws for granting an exclusivecable television franchise. Thetown of Le Plata, Maryland, recently sought an opinion from theMaryland Attorney General as towhether it could grant an exclusive cable television franchise.The Attorney General concludedthat the town would probably beimmune under the state actiondoctrine, but added that even if itwas not immune "several differentantitrust theories conceivablycould be applied to Le Plata's grantof an exclusive or exclusionaryfranchise. "74

The Senate has recently passeda bill" declaring "that competitionis a more efficient regulator thangovernment of the provision of diverse communication services andas competition continues to develop, the deregulation ofcommunication services shouldoccur."" The bill, which is presently before the House, takesaway much of the powers of stateand local governments to regulatethe cable television industry, butstill allows the awarding of franch-

ises for cable televisions. However, once a franchise is awarded.the franchisee has a right that thefranchise be re-awarded and,should the franchise be denied,there are provisions for bindingarbitration.

CONCLUSIONThe above are just a few exam

ples of activities which could subject Arkansas local governments toantitrust suits. The threshold inquiry in determining whether thelocal government conduct is protected under the state action doctrine involves an examination ofstate law to determine if there isdirection or authorization for theanticompetitive activity. Even if itis found that the challenged activity is in furtherance of a "clearlyarticulated and affirmativelyexpressed" state policy, the localgovernment is faced with the question of whether "active statesupervision" is required and, if sorequired, whether it has been met.In any event. it is clear that localgovernments are not automatically immune from antitrust liability and must now be vigilant asto which activities could subjectthem to antitrust liability. 0

FOOTNOTES

, 435 U.S. 389 (1978)., 455 U.S. 40 (1982)., 317 U.S. 341 (1943).4 James, Municipal Defense to Antitrust

Liability, 6 UALR L.J. 273, 274 (1983) (loot·notes omitted) (hereinafter "James").

S L & H Sanitation. Inc. v. Lake City Sanitation. Inc .. U.S.D.C. No. B-C-82-93.

I See. infra note 56. and accompanyingtext.

1 Patient Transfer Service v. Shackleford.et ai, U.S.D.C. No. LR-C-84-161.

• 519 F.Supp. 99i (S.D. Tex. 1981).I AffUiated Capital Corp. v. City of Hous

ton, 700 F.2d 226. 227 (5th Cir. 1983). OnAugust 23. 1983 the Fifth Circuit granteda rehearing. Affiliated Capital Corp.. 714F.2d 25 (5th Cir. 1983). Oral argumentswere heard January 9. 1984.

10 The National Law Journal. January 30.1984. at 3. col. l.

II California Retail Liquor Dealers ASBO.

ciation v. Midcal Aluminum Inc .. 445 U.S.97. 105 (1980) (quoting City of Lafayette.435 U.S. at 410).

l~ City of Lafayette. 435 U.S. at 408.U City of Boulder. 455 U.S. at 55.14 Gold Cross Ambulance and Transfer v.

City of Kansas City. 705 F.2d 1005. lOll(8th Cir. 1983) citing City of Boulder. 455U.S. at 51-52; City of Lafayette. 435 U.S. at415).

U James. supra n.4. at 279 <footnotes omitted).

It E.g.• Gold Cross Ambulance and Transfer v. City of Kansas City. 705 F.2d 1005.1012 n.11 (8th Cir. 1983); Alfiliated CapHalCorp. v. City of Houston. 7OOF.2d 226.237(5th Cir.) rehearing granted. 1983-2 TradeCases (CCm 65. 597 (1983); Town of Hallie v. City of Eau Claire. 700 F.2d 376.381(7th Cir. 1983).

11 City of Boulder. 455 U.S. at 51-52 n. 14.•• Town of Hallie v. City of Eau Claire. 700

F.2d 376 (7th CiI. 1983). appealliled.• 1 Gold Cross Ambulance and Transfer v.

City of Kansas City. 705 F.2d 1005 (8thCir. 1983).

21 Golden State Transit Corp. v. City of LosAngeles. 1984-1 Trade Cases (CCm 65.878 at 67. 671 (9th Cir. 1984).

21 James. supra note 4. at 286; Golden StateTransit Corp. v. City of Los Angeles.1984·1 Trade Cases (CCH) 65.878 at67.671 (9th Cir. 1984) !taxicabs).

n North Little Rock Transp. Co. v. City ofNorthLHtle Rock. 207 Ark. 976. 184 S.W.2d52. 55 (1945).

" 241 Ark. 204. 406 S. W.2d 879 (1966).u Id. at 880. Awards of exclusive franchises

pwsuant to Ark. Stat. Ann. § 73-240. andregulations promulgated by the Arkansas Public Service Commission. havealso been regularly upheld. E.g .• City ofVan Buren v. 64-71 Highway Water Co..270 Ark. 466. 605 S. W.2d 4i9 (1980).

" 693 F.2d 733. 746 (8th Cir. 1982)." Ark. Stal. Ann. H 19-5903. 19-5094 [Acts

1981 (1st Ex. Sess.). No. 23. H 3 and 6].These sections are part of the MunicipalAmbulance Licensing Act.

27 Ark. Stat. Ann. 19--5003.21 Ark. Sta1. Ann. 19--5903. 19--5904.21 Ark. Stat. Ann. § 19-5902. Cities of the first

class with populations in excess of 35.CXXlare also permitted to own and operateambulances and to provide ambulanceservice to their own citizens on a proprietary basis. It is not entirely clear howa city which owns and operates an ambulance service could comply with thecompetitive solicitation requirements ofArk. Sta. Ann. H 19-5902 and 19-5906. Thecity might. however. own and operateambulances through an exclusive franchisee/lessee selected through a competitive bid process.

21 Nei1her ambulances nor ambulance operalions are explicitly referred to in thisprovision. but 1he term "emergency medical services" used in the statute is defined in Ark. Stat. Ann. § 19-5903 as in·eluding transportation of the critically illor injured. Likewise. the term "emer·gency medical health care facilities" isdefined in Ark. Stat. Ann. § 20-1703(w) toinclude ambulances and emergencyvehicles. These statutes are in parimateria and must be construed cons is·tently with each other. Each of these sec·

lions was enacted as part of the Municipal Ambulance Licensing Act. Ac1S 1981(1st Ex. Sess.). No. 23. §§ 3. 8(a). 9. Assuch. it is reasonable to interpret thegrant of authority in Ark. Stat. Ann. §19-2319 as including the right to regulateand control emergency ambulance operations.

11 Ark. Stat. Ann. 20.1704." 705 F.2d 1005. 1014 (8th Cu. 1983).lJ Mo. Rev. Stat. § 67.300.'4 Ark. Stat. Ann. § 20.1701. et seq. [Acts

1975. No. i42. § I. et seq.).n Ark. Stat. Ann. § 19-3513.n Id." Ark. Stat. Ann. 19-3513.u Id.U Ark. Stat. Ann. § 75-203.41 Golden State Transit Corp. v. City of Los

Angeles. 1983-1 Trade Cases (CCH)65.448 at 70.558 (C.D. Cal. 1983). It shouldbe noted. however. that Golden State assumes that the active sta1e supervisionrequirement does not apply to local governments.

tl See e.g.. Central Iowa Refuse Sys1ems v.Des Moines Metropolitan Solid WasteAgency. 7i5 F.2d 4i9, n.ll (8th Cir. 1983);Gold Cross Ambulance and Transfer v.City of Kansas City. 705 F.2d 1005. 1011(8th Cir. 1983).

U See. notes 22 through 24 and accompanying text.

U Bridges v. Yellow Cab Co.• 241 Ark. 204.406 S.W.2d 879 (1966). But see North LittleRock Transp. Co. v. City of North LittleRock. 207 Ark. 976. 184 S.W.2d 52 (1945).

t4 Golden State Transit Corp. v. City of LosAngeles. 1984-1 Trade Cases (CCH)65.878 at 67.671 (9th Cir. 1984).

.. Ark. Stat. Ann. § 17-4109(3) (d).

.. 185 Ark. 983. 50 S.W.2d 236.237 (1932)." Ark. Stat. Ann. §§ 19·3501-3511.U Ark. Stat. Ann. § 19-2329.tt Willis v. City of Fort Smith. 121 Ark. 606.

i82 S.W. 275. 276 (l9i6).u 1983.2 Trade Cases (CCH) " 65.684 at

69,299·199 (N.D. Ill. 1983).slid.U Ark. Stat. Ann. § 82·2705. 82-2706 [Acts

1971. No. 237. §§ 5. 6 as amended}. Thesesections are part of the Arkansas SolidWaste Management Act.

s, Ark. Stat. Ann. § 82-2702.St Ark. Stat. Ann. 82-2713.lJ Id... Ark. Stat. Ann. § 82-2705(c). 82-2706(e).

See also. Ark. Stat. Ann. § 82-2719(c)." Ark. Stat. Ann. § 82-2705(b). 82-2706(b).u Ark. S1at. Ann. 82-2719(0) and (b)." Ark. Stat. Ann. § 82·2705(a) and (d). 82·

2706(0) and (d). 82·2713. 82-2720.10 Central Iowa Refuse Systems. Inc. v. Des

Moines Metropolitan Solid WasteAgency. 715 F.2d 419 (8th Cir. 1983).

II Id. 01 428.12 No. B-C-82-93 (£.0. Ark .. Batesville Div.

1983) appeal filed. Apart from theconsideration of the federal antitrustlaws. Judge Eisele noted that the granting of an exclusive solid waste utilityfranchise was consistent with Arkansas

law as enunciated by the Arkansas Supreme Court in Geurin v. City of LittleRock. 203 Ark. 103. 155 S_W.2d 719 (1941).See also. Annot.. Validity of Statutory orMunicipal Regulations as to Garbage. 15A.L.R. 287 (1921); 72 A.L.R. 570 (1931); and135 A.L.R. 1305 (1941).

., Ark. Slat. Ann. § 19--2825. 19-2828. 192829.

It Ark. Slat. Ann. 17-1112.17-1113.IS Arkansas courts have recognized tha1 the

enforcement of zoning restrictions canhave the eUect of creating a "monopoly"of the usable business or commercialreal property in a particular locale. City01 LitUe Rock v. Sun Building & Developing Co.. 199 Ark. 333. 134 S.W.2d 582(1939).

.. Mason City Center Associates v. City ofMason City. 468 F.Supp. 737 (N.D. Iowa1979). aU'd in part and rev'd in part. 671F.2d 1146 (8th Cir. 1982); and Schiessle v.Stephens. 525 F.Supp. 763 (N.D. Ill. 19B1)."Bad faith" use of a city's orcounty's zoning powers could be aimed at benefiltingthe landowner's competitor or the city orcounty itself because it wishes to com·pete with the landowner. Along theselines. see Parks v. Watson. 716 F.2d 646(9th Cir. 1983). in which Ihe court reversed a lower court's granl of summaryjudgment in favor of the defendants onthe plaintiff's antitrust claim that the defendants' refusal to vacate plaited citystreets unless the plaintiffs first transferred to the city valuable geothermal wellsviolated federal antitrust claims. Thecity at the time operated other geothermal wells on a proprietary basis.

" 693 F.2d 733. 746 (8th Cir. 1982)... Ark. Stat. Ann. § 73-20i(d).II Ark. Stat. Ann. § 84-103.3.71 City of Boulder n.2; Affilia1ed Capital

Corp. n.5.71 1984.1 Trade Cases (CCm 65.789 (D.C.

Ariz. 1983).71 Id. at 72.266.n Id. at 72.267.

H Opinion of the Attorney General ofMaryland (to Town Manager Krebeck).1984-1 Trade Cases (CCH) 65.875 at67.652 (1984). Although beyond the scopeof this article. the Attorney General dealtin depth with various antitrust theoriesin concluding that the granting of theexclusive franchise could be upheldwithout the protections of the s1ateactiondoc1rine.

H S.B. 66.,. S.B. 66. § 8.

July 19B4/Arkansas Lawyer/133

IN

MEMORIAM

C. R. (Dick) Huie

C. R. (Dick) Huie. aged 75, anArkadelphia attorney and the firstexecutive secretary of the Arkansas Judicial Department, diedSaturday, February 25. 1984.

A native of Arkadelphia, Huiewas appointed executive secretaryof the Judicial Department on JulyI. 1965. He retired on December 31.1979.

Huie was elected to the stateHouse of Representatives fromClark County and served in the1933 session. He was elected prosecuting attorney of the Eighth Judicial District in 1938 and served twoterms.

He was appointed circuit judgeof the Eighth District in 1951 andserved two years. He was also aformer Clark County municipaljudge.

Huie was in the Navy duringWorld War II and participated inthe capture and occupation ofSaipan, Tinian, Guam. Iwo limaand Okinawa and participated inthe occupation of Japan. He received the Bronze Star and wasserving as Flag Lt. to the Fifth FleetCommander at the war's end. Hewas separated from the Navy withthe rank of lieutenant commander.

A member of the Arkansas BarAssociation for 47 years, Huieserved terms on the Membership,


Public Relations, Audit. Jurisprudence and Law Reform, Resolutions, Uniform Laws, InsuranceLaw, Constitutional Reform andBanking Law Committees. He alsochaired the Association's YoungLawyers' Section.

Huie was also president of theProsecuting Attorneys Association, secretary of the JudicialCouncil, secretary of the JudicialRetirement Board, secretary of theState-Federal Judicial Council andchair of the National Conference ofCourt Administrative Officers.

He was chair of the ArkadelphiaWater and Sewer Commission,president of the ArkadelphiaChamber of Commerce and president of the Arkadelphia RotaryClub.

Huie was also a member of theAmerican and Southwest Bar Associations.

He was admitted to the Bar in1931 and entered law practice withhis father. He was the son of Mr.and Mrs. R. W. Huie, Jr.. and thegrandson of Capt. R. W. Huie, anearly settler of Arkadelphia.

Huie was a graduate with honors of the University of ArkansasLaw School and of HendersonState Teachers College (now Henderson State University). He was amember of the debating team andfootball team when Hendersonwas state college champion. Hereceived the Distinguished Alumnus Award from HSU in 1977.

He was a trustee and lifelongmember of the First UnitedMethodist Church in Arkadelphia.He served on the Board of Stewards, as church school superintendent and sang in the ChancelChoir.

Survivors ale a son, CyrusRichard Huie, Jr., of Dallas, Texas;a daughter, Diane Huie Balay ofLittle Rock; a brother, William O.Huie of Austin, Texas; and threegrandchildren.

Elton A. Rieves, Ir.

Elton A. Rieves, Jr.. aged 75, ofMarion, died Friday, March 23,1984.

A native of Marion, Rieves practiced law for 53 years and was ofcounsel with the Rieves andMayton law firm in West Memphis.He had been a special justice forthe Arkansas Supreme Court.

He was a graduate of the University of Memphis Law School (nowknown as the Memphis State LawSchool) and attended ArkansasState University. He passed theArkansas Bar Examination in 1928,but was not allowed to become amember of the Bar until reachinghis 21st birthday in 1930.

Rieves was a Crittenden Countydeputy prosecuting attorney from1933-37, was the mayor of Marionfrom 1939-43, was a governmentappeal agent for local Board B inCrittenden County from 1940-47and was a member of the Board ofEducation, School District of Marion, from 1945-50. He was also amember of the Arkansas StateBoard of Law Examiners from1955-58.

He was a member of the Arkansas Bar Association for more than30 years. He served on the JudicialNominations, Unification of theBar, Reorganization of the Bar,Preceptorship, Tax Trust and Estate Planning and Legal InternshipCommittees. He also worked to revise Arkansas' Civil Procedure.

Rieves was past-president of theCrittenden County Bar Association, a member of the AmericanBar Association, American Judicature Society, the Association of Insurance Attorneys and was a Fellow in the American College ofProbate Counsel.

He was active in the Marion FirstUnited Methodist Church and wasa thirty-second degree mason.

Survivors are his wife. Grace A.Rieves; a son, Elton A. Rieves III. ofWest Memphis; a daughter, SallyConley, of Albuquerque, NewMexico; a step-daughter, Rose-

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IN MEMORIAM(continued from page 134)

mary Rose. of West Memphis;three grandchildren and onestep-grandchild.

Donald Paul Callaway

Donald Paul Callaway. aged 49.of Fort Smith. died Sunday. April I,1984.

Callaway was a partner in theBethell, Callaway, Robertson andBeasley law firm in Fort Smith. Hehad been a member in the firmsince 1961. He was a native of FortSmith.

He was past-president of theSebastian County Bar Associationand member of the American BarAssociation and Trial Lawyers ofAmerica.

Callaway was a member of theArkansas Bar Association for 25years. serving as vice-chair andsecretary of the Family Law Section and as a member of the Federal Legislation and ProceduresCommittee.

He was admitted to practice before the United States SupremeCourt, the U.S. Court of Appealsand the U.S. District Court. He wasa member of the Defense ResearchInstitute, Inc" the Arkansas Western District Selective Service Appeals Board and the Western Arkansas Legal Services Board of Directors.

Callaway was past-presidentand district governor of the Sertoma Club, past-president of theFort Smith Symphony, pastpresident of the ToastmastersClub. secretary-treasurer of theWestern Estate Planning Counciland was a member of the FirstUnited Methodist Church.

He attended the University ofArkansas and the U of A LawSchool. He was admitted to the Barin 1959 and joined the Army, wherehe served in the Judge AdvocateGeneral's Corps until 1961. attaining the rank of major. He returnedto Fort Smith in 1961 to start his lawpractice. He remained in the ArmyReserve until 1970.

Survivors are his mother,Elizabeth Callaway of Fort Smith,and an uncle. Hugh Reynolds, ofOrlando, Fla. 0

President's Report(continued from page 119)

Bar, and trial practices in thosecourts.

The concept met with such verbal approval by the trial judges atthe Judicial Council conferencethat a committee was appointed tostudy the proposal. That committee is to report at the Council's nextmeeting in October, 1984. In theevent the report is favorable, theAssociation will undertake to seekofficial status of trial practicecommittees through action by theArkansas Supreme Court.

This report will be published inthe July issue of the ArkansasLawyer and is my last report. AsSam Goldwin said, "Forecasts aredangerous, particularly thoseabout the future." However, because the Association's activitiesdo not neatly begin and end with

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The Association will be guidedunder the able leadership of BillWilson. The capable administration of our fine executive director,Bill Martin. will bring quality services to the Association members.

I have greatly enjoyed the distinction and privilege of beingyour president. I thank each of youfor the opportunity to lead this linelawyer organization. 0

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The Arnoldsof Southwest

Arkansas

102 YEARS OF LAW

In 1879, William Hendrick Arnold, a seventeen-year-old schoolteacher in Clark County, began inearnest to read Blackstone andother relevant legal matter as afirst step to becoming a lawyer. Hisformal education had included attendance at Ansley's Academy atArtesian, a kind of preparatoryschool that his father David SaxonArnold, a farmer, had helped establish; but the considerablelearning that he acquired thereafter was entirely by dint of individual effort. David Saxon Arnoldhad received a classical educationat Erskine College in SouthCarolina in the l840s before moving to Arkansas, but much formaleducation for his family was madeimpossible by the civil war and itsaftermath.

In 1862, David enlisted in theconfederate cause in El Dorado,and he returned home in 1864 afterbeing discharged as a captain inthe Louisiana Cavalry. His wifeTemperance Lucinda Arnold,speaking of his military commissions, wrote: "I remember the oldpapers with the seals. worn andbroken where they were folded.They were such sad old relics, funereal in every respect. We never

talked of them, and looking backnow it seems to me we laid it alldown and tried to forget all its horrors. I do not know what became ofhis sword.'" During the war, thefamily became refugees and settled for a time in Miller Countynear Garland City until the warended. After the war, of course,there was very little in the way ofeducation available. WilliamHendrick Arnold wrote that "wenever had any schooling in thosedays other than for a few months inthe year at uncertain intervals.Teachers could not be had as thepeople were all very poor on account of the ravages of the civilwar."2

It would be some time after thewar ended before even normalcivil regulation, much less anything resembling schools, could bevery firmly established. David Arnold's cotton was sometimes stolen by the Union soldiers occupying South Arkansas. On one occasion, William reports, "a cavalcade of these officers came to ourhouse ...and simply took possession. They had their own cook withthem, and the family, consisting ofmy mother and us children, stayedout of the house, and I never heard

By Morris S. "Buzz" Arnold


L to R: Sheppard Arnold, Thomas Saxon Arnold, Richard Lewis Arnold.William Hendrick Arnold. Jr. (1893-1977). William Hendrick Arnold III. andRichard Sheppard Arnold. The picture in the back is of William HendrickArnold (1861-1946),

such frying and cooking as went onin our kitchen. I came very nearstarving as these men had spentthe previous night with us, andafter they had gotten through eating their dinner which I rememberwas cooked with so much noiseand sputtering, there was one biscuit as large as a saucer left and Imade a grab for it, but my motherseized me and told me not to touchit. She thought it was a Yankeebiscuit, and threw it out.'"

Why William turned to the law isnot altogether clear. Perhaps itwas because his paternal grandfather Ira Arnold had been a trialjudge in South Carolina as hadothers of his eighteenth-centuryancestors, Just as likely, it was because farming was not much to hisliking, Recalling the days whenhis work at Ansley Academy hadbeen interrupted by farm duties,he wrote that he "plowed up newground in which there were roots ofelm trees running all around on topof the ground. I made some marvelous escapes and sometimes theplow would strike a stump or rootand the handles would be thrustagainst me, other times the rootswould fly back and strike my kneesand shins. I pursued this work with

so much energy that one of myknees swelled up for six weeks,and while I was in bed I continuedmy studies. '" It was then, he said,that he read "history, biographiesof great men, exploits of greatgenerals, especially Napoleon,and had it in my mind that I possessed great military genius, andresolved to be a general in war,and a lawyer in time ofpeace, , ,These golden dreamshave recurred with less frequencyas the years have gone by, and Ihave reached the conclusion that agood, reliable citizen is worthmore to a country than some ofthose who agitate and bring onstrife. ,,~

William's ambition to become alawyer, however. was in factrealized. In 1881 he took up thestudy of law in the offices of Warren & Mitchell in Prescott. Likemost nineteenth-century legal apprentices. he did not think veryhighly of the tutelage that he received, "With references to reading law in the office of Messrs,Warren and Mitchell." he wrote, "itmay be said that, so far as myknowledge goes, students are, inthe main. always self-instructed,the old lawyers seldom ask any

questions of the students with reference to books, and the conver·sation seems to relate to practicalmatters or incidents of the presenttime and in detailing their own experiences and successes, their failures never mentioned,'" Indeed,he said that his mentors "were seldom in the office,'" In 1882 he wasadmitted to the bar and, after practicing a few months in Prescott. in1883 he moved to Texarkana andestablished an office.

He arrived in Texarkana, a townbarely ten years old, with fifteensecond-hand law books, a bed andmattress, "a little old tin or zinctrunk," and forty dollars in cash.'He rented a small room from W. J.Smithers, a justice of the peace, for$2.50 a month. His circumstanceswere something less than palatial:"There were holes in the floor," herecalled, "through which the rats,large and smalL ran back andforth all the live long night. He alsoclaimed that "the dirt on the floorand tobacco juice had accumulated and must have beenhalf an inch thick in places," but he"slept securely in that old building, although one would not havethought it very secure as therewere fires in Texarkana at thattime nearly every night. andnearly everything in the town wasburnt up first and last except thatold building,'"

As might be expected, it tookWilliam some time to establish apractice. He bagan his work in theJ. P. courts of Texarkana, and oneof his first cases was a suit againstone L. Samuel. a pawnbroker, for awash-pot. The claim was that thepot was stolen from his client, butthe defendant's expert (a hardwareman) testified that "there were agreat many black pots in the worldof this size. and it was doubtfulwhether you could identify onefrom the other," On the basis oftheir testimony the case wentagainst William and fifty yearslater he could still feel the sting:"The loss of the wash-pot case," hewrote, "hurt my conscience verymuch, and I thought that there wasno justice in law ."10

William claimed that "he wasnaturally shrinking and timid" andtherefore his "business was notvery extensive for a long time,"especially since he did not "cultivate acquaintances" or "mix


U.S. Supreme Court Reports, L EdUSCSFederal Procedural Forms. L EdFederal Procedure. L EdBankruptcy Service, L Ed

Texas in 1948. In 1950 he wasgraduated from the University ofTexas Law School and the sameyear was admitted to the bar ofTexas. In 1953 he was admitted tothe bar of Arkansas and in 1966was elected circuit judge of theEighth Judicial District of Arkansas. He is presently engaged in thepractice of law in Texarkana in thefirm of Arnold and Arnold with hisbrother Thomas Saxon Arnold.Thomas was born in 1928 and wasgraduated from Rice University in1949 and the University of TexasLaw School in 1952. He was admitted to the bar of Texas in 1952, thebar of Arkansas in 1953, and thebar of Colorado in 1977. For manyyears he has had interests in various title companies in the southwestern United States.

Richard Lewis Arnold's first son,Richard Sheppard Arnold, wasborn in 1936. He was graduatedfrom Phillips Exeter Academy in1953, Yale College in 1957, wherehe was first in his class, and Harvard Law School in 1960, where hewas again first in his class andserved as an editor of the HarvardLaw Review. In 1960 he was admit-

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lips Exeter Academy in 1913 andattended the University of theSouth. In 1918 he was admitted tothe bar of Arkansas. In 1920, at theage of 24, he was elected to theArkansas House of Representatives. In 1922 he was elected to theArkansas Senate by a majority oftwo to one and served one fouryear term. He died in 1936 afterbeing stricken while trying a casein Miller County.

Richard Lewis Arnold, William'syoungest son, was born in 1906. Hewas graduated from Phillips Exeter Academy in 1925, Yale Collegein 1929, and Harvard Law School in1932. He was admitted to the Arkansas bar in 1931 and was formany years a member of the Boardof Directors and General Counselof Southwestern Electric Power Co.He twice served as special associate justice of the Supreme Courtof Arkansas. He is presently livingin Texarkana.

William H. Arnold, Jr. had twosons, both of whom becamelawyers. William Hendrick Arnold, III was born in 1923. He attended Rice University and received a B.A. from the University of

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around with the business interest."" In time. however, he prospered, acquired a very large general practice, and argued severalcases before the Supreme Court ofthe United States, He also was evidently able to overcome his purported shyness sufficiently to beelected four times city recorder ofTexarkana (l885-88). mayor ofTexarkana (1892-94), and presidentof the Texarkana School Board inwhich capacity he served tenyears, In 1907 he was elected president of the Arkansas Bar Association, He also served as chairman ofthe Miller County DemocraticConvention of 1917, In 1923 he attended the organizational meetingof the American Law Institute, In1925 he was appointed special associate justice of the SupremeCourt of Arkansas and in 1929 waselected special judge of the EighthCircuit of Arkansas by the bar ofthat circuit to fill a vacancy.

William Hendrick Arnold's eventual success in the law, the practice of which he vigorously pursued until his death in 1946, wouldmake it possible for his children toenjoy educational advantages thathe had been denied. His first child,Jodie Claypool Arnold, attendedRandolph Macon Woman's College and the Drexel Institute; LucyArnold, his next child, received aB.A. from Randolph Macon in 1911;and Ruth Arnold, the third daughter, attended Vassar and the University of Chicago.

The sons, all of whom were tobecome lawyers, were also outfitted with the finest possible educations. William H. Arnold, Jr., theeldest son, was born in 1893, wasgraduated from Phillips ExeterAcademy in 1911. Harvard Collegein 1915, and Oxford University in1918. He attended Oxford as aRhodes Scholar and was a studentat the Inner Temple in London. Hewas admitted to the Arkansas Barin 1916. He served in the Army inFrance during World War I, andwas also a member of the Texasand Louisiana bars. William, Jr.was chairman of the Miller CountyDemocratic Central Committeeand was engaged in the generalpractices of law in Texarkana untilhis death on November 6, 1977.

David Christopher Arnold, William's second son, was born in1896. He was graduated from Phil-

138/Arkansas Lawyer/luly 1984

ted to the Arkansas bar after having made the highest score on thebar examination given in July ofthat year. In 1961 he was admittedto the har of the District of Columhia. After a year's clerkship withMr. Justice Brennan of the SupremeCourt of the United States, he practiced for a time with theWashington firm of Covington andBurling before returning to Texarkana to join the family firm in 1964.He was elected a delegate to theArkansas Constitutional Convention of 1969-70 and for a number ofyears worked for Governor andlater Senator Dale Bumpers. In1978 he was appointed a UnitedStates district judge for the Eastern and Western Districts of Arkansas and in 1980 he was elevated to the United States Court ofAppeals for the Eighth Circuitwhere he presently sits. Judge Arnold's wile, Kay Kelley Arnold, agraduate of the University of Arkansas and the UALR Law School.was admitted to the Arkansas barin 1981. Morris Sheppard Arnold,his brother, was born in 1941. Hewas graduated from Phillips Exe-

ter Academy in 1959, attended YaleCollege, and was graduated fromthe University of Arkansas in 1965and the University of ArkansasLaw School in 1968 where he wasEditor-in-Chief of the ArkansasLaw Review and first in hisgraduating class. He was admitted to the Arkansas bar in 1968. In1969 he received an LL.M. and in1971 an S.J.D.. both from HarvardLaw School where he was aTeaching Fellow in Law in 1969.He has taught law at a number ofAmerican universities and in 1978was a member of the Law Facultyof Cambridge University. He ispresently a professor of Law andHistory at the University ofPennsylvania where he served asvice president of the Universityfrom 1979 to 1981. In 1982 he waselected state chairman of the Arkansas Republican Party and thesame year was appointed specialchief justice of the Supreme Courtof Arkansas.

Though this list is long, it has notexhausted the list of Arkansas Arnold lawyers. John H. Arnold, William Hendrick Arnold's first

cousin, was born in 1864, read lawin the Prescott firm of Smoote &McRae, and was admitted to thebar of Arkansas in 1884. He latermoved to Washington, Arkansas,where he became mayor and amember of the firm of Williamsand Williams. He died in 1925. Finally, W.H. (Dub) Arnold prosecuting attorney in Arkadelphia, is adistant cousin.

The Arnolds have been practicing law in southwest Arkansas forone hundred and two years. Witheleven of them having been admitted to the Arkansas bar, the Arnolds have one of the longest andfullest family legal traditions inthe state. 0

NOTES1. w. H. Arnold. The Arnold Family 22

(1935).2. Id. at 171.3. Id. at IB4.4. Id. at 173.5. Id. at 173-74.6. Id. at ISS.7. Id.B. Id. at IB6.9. Id.

10. Id. at IBB.11. [d.

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Iuly 1984/Arkansas Lawyer/!39

The Arkansas Courtof Appeals

On November 7. 1978. the votersof the State of Arkansas approvedAmendment 58 to the ArkansasConstitution. which provided forthe creation of the Arkansas Court01 Appeals.' The impetus lor thenew court had come from membersof the Arkansas Supreme Courtand others in the legal professionwho argued that the state's judicial' system. and specifically theSupreme Court. would suffer without it. Proponents argued that thenew court would reduce the Supreme Court's workload. allowjudges more time to consider casesand write opinions. and make theappellate process quicker andmore efficient. 3

Because the creation of the Courtof Appeals brought about such adramatic change in the Arkansasjudicial structure. requiring theexpenditure of a substantial portion 01 state funds.' the generalpublic. as well as the members ofthe bar. have a right to knowwhether the change has been abeneficial one.

This study was undertaken as anattempt to determine whether theprojected benefits have accrued.and what effects. if any. the crea-

Editor's Note: James D. Gingerich is University Counsel and assistant professor of Political Science at the University of CentralArkansas. He is a 1980 graduate ofthe University of Arkansas Schoolof Law in Fayetteville. He receivedhis L.L.M. in 1982 from the University of Bristol. England.

This article is a condensed version of a paper which won top honors at the February meeting of theAdansas Political Science Association in Jonesboro.

140lArkansas LawyerlJuly 1984

WAS ITWORTH THETROUBLE?l

By James D. Gingerich

tion of the court has had on theSupreme Court. Several factorswere chosen to measure changesin the Supreme Court during theyears immediately preceding andfollowing the creation of the Courtof Appeals. The results of thosemeasurements were thenanalyzed to determine the natureand extent of the effect. andwhether the new court hasachieved those things which wereexpected of it.

1. The Creation 01 theCourt 01 Appeals

At one time. the workload of theArkansas Supreme Court was verystable. In 1964. a total of 464 caseswere disposed of by the court.' In1970. that number had risen to 716'and by 1976. they totaled a staggering 1037 cases-an increase of123"10 in only 12 years.' The earliestappeals for help came from withinthe membership of the SupremeCourt. In his 1976 annual report tothe Governor and General Assembly. then Chief Justice CarletonHarris wrote:

Justices of the Supreme CourtwIote an average of over 73opinions each in 1976 as compared with an average of 65during 1975. substan tially abovethe national averages for states

without an intermediate appeallate court. Total workload ofthe Court increased by almost 30per cent during 1976 as compared with 1975. Despite theheavy workload. the Court remains current. but it will be diflicult for the Court to keep pacewith its skyrocketing workloadin the years to come unless helpin the form of an intermediateappellate court for Arkansas isforthcoming.(8JThe same theme was echoed in

civic meetings and legislativecommittee hearings in subsequentmonths by other members of theCourt. educators. and legal practitioners. These efforts realized success in March of 1977. when theArkansas General Assembly approved Senate Resolution 5. 7

which allowed the proposal to beplaced on the ballot in the 1978general election. By more than atwo-to-one margin.' the proposalwas approved by voters asAmendment 58 to the ArkansasConstitution.

The amendment itself was notvery specific. It simply providedthat the General Assembly wasempowered to create a court of appeals with such "jurisdiction as theSupreme Court shall by ruledetermine." All provisions concerning the number of judges.method of election. length of term.method 01 selecting the chiefjudge. and issues relating tosalaries and staff support were leftto the Legislature.

This lack of specificity led to anintense debate. especially in legalcircles. concerning the legislationto implement the amendment. In avote in January of 1979. the Houseof Delegates of the Arkansas Bar

Association was closely dividedover the bill which was then beingdebated before the General Assembly. The most controversialprovisions concerned the sixperson composition of the court.which could lead to evenly splitdecisions. and the selection of thechief judge by the chief justice ofthe Supreme Court." The legislators. after lengthy discussionsand several amendments. eventually enacted Act 208 of 1979. including both of those provisions. OnJuly 7. 1979. Governor Bill Clintonappointed the court's first members l2 and its first opinions werehanded down one month later.

II. Measurementsand Expectations

When the creation of the Court ofAppeals was being debated, proponents argued that the followingbenefits would result: (I) the workload of the Supreme Court wouldbe decreased; (2) the SupremeCourt would be able to hear onlythe more "serious'. cases, havemore time to decide them. andconsequently, write "better" opinions; (3) the appellate processwould become quicker and moreefficient; and (4) duplications inthe appellate process would beavoided. In order to measurewhether these benefits have accrued. nine criteria were selectedas measurement tools. SupremeCourt decisions over a seven yearperiod. from 1976-1982, werestudied." The criteria selected.and the reason for their selection.are as follows:

WorkloadTwo criteria were selected to

measure changes in the workloadof the Supreme Court. The first wasthe number of cases which weredisposed of during each term. Included in the figures were all appeals. petitions, and motions(other than motions for an extension of time) considered by thecourt which were finally disposedof during the term. The second

criteria selected was the totalnumber of majority opinions written each year. denominated into aper-justice average.

If the Court of Appeals has produced the desired result. thenumber of dispositions and majority opinions should decreaseafter the 1979 term.More Time to Consider Cases.Write "Better" Opinions

The objective of allowing justices more time to consider andwrite opinions is that it will allowtime for additional research,thought. drafting, and, in the end.produce a "better" opinion. Theproblem, of course, is in developing a set of criteria to measure thequality of an opinion which excludes. as much as possible, theintroduction of large amounts ofsubjectivity.

In an attempt to avoid this problem. a method similar to that usedby Roger Groot in his study of theNorth Carolina courts·" wasadopted. With Groot's method.there is no direct attempt to determine whether the quality of theopinion has improved. but simplyto note those changes which wouldindicate that additional time hasbeen put into the opinion writingtask.

Thus, four criteria were selectedfor measurement. The first two involve the average number ofconcurring and dissenting opinions written by each justice. In asystem in which a justice is overworked and pressed for time. it isreasonable to assume that if heagreed with the result reached bythe majority. he would join theopinion even though he disagreedwith the reasoning used. Likewise,a justice who disagreed with theresult of the majority would issuean opinion in only those cases inwhich he possessed very strongfeelings. In both instances. withmore time available to developand formulate his own reasoning,a justice would be more likely toexpress it. Thus. it should be ex-

pected that the number of concurring and dissenting opinionswould increase after the creationof the Court of Appeals.

A third criterion studied concerns the length of opinions. Withmore time available to do researchand develop and expand lines ofreasoning. the length of the justices' opinions should increase.Thus. if proponents were correct intheir projections, one would expectthe number of pages per opinion toincrease after 1979.

Finally, the number of percurium opinions was studied. Ifthe appellate courts are properlystructured so that the SupremeCourt hears only the more important cases, the number of thosecases disposed of with per curiumopinions should decrease. In addition, with more time to considercases, those which would havepreviously resulted in a per curiumorder could be handled with a fullopinion. Thus, if the Court of Appeals has had the desired effect,the number of per curium opinionsshould decrease after 1979.Make the Appellate ProcessQuicker and More Efficient

The obvious method of determining whether the appellate processrequires less time is to count theaverage number of days cases arebefore the court. The Arkansas Judicial Department has been tracking selected cases through thecourts for several years, and theirfindings are used here for this purpose. The time measured beginson the day in which the record isfiled with the Supreme Court andends on the day when the decisionis rendered. It should be expectedthat the amount of time will decrease following the creation of theCourt of Appeals.

As to the court's efficiency. thiscriterion is usually determined bymeasuring its currency. that is, thenumber of cases which are disposed of within the term as compared to the number of caseswhich are filed. With a smaller


workload. it should be expected the jurisdiction of the Supreme WORKLOAD AS MEASURED BY

that the disposition ratio of the Court prior to the creation of the NUMBER or DISPOSITIONS

court will increase after 1979. Court of Appeals is basically theARKANSAS COURT OF APPEALS. 1979-1982

Avoid Duplication of Appeals same as that presently shared by Non·TimeYear Appeals Petitions Motions Total

The final benefit noted by the the two courts,17 an indication of

Court of Appeals' proponents was what the Supreme Court's work-1979 226 96 93 415

that the structure of the court load would have been can be1980 905 158 284 1347

would insure that duplication in made by adding the workload of1981 886 178 361 14251982 1062 164 466 1692

the appellate process would be the two courts. The number of dis-

avoided. The only way a case once positions for the Court of Appeals Table 2

heard by the Court of Appeals may is found in Table 2. In 1982 had

reach the Supreme Court is by a these cases been added to the 2. Number of Majority Opinions.

grant of certiorari. In order to as- workload of the Supreme Court. A look at the average number of

sess the success of this structure. they would have totaled 1754 published opinions per justice

the number of petitions for review cases. As compared to the actual provides further evidence of the

granted by the Supreme Court workload of 1062 cases. this is a Supreme Court's decreasing work-

were compared to the total number real decline of 1692 cases. or 61% load. From a high of 77 majority

of cases disposed of by the Court of (See Table 3). Thus. it can be seen opinions per justice in 1978. the

Appeals. If the proponents were that the creation of the Court of average had dropped 41% to 45

correct. only a very small percen- Appeals has had a significant ef- opinions in 1982 (See Table 4). This

tage of the cases disposed of feet on the decline in the number of decline is even more dramatic

should have been accepted for re- dispositions by the Supreme when it is considered that the

view by the Supreme Court. Court. number of actual cases disposed of

III. Findings and Analysis" NUMBER OF DISPOSITIONS IN SUPREME COURT

I. Dispositions. At first glance. AND COURT OF APPEALS. 1976-1982 The shaded area repre.

there seems to be a little change in - Supreme Court sents tbe difference be-

the number of Supreme Court dis- - - . Court of Appeals tween the Supreme Court's

positions before and after the crea- - . - Total Both Courts actual workload and the

tion of the Court of Appeals (See 3000workload which would

2900 have resulted. had not the

Table I). In 1976. there were 1037 2800 Court of Appeals been

cases disposed of. rising to 1234 in 2700 created. ..... .

1979. By 1982. the number of dis- 2600 ,... .....-I - ...............

positions had dropped to 1062." a 2500 Idecline of only 14%

2400 I2300 I2200 I

WORKLOAD AS MEASURED BY 2100 INUMBER OF DISPOSITIONS 21XXJ I

ARKANSAS SUPREME COURT. 1976-1982 1900 I

Non-Time 1BOO I

Year Appeals Petitions Motions Total 1700 I_....

19761600 I --551 166 300 1037 1500 I

_.....

1977 576 190 268 1034 1400 -_.....

1978 585 203 282 1070 1300 ~

1979 657 244 333 1234 1200 - I

1980 512 312 398 12221100l00J I

1981 468 208 384 1060 900 I

1982 437 224 401 1062 BOO I

Table I 700 II

600 I

The figures are more enlighten-500 I400 I

ing. however. when compared to I

the number of dispositions which I I I I I I I

would have resulted had the Court 1976 1977 1978 1979 1980 1981 1982

of Appeals not been created. SinceTable 3

142/Arkansas Lawyerliuly 1984

in the Supreme Court alone had number of all opmlOns declined per case has declined." In 1976.remained fairly constant. This can during the period. The percentage the court published 256 opinionsbe explained by the fact that the of all opinions made up of concur- with an average of 4.5 pages perpercentage of cases disposed of ring opinions increased from 4% in case (See table 7). By 1982. thewith a written opinion has steadily 1979 to 13"10 in 1982. Thus. the ex- number of published opinions haddeclined (See Table 5). This de- pected rise in concurring opinions increased to 382. but the averagecline is largely a result of the de- after 1979 has. in fact. resulted. had declined to 3.4 pages per case.creasing number of appeals taken 4. Frequency of Dissenting The average has declined eachto the Supreme Court. which are Opinions. Similarly. the number of year since 1979.more likely to be disposed of with dissenting opinions has increaseda written opinion than are peti- over the period (See Table 6). From One possible explanation exter-tions and motions (See Table I). 1976-1978 the Supreme Court wrote nal to the Court of Appeals whichThe largest decline is from 1979 to an average of 52.33 dissenting may account for the decline is re-1980. a direct result of the effects opinions per year, representing an 10ted to the publication of theof the Court of Appeals. Thus it average of 8.66% of the total opin- court's opinions. It was at one timeappears that the creation of the ions handed down during the a policy of the Supreme Court tocourt has produced the desired period. From 1980-1982 the number publish only certain types of opin-result of decreasing the workload had increased to 70 dissenting ions; those which involved routineof the Supreme Court. issues or were not useful for refer-

WORKLOAD AS MEASURED BY NUMBER OF WRITTEN OPINIONSence purposes were not desig-nated for publication." In 1979.

ARKANSAS SUPREME COURT. 1976-1982this rule was changed to provide

# Maj. Ave. Per # Other Ave. Per All Ave. Per that "all signed opinions of the Su-Year Oninions Justice Opinions Justice Opinions Justice preme Court shall be designated1976 509 73 72 10 581 831977 488 70 54 8 542 77

for publication. Prior to 1979. there-

1978 539 77 95 14 634 91fore. many opinions which re501-

1979 453 65 91 13 544 78ved routine issues, and thus were

1980 352 50 141 20 493 70 more likely to be shorter opinions.

1981 327 47 112 16 439 63were not published; whereas. fol-

1982 318 45 100 14 418 80lowing 1979. all cases were in-cluded.

Table 4

NUMBER OF WffiTTEN OPINIONS NUMBER OF MAJORITY. DISSENTING. AND CONCURRING OPINIONSAS PERCENTAGE OF ARKANSAS SUPREME COURT. 1976·1982

TOTAL DISPOSITIONS Dissenting in Part andARKANSAS SUPREME COURT 1976·1982 Year Majority Cp. Dissenting Op. Concurring Op. Concurring in Part Total

Written # %# %# %# %# %Yea, Dispositions Opinions Percentage 1976 509 88"10 55 go", 11 2% 6 1% 5811976 1037 581 56% 1977 488 90% 37 7% 14 3% 3 0% 5421977 1034 542 52% 1978 539 85% 65 lOOk 24 4% 6 1% 6341978 1070 634 59% 1979 453 83% 62 11% 23 4% 6 1% 5441979 1234 544 44% 1980 352 71% 95 19% 35 7% 11 2% 4931980 1222 493 4oolo 1981 327 74% 79 18"10 26 6% 7 2% 4391981 1060 439 41% 1982 318 76% 36 9% 56 13% 8 2% 4181982 1062 418 39% Table 6

Table 5opinions per year, an average of3. Frequency of Concurring 6. Number of Per Curium Opin-

Opinions. In the three years pre- 15.33% of the total opinions. ions. Other than to note that theceding the creation of the Court of 5. Number of Pages Per Opinion. number of per curium opinionsAppeals. the Supreme Court wrote If the Supreme Court had declining rose dramatically in 1982, it is dil-an average of 16.33 concurring workloads and additional time to ficult to draw any conclusions fromopinions per year. In the years fol- consider cases, it is reasonable to the figures. The percentage of perlowing the court's creation. that expect that the length of opinions curium opinions decreased in theaverage increased to 39 o.pinions issued by the court would in- years preceding the Court of Ap-per year(See Table 6). This number crease. The evidence. however. peals. then began to rise slowlyincreased even though the total indicates that the number of pages until 1982 (See Table 8). The


expectation was that they would is solely attributable to the in- tell if the Court of Appeals has haddecrease after 1979. It may be that creased time to hear criminal any effect.the increasing percentage of the cases. The average time for civil DlSPOSlTION RATIO (CURRENCY)Supreme Court's workload made cases has declined each year since ARKANSAS SUPREME COURT 1977-1982'up by petitions and motions, as 1979. This added time to hear crim-

Number Number Dispositionopposed to appeals (See Table 1) inal cases is no doubt a result of Year Filings Dispositions Ralehas increased the use of per the change in the Supreme Court's 1977 1086 1034 95.21curiums. The number of appeals criminal jurisdiction. While the 1978 1012 1070 105.73decreased 21% from 1976 to 1982, court was hearing all criminal 1979 1116 1234 110.57whereas the number of petitions cases before the creation of the 1980 1281 1222 95.39and motions increased about 29"10 Court of Appeals, it now hears only 1981 1021 1060 103.81during the same period. Even if the most serious criminal cases in- 1982 979 1062 108.47this could be shown, however, it volving a sentence of death, life Table 10would not account for the dramatic imprisonment. or at least 30 years ~ figures for 1976 were not available.increase of per curiums in 1982. imprisonment. The more substan-

NUMBER OF PAGES PER CASE' tial issues, especially in capital 9. Number of Petitions for Re-ARKANSAS SUPREME COURT. 1976-1982 cases, have increased the amount view Granted. The last general

Year Cases Pages PIC of time these cases are before the goal stated by the proponents of1976 256 1159 4.5 court. As a result, the Court of Ap- the Court of Appeals was to insure1977 275 1102 4.0 peals has not had the immediate that the court did not slow down or1978 333 1367 4.1 result of decreasing the amount of complicate the appellate process1979 371 1626 4.4 time a case is before the Supreme by allowing a system of "dual" ap-1980 367 1515 4.1 Court. peals. Dr. Robert Leflar, one of the

AVERAGE TIME CASE IS leading ligures in the court's es-1981 375 1300 3.5 BEFORE APPELLATE COURT'1982 382 1288 3.4 ARKANSAS SUPREME COURT 1976-1982 tablishment. suggested that "3 or 4

Table 7 Ave. Ave. Ave. percent is too large, of the cases• Includes 011 opinions written and published by Civil Criminal All decided by the intermediate court,

the Supreme Court. including per curium opin· Year Cases Cases Cases [to] go on to the Supreme Court. ""ions. 1976 181 146 163.5 The ligures indicate that the sys-

PER CURIUM OPINIONStern has easily met that goal. In theARKANSAS SUPREME COURT 1976-1982 1977 178 137 157.5

Number Number1978 173 ISO 161.5 lirst six months of the Court of Ap-

Year Per Curiums Total Opinions % 1979 201 146 173.5 peals' existence, 8 cases, or ZOfc, of1976 43 624 7% 1980 184 209 196.5 the court's 415 total dispositions,1977 28 570 5% 1981 177 188 182.5 were heard again in the Supreme1978 16 650 2",(, 1982 146 153 149.5 Court (See Table 11). The per-1979 16 560 3% Table 9 centage has decreased each year1980 22 515 4% • Figures are based upon a yearly survey ofcases SO that by 1982, only .3% (5 of 1692)1981 46 485 9%

by the Judicial Deportment of Arkansas. AU of the Court of Appeal cases werecases in which there was a written majority

accepted for review.1982 106 524 20% opinion are included in the survey. Percuriums,

Table 8cases transferred pursuant to Rule 29, cases PETITIONS FOR REVIEW GRANTEDdismissed without opinions, and exceptional

ARKANSAS SUPREME COURT 1979-1982cases which tend to skew the statistical objec-7. Number 01 Days in Appellate tive of the survey were not included. Number- Total

Court. The results of the survey 8. Currency. With the currency Petitions Dlllpositions in

concerning the average length of level of over 100"10 in the calendar Ye", Granted Court of Appeals %

time a case is before the Supreme year preceding the creation of the 1979 8 415 2",(,

Court are somewhat mixed. The Court of Appeals, it is difficult to 1980 15 1347 1%

average time for all cases actually expect that level to be improved. In 1981 9 1425 .6%

rose substantially from 1979 to fact. the disposition ratio in- 1982 5 1692 .3%

1980-lrom 173.5 days to 196.5 days creased to 110.57"10 in 1979, drop- Table 11

(See Table 9). The average has ped to 95.39"10 in 1980, and then re- IV. Conclusionsteadily declined since reaching turned to above the 100% level in From this analysis, it can beits lowest point during the seven 1981 and 1982 (See Table 10). Be- concluded that the insertion of theyears in 1982 with an average of cause the Supreme Court did such Court of Appeals into the Arkansas149.5 days. an admirable job of remaining cur- appellate structure has been

While the average time for all rent despite a pressing workload largely successful. Most of thecases has increased, that increase before its creation, it is difficult to benefits which were projected by


the court's proponents have. infact. resulted. The decrease in theworkload of the Supreme Court.during a time in which the numberof appeals from lower courts hasincreased dramatically. has relieved the court of a tremendousburden. The substantial decreasein the number of majority opinionswritten per justice and the increasing frequency of concurring anddissenting opinions suggest thatjustices now have more timeavailable to consider cases. In addition. the court continues to beone of the most efficient in the United States.

The success of the new system isdue largely to the unique structureof the two courts. By providingeach court with its own separatejurisdiction. the largest possiblenumber of appeals can be processed and the problem of having"dual" appeals is avoided.

One of the goals which has notbeen so successfully met involvesthe nature of the cases heard bythe Supreme Court. While the ruleproviding for the division of thetwo appellate courts' jurisdictionwas intended to allow the Supreme Court to hear only the moreimportant cases and issues ofsome serious legal significance,recent additions to that jurisdiction have been made solely toeffectuate a balance between thenumber of cases filed in the twocourts. Thus in many instances.the cases heard by the SupremeCourt are no more important thanthose heard by the Court ofappeals-they are merely different. One might argue that whatresults is an appellate system having two supreme courts. However.so long as the Supreme Court retains the right to review casesheard by the Court of Appeals. itremains the "supreme" court, andany dilution of its jurisdiction ismore than outweighed by the advantage of smaller workloads andthe resulting quality and efficiency in the appellate process.

From a situation in which bulging dockets and increasing workloads were threatening the integrity of the Arkansas appellate system. the Arkansas Court of Appeals has emerged to save the day. Areview of the evidence suggeststhat its creation has had a positiveeffect on the Supreme Court andaccomplished those things whichwere expected of it. With the Supreme Court's ability to constantlymonitor the workload between thetwo courts. to make necessary adjustments. and to exercise controlover those cases which are accepted for review from the Court ofAppeals. the work product. efficiency. and effectiveness of theSupreme Court and the Arkansasjudicial system should continue toimprove in the years to come. 0

FOOTNOTES

I This is a condensed version of a paperwhich was presented to the ArkansasPolitical Science Association in Jonesboro, Arkansas in February, 1984.

2 Amendment 58 provides:The General Assembly is hereby em·powered to create and establish a Courtof Appeals and divisions thereof. TheCourt of Appeals shall have such appel~

late jurisdiction as' the Supreme Courtshall by rule determine. and shall besubject to the general superintendingcontrol of the Supreme Court. Judges ofthe Court of Appeals shall have the samequalifications as justices of the SupremeCourt and shall be selected in the man·ner provided by law.

J Arkansas Gazette. March 4, 1977. §B at 1.col. 7 and September 2. 1978. §A at 9. col.I.

4 In 1982. a total of S1.018.514 wasbudgeted for the 1983-84 Fiscal Year forthe salaries and operating expenses ofthe Arkansas Court of Appeals.

) First Annual Report of Judicial Department of Arkansas. [herein cited as Annual Report].

• 1979 Annual Report.

1976 Annual Report.

I Letter from Carleton Hanis to DavidPryor. contained in 1976 Annual Report.

I Senate Joint Resolution 5. Acts of Arkan·sas 1977. p. 2431.

II The official vote totaled 291.941 for theamendment. 141.792 against theamendment.

II Arkansas Gazette. January 21. §A at 9,col. 1.

12 The first members of the court includedM. Steele Hays, David Newbern. Mrs.Marian Penix. George Howard. Jr .. ErnieWright. and James Pilkinton. Thesemembers served until January 1. 1981.when the first elected members of thecourt assumed office. Arkansas Gazette.July 8. 1979. §A at I. col. 3.

IJ One problem with the figures which mustbe noted is the fact that the personnel ofthe court changed during this period.Three of the justices who were on thecourt in 1976 remained in 1982. The extentto which this change in personnel affected the court is not considered in thisstudy.

It R. D. Groot. "The Effects of an Inter·mediate Appellate Court on the SupremeCourt Work Product; The North CarolinaExperience." 7 Wake Forest Law Review548. 1971.

U Unless otherwise noted. all figures werecompiled from the Annual Reports of theArkansas Judicial Department for years1976-1982.

II The 1982 Annual Report. p. 21. incorrectlycalculates the total dispositions at 928.This appears to be due to an error in addi·tion for petitions and motions which islisted at 491. but actually totaled 625.

17 The only significant change in the juris·diction of the court concerned the addi·tion of appeals from the Employment Se·curity Division. Originally. these caseswere appealed to the circuit court in thecounty where the appellant resided. In1979. all such appeals were transferredto the Court of Appeals. Ark. Stat. Ann.§1107(dX7) (Rept. 1976). These cases can·stituted 154 dispositions in 1980. 360 in1981. and 391 in 1982.

II These figures were compiled from a review of all cases published by the Supreme Court for January 1. 1976-Decamber 31. 1982, contained in volumes531-644 of the South Western Reporter.2nd. Series. The figures used for eachcase include any page on which any parlof the case appeared.

I' See. Smith. "The Selective Publication ofOpinions: One Court's Experience:' 32Ark. L. Rev. 26 (1978) and Newbern andWilson. "Rule 21: Unprecedent and theDisappearing Court." 32 Ark. L. Rev. 37(1978).

20 Arkonsas Supreme Court Rules. rule21.1.

21 Arkansas Gazette. September 2. 1978 §Aat 9. col. 1.

July 1984/Arkansas Lawyer/l4S

BULLETINABA Model Rules on Professional Conduct:

An Update

I think it is fair to say that most ofthe criticisms of earlier drafts havebeen answered. There remains inthe minds of some lawyers andlaymen (as has always been thecase) doubts about the rules thatdeal with certain historically controversial subjects (particularlyconfidentialy and other aspects ofclient-lawyer relationships, somesubjects dealt with rules in the advocate category and the varyingbut deliberate use of both mandatory and permissive language).Nevertheless, most seem to agreethat the rules represent a comprehensive and responsible effortto keep the governing standardsfor professional conduct of lawyersabreast of the times and most likethe new restatement format. I urgeeach of you to take the time to readand study the proposed ModelRules and contact our Committeewith any suggestions or commentswhich you may have. 0

(504) 831-7695468-5518454·0774 (24 hours)392-7961

PLEASE WRITE FOR OUR BROCHURE

g. goldman & d1Hociate~J ...Ltd.CHEMICAL CONSULTANTS

• PRODUCT AND PROCESS LIABILITY CASES,• TOXIC SUBSTANCES (PESTICIDES, HAZARDOUS WASTE,

AND TRANSPORTATION).• CONTRABAND DRUG ANALYSIS AND BLOOD ALCOHOL

ANALYSIS. RANDOM AND ACCIDENT RELATED DRUGSCREENING

• TOXICITY OF CHEMICALS AND WASTES (TOSCA, EPA,NIOSH-REG, OSHA)

• MARINE AND OFFSHORE LITIGATIONS INVOLVINGPETROLEUM, CHEMICALS, AND HAZARDOUS CONDITIONS-OFFSHORE PERSONAL INJURY, EXPLOSIONS-FIRES

• SLIP AND FALL LITIGATIONS (COEFFICIENT OF FRICTIONINSTRUMENTS)

• PLASTICS AND NON-METALLIC FAILURES• LABORATORY ANALYSIS FACILITIES (CHEMICAL, BIO

CHEMICAL, DRUGS AND METALLURGICAL)• CONSULTANTS TO INDUSTRY, INSURANCE CO'S, AND

LEGAL PROFESSION• EXPERT WITNESS APPEARANCES

P.O. Box 8777Metairie, LA 70001

Moore, Jr. and Herschel H. Friday,chair. We are holding meetingsand making presentations to various bar associations and interested groups and will present aprogram at the Annual Meeting ofthe Arkansas Bar Association inHot Springs on Thursday, June 7,1984. We have not seen fit to set arigid timetable but will proceed asdiligently as possible.

The new rules contain a total ofeight categories and 52 individualrules as follows:

NumberCategory of RulesClient-Lawyer Relationship 16Counselor 3Advocate 9Transactions with Persons

Other than Clients .4Law Firms and Associations 6Public Service .4Information About

Legal Services 5Maintaining the Integrity of

the Profession 5

By Herschel H. Friday

On August 2, 1983, after morethan six (6) years of study and hearings, the American Bar Association House of Delegates approveda new set of rules governing theprofessional conduct of lawyers. Ifhistory repeats itself, these ruleswill ultimately be adopted substantially intact in most of thestates. Certain states have already taken action.

State bars or bar associations inPennsylvania, New Jersey andMichigan have recommendationsfor the adoption of the Model Rulesin their new format pending beforetheir supreme courts. In Pennsylvania a court-ordered commentperiod was expired and the ModelRules themselves and the StateBar Association's recommendations have been referred to the Disciplinary Board for final comment.The State Bar of Maryland's Boardof Governors is expected to approve a final version of its committee's report in time to make a recommendation to its Court of Appeals in May.

Arizona's high court isscheduled to receive a recommendation from their state bar shortly,and Montana and Kansas will report to their high courts in Apriland June, respectively. The state ofVirginia had adopted a new Codeof Professional responsibility inOctober, 1983, having used theModel Rules as a starting pointand adopting certain substantiveportions of the Rules, but adheringto the Model Code format.

In most of the other states thereare committees in existencecharged with the responsibility ofguiding the rules through thenecessary educational and adoption processes.

The committee in Arkansas(created by the Arkansas Bar Association) consists of Philip Anderson, John F. Stroud, Jr.. H. WilliamAllen, Howard W. Brill, Jack Deacon, John Fogleman, John GilLJerry W. Cavaneau, Richard N.

146/Arkansas Lawyernu:ly 1984

Wright will present an over·view of her work in bringingcurrent this handbook whichshe authored in 1980.

You are aware this is the yearof the Gridiron. Through the excellence of Griffin Smith thisproduction is always the addedattraction to an annual meet·ing.

Jane and I invite you to join usat the 86th annual meeting.

Dennis L. Shackleford


It will be a worthwhile ven·ture to hear presentations onbrief writing. internal operations, and discussions of recentdecisions. A panel composed ofFederal Appellate JudgesRichard S. Arnold and J. SmithHenley, and State AppellateJudges Richard B. Adkisson,

as director of Appellate JudgesSeminars. New York University.

ARKANSASBARASSOCIATION86TH Annual Meeting

APPELLATEhDVOChCY"

r-::.J . /I.

/\ LJohn Stroud has George Roseplanned an out- ~ Smith. Darrell D.standing program lIIo... Hickman anc,i Mel·for the annual vin Mayfield willmeeting. I am be featuredgrateful for his

JUNE 6-9, 1984speakers.

time and effort de- Available forvoted to making ARLINGTON HOTEL

distribution at thethese arrange- annual meetingments. HOT SPRINGS, ARK, will be an update

A program that of the "Appellateincludes judges of Advocacy Hand-the hi hest courts book. " Jackiegin which Arkansas lawyersusually practice merits your attention. You should seize uponthis opportunity to hear theHonorable Myron H. Bright. adistinguished judge. on how toprepare and make an effectiveoral argument on appeal.

Our moderator will be Dr.Robert A. LeHar. He has donemore than any individual inthis century to mold judicialattitudes through his teaching

A MINGLING OF BLUESAND FOLK MUSIC

EVENTSSOCIAL

"'::~" ,\\\\/f\. ~ ... .....- ../

. '.,\':)-'\ \,....- .. /~'. ." .... y .....-;....~.J

-. ". "" V''''.'--· ....'1"". ~.~.~:? \>:::' ....,--)-'j

Guida. 'VGuida has conducted

nationally-recognized work relating to Arkansas' blues music traditions. In 1976. he founded and directed the UAPB Blues Project. thestate's first effort to document itsblues traditions. He has also directed several ground-breakingfield research projects relating toItalian-Americans in the ArkansasDelta.

He has extensive experienceand credits in visual media. Hisstill photographs on Arkansasblues have appeared in BluesMusic in Arkansas (Philadelphia:Portfolio Associates. Inc" 1982).which he co-authored. LivingBlues and have been exhibited atthe Arkansas Arts Center and theMid-America Museum in HotSprings.

A graduate of the University ofPennsylvania. Guida has writtenfor Sebastropol (Ca.) Times and thePine Bluff Commercial. His articleshave appeared in San FranciscoMagazine. American Preservation. Living Blues and Center forSouthern Folklore Magazine. He isco-author of Hogs in the Bottom:Family Folklore in Arkansas (LittleRock: August House. 1982) and cofounder of Co-Media. Inc.

Washington. D.C., to the NationalFlat Picking Festival at Winfield,Kansas. They are featured on theNational Geographic Music of theOzarks album and have producedfive albums themselves.

Trenton Cooper. a Hope native.began playing piano at the age of12. His mother also played pianoand Cooper recalls that she wasfond of the elaborate ragtime stylethat he himself is now a master of.

By the time he attended collegeat Arkansas AM&N College at PineBluff. he was playing jazz andrhythm-and-blues with fellow students. lirst with the Czars ofRhythm and later with a 19-pieceorchestra called the Collegians.

After graduation he spent theearly 1950's touring with bandssuch as Jimmy Liggins' Drops of Joyand Jay Franks' band. These jazzand rhythm-and-blues groupsshared billings with artists such asMuddy Waters. Sonny Boy Williamson and Aaron "T-Bone"Walker.

Cooper is director of SecondaryEducation at the University of Arkansas at Pine Bluff.

He is featured on "Keep It ToYourself: Arkansas Blues. SoloPerformances" (Chicago: RoosterBlues Records. 1983), an anthologyof field recordings produced by

Arkansas blues and folk musicwill mingle when Jean Simmons, awell-known and popular ArkansasOzark musician. and TrentonCooper. a southwest Arkansasbluesman, perform during aspouses' program-A Sampling ofBrunch in the ArlingtonTradition-on Friday. June 8. at10:00 a.m .. in the Card Room, Arlington Hotel.

Louis Guida. an ethnographerand communications consultant.will moderate the program. He willpresent a videotape-"ArkansasVoices"-on Delta and Hill Country music. featuring special appearances by musicians includingCeDell Davis. a bluesman,

Simmons plays various instruments. including the guitar, bass.auto-harp, dulcimer, spoons anddancing dolls.

She has played for years as amember of the Simmons FamilyGroup. Their music spans a largesegment of moods and soundsfrom Old English Ballads. Mountain Hoe-Downs. Carter family andGospel to contemporary Country.

During the summer. this group ison stage three nights a week at theOzark Folk Center in MountainView. Arkansas. They have appeared at festivals from the National Folk-Life Festival at


PRESIDENT-ELECT'S RECEPTION

A reception in honor of WilliamR. Wilson, Jr., will open festivitieson Friday evening, June 8, from5:00 p.m. to curtain time for GRIDIRON '84. It will be held in thelobby and mezzanine of the Arlington Hotel and promises to bethe start of a delightful evening.

Wilson, a Little Rock attorney, isan alumnus of Vanderbilt School ofLaw, and has been in private practice in Little Rock since 1969. Heserved as deputy prosecuting attorney in Texarkana from 1965-66.He then served three and one-halfyears in the Navy. He was inducted

in March into the American College of Trial Lawyers.

The president-elect will assumethe presidency following theHouse of Delegates meeting onSaturday, June 9.

AIl registrants are invited to attend and enjoy the refreshments.

GRIDIRON '84--I HAMELOT"

The Pulaski County Bar Association's Gridiron '84 show will bestaged on Friday, June 8, in theCrystal Ballroom, Arlington Hotel.at 7:00 p.m.

Dubbed "Hamelot," this year'sproduction takes into account thedegree to which the jurisdiction offederal courts has expanded intothe boundaries of state activity.The question is "Should Arkansasbe governed directly by a receiverappointed by the Court of Appealsfor the Eighth Circuit?".

Come and enjoy the increasingsuspense over whether OUf liveswill be governed from St. Louis orLittle Rock, Your attention will bedirected toward medicalmalpractice-<lepicted through atelevision commercial for a lawfirm.

"Gridiron," of necessity, is beamed toward the legal profession.

Director: Margaret Carner. assistant professor of Theatre Arts atthe University of Arkansas at LittleRock. Stage Manager: Joe Carner,

director of UALR's Multi-MediaServices. Musical Director: LoriLoree, director of all musicals atMurray's Dinner Theatre, LittleRock, and various productionswith the Arkansas Arts Center,Opera Theatre, UALR Theatre andCommunity Theatre of Little Rock.Choreographer: Sally Riggs,owner of Studio One, North LittleRock.

Griffin Smith, Sr., and Bill Blair,Little Rock attorneys, are co-chairsof the Association's Gridiron committee.

Arkansasfest to OfferCountry Cooking and Bluegrass Music

An evening of hearty conviviality, country cooking, Bluegrassmusic and fun for all will be offered during an "Arkansasfest" onFriday, June 8, at 8:30 p.m., withmusic provided by Sugarhill. agroup with a repertoire which includes Folk, Country, Bluegrassand Gospel music.

Members of the group are JudgeDavid Newbern, of Fayetteville, onbanjo, mandolin and guitar, Dr. EdRyland, of Arkadelphia, on guitar,Charles Sandage of Beebe, onguitar, mandolin and pick andbow, David Treadway of LittleRock, on banjo, fiddle, mandolin,

guitar and dobro, and AubreyRichardson, of Mountain View, onbanjo and bass fiddle.

Selected melodies in a four-partharmony will accompany a meal offried chicken, catfish andhushpuppies, ham sliced on theline, baked beans, corn-on-thecob, potato salad, Southern stylegreen beans, fresh sliced tomatoes, sliced melon, peach andcherry cobbler and mixed salads.

Much of Sugarhill's music isoriginal. The group's main composers are Sandage, Ryland andNewbern. A portion of their presen-

tation will be old-time music,originating from the British Isles.

The group, which has been playing together about ten years, hasrecorded one album, "Rareback,"produced in 1980 at Snug HarborDinner Theater in Greers Ferry bythe Buckhart Recording Co.

lt has performed at the Festivalof Two Rivers in Arkadelphia, theOzark Folk Center in MountainView, the Mountain View Folk Festival and for the Bar Association,Arkansas Justice Foundation andmany other organizationsthroughout the state. 0


EXEClITIVE DIRECTOR'S REPORT

Good News: Dues Will Not Rise Next Year

By Wm. A. Martin

As I write this column in midApril-some six to eight weeks before you will read it-I am completing six months with the ArkansasBar Association. When I reviewthis first half year, I'm glad I amhere, The work is quite interestingand my involvement with the lawyers of Arkansas has been veryrewarding. I am continually impressed with the enormousamount of volunteer effort that isgiven to make our Bar Associationgo. I am delighted with the staff atthe Association headquarters. Idon't think you would find anothergroup of employees anywhere whoare more dedicated to keeping theAssociation successful and providing maximum service to itsmembers. They enjoy knowing andworking with lawyers.

From a personal standpoint, Iam back home in Arkansas, renewing lots of old friendships andmaking new ones. The change andgetting acquainted is harder on myfamily. The move from RandolphAir Force Base, San Antonio,Texas, last October was our fourthmove in just over six yearssomething that is very difficult lorteenagers.

DUES WON'T RISENEXT YEAR

Good news on the state of yourAssociation is: Dues are not goingup next year. Our last increasewas in 1979 and the one before thatwas in 1974. The American Bar Association tries to work on a threeyear cycle with the first year producing a surplus which is invested, the second year scheduledto be at the break even point andthe American Bar drawing from thesurplus and the interest it earnedduring the third year of a cycle.Our Association gets about 60 percent of its revenue from dues and

ISO/Arkansas Lawyer/July 1984

supplements that source 01 lundswith money from fees for programs, sale of systems, and interest from money we haveinvested-until it is time to pay forsuch things as printing new systems and computerizing our BarCenter records-advertising in theArkansas Lawyer and other smallincome sources, It looks like wewill about break even this year.The day will come when we willhave to ask for a dues increase, butthat time can be delayed if we canincrease membership enough tobenefit from spreading our costsover more members.

In mid-April we had almostexactly 3,000 members and will getseveral more after the April 30thadmission ceremony for new at~

torneys. StilL there are too manylawyers in Arkansas who are notmembers. I would like to ask eachmember to look at our new directory and see w he in your community is not included. Give thema personal invitation to join the Arkansas Bar Association.

NON-PROFIT PERMITCHALLENGED

Any organization has problemsand threats. One that has us mostconcerned right now is the Post Office's challenge to our non-profitbulk mail permit. Postal regulations limit such permits to nonprofit organizations whose primary purpose is religious, educationaL scientific, philanthropic,agriculturaL labor, veterans orfraternal. If our primary purpose isnot educationaL I don't know whatit is. It appears the Post Office maybe challenging all associationswith an Internal Revenue CodeSection 501 (c) (6) status as professional organizations. If we hadqualified with IRS under Section50I(c)(3) as exclusively educationaL we would be in better shapewith the Post Office. In early cor-

respondence the Post Officeseemed to be ignoring the difference between "primary" in its regulations and "exclusive" in the IRSCode, Also, in revoking the Oklahoma Bar Association's permitthe Post OUice objected to much ofOklahoma's educational effortsbeing focused inward instead oftoward the general public-astance not justified by anything inpublished postal regulations. NeilDeininger and Tom Overbey ofOverbey, Peace, McClain andYancey put together an outstanding appeal for the Association andnow we are waiting to see whathappens. If we lose, our postalcosts will shoot up from about$9,000 to $15,000 per year.

LAWYER REFERRALSERVICE

ADVERTISEMENTOMITTED BY SW BELL

Another problem is Southwestern Bell. Our Lawyer Referral Service advertisement was left out ofthe Yellow Pages of the Little Rockphone book. That omission meanspeople looking for a lawyer in theYellow Pages are not going to discover the existance of the LawyerReferral Service at 375-4605, Thephone company was awareenough of their obligation to putthe ad in that they have billed usfor it and called complainingabout our "delinquent bill" evenafter one ollicial had acknowledged we did not have to pay. Thecontract the phone company writesfor Yellow Pages advertising absolves it of all liability foromissions-something it seems tome should be void as against public policy for a utility with amonopoly. Numerous letters tolocal phone officials have goneunanswered and I have just sent aletter to the president ofSouthwestern Bell Corporationpointing out shortcomings of hiscompany. We hope all this avoidsother omissions of our ads.

o

YOUNG LAWYERS' UPDATE

Annual Meeting to Feature Election of Officers

By Carl A. Crow, Jr., Chair

Election of Officersat Annual Meeting

The annual meeting of theYoung Lawyers' Section will beheld Thursday afternoon, June 7,1984, in conjunction with the annual meeting of the Arkansas BarAssociation at Hot Springs.

The chair-elect is elected by amajority of those present and voting at the Section's annual meeting. Nomination may be made onlyby petition, and to be eligible fornomination, a Section membermust have served as chair of a Section committee or on the Section'sExecutive Council. No nominee iseligible for election unless he orshe is present at the Section's annual meeting.

The chair-elect for 1984-85 willbe nominated from the SouthernBar District. comprising the counties of Ashley, Bradley, Calhoun,Chicot, Clark, Cleveland, Columbia, Dallas, Desha, Drew,Hempstead,_ Howard, Jefferson,Lafayette, Lincoln, Little River,Miller, Montgomery, Nevada,Ouachita, Pike, Polk, Sevier andUnion.

The secretary-treasurer iselected by a majority of those present and voting at the annualmeeting of the Section.

The Executive Council is composed of the officers of the Sectionand the last retired chair of theSection and two additional members from each bar district. electedat the annual meeting. The termsof the elected members arestaggered, so that one memberfrom each bar district will beelected at each annual meeting.

The Executive Council memberswhose terms expire in June 1984are: Philip Raley, Southern District: Kaye S. Oberlag, Central District: Morse U. Gist, Jr., NorthwestDistrict and Jesse E. (Rusty) Porter,Jr., Northeast District.

Chair-Elect AttendsBar Leadership Inslilute

Current YLS Chair-Elect Martha

Miller of Little Rock, who will assume office as YLS chair at the annual meeting, recently attendedthe American Bar AssociationYoung Lawyers' Division ChairElect Bar Leadership Institute atLake Buena Vista, Florida. Thisannual meeting provides an opportunity for incoming Chairpersons of ABA/YLD affiliates to meetand exchange views with eachother and with ABA/YLD representatives. The YLS' annual participotion in this seminar helps to assurethat we have the benefit of otherhar association experiences inplanning our own programs.Hot Springs Trial Practice Seminar

The Third Annual YLS Trial Practice Seminar at Hot Springs washeld March 23 and 24, 1984. Approximately 50 lawyers attendedthis excellent program.

Rod Loomer of Springfield, Missouri. spoke on "Approaching theSmall Personal Injury Case," andpresented useful suggestions foreffectively preparing such cases.Tom Strong, also of Springfield,Missouri. spoke on "Use of Demonstrative Evidence to ProveLiability," and presented an excellent program on the impact of demonstrative evidence at trial.

The "Young Lawyers Purse" raceat Oaklawn Park was run in conjunction with the seminar onSaturday, March 24. YLS representatives presented a silver cup tothe owner, trainer and jockey ofFast Henry, the winning horse.

The YLS program committee waschaired by Morse U. Gist, Jr., of HotSprings and co-chaired by JamesM. Simpson, Jr., of Little Rock. Theseminar was jointly sponsored byAICLE.

Admissions CeremonyThe YLS sponsored its semi

annual Admissions Ceremony fornew bar admittees on April 30,1984, following swearing-in ceremonies in the old Supreme CourtChamber of the State CapitolBuilding. Robert D. Ridgeway, Jr.,of Hot Springs chairs this committee, which is co-chaired by Sammye Taylor of Little Rock.

Law Week 1984The YLS, in cooperation with the

Association's Public InformationCommittee, prepared and distributed to local bar associations aLaw Week Planning Guide, including suggested programs andmaterials for use in planning andpresenting programs during LawWeek 1984,

Tom Ray of Little Rock, chair ofYLS committee, presided at a LawWeek Seminar on March 17, 1984,at the Bar Center, which was attended by a number of local barrepresentatives.

In addition, Ray was instrumental in securing a Governor's Proclamation designating the week ofApril 29, 1984, through May 5, 1984,as Law Week in the State of Arkansas and Tuesday, May I, 1984, asLaw Day U.S.A.. in commemoration of the 27th annual nationwideobservance of Law Day.

The Arkansas Bar Foundationearlier approved a grant of$2,700.00 to the YLS for these activities. Without this fundamentalassistance, the project could nothave been completed.

Projects UpdateThe Legal Records Keeper

Committee, chaired by MikeCrawford of Hot Springs, has prepared an application to theABA/YLD for project funding.

The Ad-Hoc Committee on JuryInstructions, chaired by James E.Crouch of Springdale, is movingforward with plans to establish astatewide center for the exchangeof jury instructions for use in civilcases not presen tly covered byAMI.

Volunteers are needed to participate in Arkansas VolunteerLawyers for the Elderly (AVLE). Injoining AVLE, a lawyer agrees toaccept a maximum of three (3) probono cases per year. Richard L.Ramsay of Pine Bluff is chairmanof the AVLE Board of Directors. Tojoin AVLE, please contact P.O. Box2038, Little Rock. Arkansas 72203. D

July 1984/Arkansas Lawyer/lSl

ARKANSAS BAR FOUNDATION

By Cyril Hollingsworth, President "EXECUTIVEOFFICE SUITES"

The 1983-84 Arkansas Bar Foundation year has been a time oftransition. The Foundation isoperating under revised By-Laws.The Trust Committee and theBoard of Directors of the Foundation are working together tostrengthen the Foundation and itsprograms.

The purpose and meaning of theFoundation perhaps is best seenon a year-to-year basis in thegrants it makes. The Trust Committee of the Foundation determines what grants shall be made.The Trust Committee considerednumerous applications and madethe following awards for the1983-84 year.

-Arkansas Bar FoundationResearch Fellowships consisting of a grant to a professor atthe Fayetteville and Little Rocklaw schools of $3,600.00 each toenable summer study and re-search $7.200.00

-Distribution of a book entitled "Equal Justice Under Law:The Supreme Court In AmericanLife" to public school librariesthroughout Arkansas .$5.000.00

-The printing or reprinting ofpamphlets: "Handbook for Arkansas Personal Representatives;" "Your Rights;" "Real Estate;" "Arkansas Supreme CourtRules on Advertising;" and,"Guidelines for Lawyer's TrustAccounts" $2.131.00

-A contribution to enable thepublication and distribution of abook by Professor Morris S. Arnold entitled "Unequal LawsUnto A Savage Race," a legalhistory of Arkansas during


1686-1836 $2.500.00

-A grant to the Committeeworking on Law Week to helppromote the observance of LawWeek throughout Arkan-sas $2,775.00

-The establishment of twostudent scholarships each at theFayetteville and Little Rock lawschools. at $1.250.00 perscholarship. with the objectiveof retaining outstanding students to attend Arkansas lawschools $5.000.00

-A grant to be used to updatethe "Arkansas Appellate Advo-cacy Handbook" $2.000.00

-A grant to the SpecialCommittee studying the ABAModel Rules of ProfessionalConduct. to assist them in disseminating information to Ar-kansas lawyers $1.500.00

The Foundation is proud of itsrole in establishing the ArkansasBar Center. a facility which servesthe lawyers of Arkansas in manyways. The Center provides a homeaway from home for Arkansaslawyers outside the Little Rockarea, and serves as a place wherereceptions and other activities pertaining to the legal profession canbe held. A Joint House Committeeof the Foundation and the Arkansas Bar Association helps to oversee the operation of the Bar Centerand its use.

The Foundation presents a realopportunity on a continuing basisfor Arkansas lawyers to make asignificant impact on their profession and the administration of justice. I appreciate the opportunityand honor which I have had inserving as president this year. 0

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Additionally, we have larger officespace available at about hall therate of comparable space in someof the new buildings.

CALL: 375-1439 or 372-1526 and wewill mail you a brochure.

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IN-HOUSE NEWSLaw Schools, AICLE and Executive Council

UNIVERSITYOFARKANSASSCHOOL OFLAW ATFAYETTEVILLE

By J. W. Looney

Gerry Spence SpeaksThe Student Trial

Lawyers Associationsponsored an appearance of trial attorneyGerry Spence in February. Spence spoke to anaudience of over 250students. faculty andlawyers at the Continuing Education Center ontrial tactics and his experiences in the nowfamous Silkwood case.

Judge Judith RogersAddresses

Chancery Judge Judith Rogers was the featured speaker duringlaw week activities. Herpresentation. "Womenin the Judiciary." wassponsored by the Women's Law StudentAssociation.

Eighth Circuit CourtOf Appeals

Hears Argumentat Law School

In March, a panel fromthe Eighth Circuit Courtof Appeals heard oralarguments at the lawschool. Judges RichardArnold. J. Smith Henley,and Theodore McMillianheard arguments inthree separate cases.

Editor-in-Chiefof Law Review

SelectedThomas Mars was

elected editor-in-chief ofthe Arkansas Law Review for 1984-85. Tomwill clerk during thesummer months forWright. Lindsey & Jennings of LillIe Rock andfor Gibson. Dunn &Crutcher of Los Angeles.He was recently designated as the 1984 recipient of a PresidentialScholarship in recognition of his academicachievements.

Client-CounselingTeams Place First

in Regional CompetitionThe UA Client Coun

seling team of MickiHarrington of Hendersonville, N.C .. and LewSteenken, of Huntsville.placed first in the regional competition inTopeka, Kansas, andwill represent the regionin the national competition.

Faculty Activities• Bob Laurence's ar

ticle, "ThurgoodMarshall's IndianLaw Opinions, " waspublished in Howard Law Journal.Professor Laurencealso has an articlein the Arkansas LawReview entitled. "AVery Short Articleon the PrecedentialValue of the Opinions from anEqually DividedCourt."

• Chauncey Brummer's article. "Occupational Disease

Litigation Under theFederal Employer'sLiability Act." waspublished in TheForum.

• Rodney Smolla &Linda Malone's article, "The Future ofDefamation in Illinois after Colson v.Steig and Chapskiv. Copley Press,lnc."was publishedin the DePaul LawReview.

• Rodney Smolla's article," Let the Author Beware: TheRejuvenation of theAmerica Law ofLibeL" was published in the Pennsylvania Law Review.

• Jake Looney's article, "The Future ofGovernment Regulation of Agriculture: Financeand Credit," waspublished in Northern IDinois Law Review.

... Don Pedersen's article, "The Migrantand Seasonal Agricultural Worker Protection Act: A Preliminary Analysis."was published inthe Arkansas LawReview.

... Lonnie Beard's article (with Palli Holfmann), "Compensating Family Members: A Survey ofMajor Tax PlanningProblems and Opportunities on theFamily Farm," alsoappears in theArkansas Law Re-

view.• Howard Brill's arti

cle. "The Election ofRemedies in Arkan50S," is in theArkansas Law Review.

• Charles Carnes hasbeen appointed as aregular contributorto the Journal ofAgricultural Taxation and Law withresponsibilities inthe area of agricultural labor.

• Linda Malone'sthesis has been accepted at Illinois forcompletion of theLL.M. degree requirements. Herbook review of TheBiller Years: ArabsUnder Israeli Occupation in 1982 appears in the MiddleEast Journal,

Robert A. Leflar, distinguished professor oflaw, participated recently in a three-dayseminar at St, Paul.Minn .. for 12 new judgesof the newly-createdMinnesota intermediateCourt of Appeals. Inconducting the Seminar,Leflar was joined bythree other judges fromCalifornia, Missouriand Tennessee whohave served with him onthe faculty of the annualAppellate Judges Seminars in New York. Topicsdiscussed in the shortMinnesota seminar included nature and function of the appellatejudicial process, preparation of judicialopinions. administra-

Iuly 1984/Arkansas Lowyer/153

tion of appellate courts,and developmen ts inmodern law in variousareas.

UNIVERSITYOFARKANSASAT LmLEROCKSCHOOL OFLAW---

By John M. Sheffey

UCLA Dean DeliversAltheimer Lecture

Susan WesterbergPrager, dean of theSchool of Law at theUniversity of California,Los Angeles, deliveredthe tenth Ben J. Altheimer Lecture at theLaw School on February24. The title of DeanPrager's address was,"The Revolution in Marital Property Law: Increasing Emphasis onMarriage as a Partnership." An expanded version of her lecture willbe published soon in theUALR Law Journal.Law School Co-Sponsors

New Program SeriesThe UALR School of

Law is a co-sponsor of anew program seriesalong with the NationalConference of Christians and Jews, Arkansas Justice Foundation,Pulaski County BarAssociation, and theUALR College of LiberalArts, with partial funding provided by the Arkansas Endowment forthe Humanities. Theprogram series, entitled"Search For Equity,consists of a number ofearly morning forums oncurrent legal issues. The

154/Arkansas LawyerlIuly 1984

initial forum was conducted on March 28 andincluded a panel discussion on the topic,"The Media Vs. the Justice System-Freedomof Speech in the Courtroom." The panel consisted of Phillip Carroll,a prominent Little Rockattorney, Judge Annabelle Clinton of the SixthJudicial Circuit andMike Masterson of theArkansas Democrat.

Law School AlumniTo Hold

Annual MeetingThe annual meeting of

the UALR Law SchoolAssociation will be heldat noon, Friday, June 8,1984 in the Wine andCheese Room of the Arlington Hotel in HotSprings. This will beduring the annual meeting of the Arkansas Bar.The Association is composed of graduates,former students, facultyand friends of the UALRSchool of Law and itspredecessors, the Arkansas Law School andthe Little Rock Divsion ofthe University of Arkansas, Fayetteville Schoolof Law. The meeting willpresent an opportunityto have lunch with oldfriends and classmatesas well as to learn aboutrecent developments atthe law school.

Annual Student AwardsThe Law School's an

nual awards banquetwas held on March 3I atthe Pleasant ValleyCountry Club. Selectedstudents were honoredat the banquet for outstanding academicachievement and service to the Law Journaland to the Law School.Although space does notpermit recitation of allthose honored, awardswere made to Neal W.Jansonius, Rufus Wolffand Nancy Wilbanks for

their superior academicachievement and toJeannette Robertson,Jerry Malone and AustinPorter for their contributions to legal scholarship. In addition, Margaret McCord and AliceLightle each receivedcash awards for havingbeen victorious in thisyear's advanced appellate advocacy competition. George Nelson, theeditor-in-chief. receivedthe John H. BrunsonAward for outstandingservice to the UALR LawJournal. Joel Taylor, aMay graduate, wasvoted by his fellow students as most likely tosucceed in the practiceof law and received theBogle-Sharp Award.

Several awards werealso given to friends ofthe law school. TheAlumni Associationgave its distinguishedservice award to Dr.James H. Fribourgh, theretiring Provost and ViceChancellor of UALR, inrecognition of his manyyears of loyal service toboth the university andthe law school. The Student Bar Associationpresented an Appreciation Award to RuthLindsey, the former librarian at the ArkansasSupreme Court. who hasunselfishly given of hertime and experience atthe school's law library.The Student Bar Association also gave its Distinguished ServiceAward to Carolyn LongofKARK-TV. The awardspresentations were preceded by an address byJudge Judith Rogers ofthe Sixth Judicial District Chancery Court.

Faculty NewsProfessor Arthur G.

Murphey, Jr., spoke at aprogram on international sale of goodssponsored by the Arkansas Institute for Con-

tinuing Legal Education. Professor Murphey's topic was ''TheContract and the UnitedNations Convention onContracts for the International Sale of Goods(The 1980 Vienna Treaty)."

Professor Glenn E.Pasvogel has given several recent presentations. On March 30, hespoke to the DebtorCreditor Bar of CentralArkansas on recentdevelopments in debtor-creditor law. On April19, he addressed the Arkansas Judicial Councilat Fairfield Bay on thesubject of recent cases ofjudicial interest. OnMay 3, at a meeting ofthe state prosecutors ofArkansas, he delivereda talk on character evidence.

Professor Susan W.Wright's article, "Damages or Compensationfor UnconstitutionalLand Use Regulations,will appear in Vol. 37 ofthe Arkansas Law Review. Professor Wrighthas been invited to participate in the Institutefor Law Professors sponsored by the Law andEconomics Center ofEmory University. Theinstitute will be held inHanover, New Hampshire, from July 1-20,1984.

Professor Fred W. Peelwill teach a course onconsolidated income taxreturns to personnel inthe national office of theInternal Revenue Service in Washington.D.C. The program issponsored by the NewYork University LawSchool and will be attended by attorneys inthe Chief Counsel's office of the IRS, the taxdivision of the UnitedStates Department ofJustice and the IRS's ruling sections.

The Law School's library was well represented at the meetingof the Southwestern Association of Law Libraries in Austin. Texas.on March 29-31. Librarians Ruth Brunson,Jada Aitchison andLinda Cross were all inattendance,

Professor Robert R,Wright chaired theAmerican Bar Association-American Association of Law Schools jointre-inspection of BaylorUniversity School of Lawin March,

Dean Lawrence H.Averill. Jr., has agreedto write a second editionof his book, The UniformProbate Code in a Nutshell.

A.I.e.L.E.NEWS

By Claibourne W. Patty, Jr.

Federal CivilPractice Seminar

The 3rd Federal CivilPractice Seminar. cosponsored with theArkansas Federal Practice Committees of theEastern and WesternDistricts of Arkansas.was held March 16 at tbeExcelsior Hotel. LittleRock. Tbe program. cochaired by Chief JudgeH. Franklin Waters,Judge William R. Overton. Professor Ellen B.Brantley and ProfessorDavid Newbern, focusedon several areas of Federal Trial and AppellatePractice.

The first portion was apanel chaired by MaryDaives Scott, of LittleRock, on bankruptcymatters affecting federal practice. The keynote presentation wasby John Harrison, spe-

cial advisor to theUnited States JusticeDepartment on bankruptcy legislation.

Also on the panelwere Bankruptcy JudgesCharles W. Baker andRobert F. Fussell. U.S.Bankruptcy Judge-designate James Mixon.Peggy Carroll. Bankruptcy Court clerk. A. L.Tenney. Chapter Xllltrustee for Wage EarnerPlans and James Hollis.U.S. bankruptcy trustee.They discussed Bankruptcy Court. its procedures and pitfalls. newrules of bankruptcy procedure and the administration of wage earnerplans and Chapter VIIand XI bankruptcies.

Professor Newberndiscussed Federal CivilProcedure-Removaland Remand in the nextsession and the finalmorning session was onEffective AppellatePractice by Donald P.Lay. chief judge. andRichard S. Arnold.judge, U.S. Court of Appeals for the Eighth Circuit.

The highlight was apanel of all federaljudges in attendance.

New ApproachHalf Day Seminars

An Introduction to anInternational Sale ofGoods was held March3. 1984. at the UniversityConference Center.State House Plaza. LittleRock. Its purpose was toacquaint lawyers on theprocedures and problems involved in exporting goods.

6th Annual LaborLaw Institute

The 1984 Labor LawInstitute. jointly sponsored with the LaborLaw Section of the Arkansas Bar Association.the National Labor Relations Board. the Industrial Research and Extension Center of UALR,

and the American Arbitration Association. washeld March 23-24. 1984.at the DeGray Lodge,Arkadelphia.

The program concentrated on topicsincluding arbitration;labor and employmentrelations developmentsat the Eighth CircuitCourt of Appeals; Discrimination Law; Davis-Bacon Act on whetherminimum wages arenecessary in the construction industry; Quality of Work Life/Pro andCon; safety and health;Unemployment Compensation with an emphasis on issues underthe Arkansas Employment Securities Law andthe Appellate Process;employer responsibility;affirmative action afterW. R. Grace; developmen ts regarding Protected ConcertedActivity with referenceto NLRB pronouncements on SectionVIII(aXI) violations; sexual harassment underTitle VII and the rights ofemployees who claimsexual harassment onthe job; employment atwill and the TeacherFair Dismissal Law inArkansas.Tax Awareness Institute

The 6th Annual TaxAwareness Institute.jointly sponsored withthe Taxation Section ofthe Association. washeld at the ExcelsiorHotel. Little Rock. onApril 27. 1984. Thisyear's program, cochaired by H. LawrenceYancey. of Little Rock,and Joseph Hickey. of ElDorado. focused on theArkansas State Tax Procedures Act. the Department of Finance andAdministration andexisting regulations, thedifference between Arkansas income taxationand U.S. income taxa-

tion, Sales and UseTaxes. miscellaneoustaxes and an update ofthe Federal Income Tax.

Federal CourtOrientation ProgramThe Federal Court

Orientation Program,jointly sponsored withthe Arkansas Association of Women lawyers. returned this yearto the Federal Courthouse. Little Rock. onMay 7. 1984.

Its co-chairs wereCarolyn B. Witherspoonand Jacqueline S.Wright.

Topics presentedwere the U.S. DistrictCourt and U.S. Bankruptcy Courts duties andfiling procedure. U.S.Court of Appeals-EighthCircuit practice; practice and procedure of theFederal District Court,and pitfalls to avoid in aFederal district court.

The highlight of theafternoon proceedingswas a swearing-inceremony.

Topics were directedto newly admitted attorneys with up to fiveyears experience andwho deal with the basicfundamentals of federalcourt practice.Security Short CourseThe Securities Law

Committee of the Association will offer halfday security shortcourses from May 17-24in Little Rock. Jonesboro. Fayetteville. Texarkana and Pine Bluff.

Topics will includescope in general of Securities Law; registration and exemptionsunder Federal and Statelaw and anti-fraud andliability with an emphasis on disclosure.due diligence and malpractice under antifraud, and remedies,limitations, aider andthe abettor, control persons and protection

July 19B4/Arkansas Lawyer/ISS

available.

EXECUTIVECOUNCILREPORTBy Annabelle Clinton

March 31. 1984A meeting of the Exe

cutive Council of theArkansas Bar Association was held at the RedApple Inn, Eden Isle, onMarch 31, 1984, Chairman James H. McKenziecalled the meeting toorder at 9:00 a.m. andpresided throughout.Others present wereDennis L. Shackleford,president; AnnabelleClinton, secretarytreasurer; Norwood Phillips, Robert M. Cearley,Thomas L. Overbey,Marcia McIvor, Joe B.Reed, Julian B. Fogleman, Kaye S. Oberlag,and Gary Nutter, members of the Council; William R. Wilson, Jr ..president-elect; CyrilHollingsworth, presIdent of the ArkansasBar Foundation; RobertL. Jones, Ill, ArkansasBar Foundation; Colonel William A. Martin,executive director; ClayPatty, AICLE; Charles L.Carpenter, Jack McNulty, Jim Rhodes andMac Glover.

The Council approvedthe minutes of theJanuary 21. 1984, Houseof Delegates meeting,the Association's financial statement of February 29, 1984, and themembership reportdated March, 1984.

President Shacklefordreported that David Malone, Dean Jake Looneyand Herman Hamiltonhave been appointed tothe Arkansas Law Review Board.

President Shackleford

IS6/Arkansas Lawyernuly 1984

reported that the Association will host a reception for the judges at theJudicial Council meeting on April 19, 1984.President Shacklefordwill also make a presentation to the JudicialCouncil on April 21.1984, concerning theJudicial Poll and the implementation of TrialPractice Committees.

Robert M. Cearley, Jr.,submitted the AnnualMeeting Site Report. TheCouncil passed a motion to present to theHouse of Delegates at itsnext meeting the issueof whether we shouldchange the site of theannual mid-wintermeeting. The presentation will be made by Mr.Cearley without recommendation of theCouncil.

William R. Wilson, Jr.presented the Association's proposed budgetfor 1984/85. The Counciladopted the proposedbudget. The followingcomments were madeconcerning the budget:The postage line-itemhas been increased dueto the possible loss ofthe Association's notfor-profit postage permit. The Arkansas Lawyer line-item has beendecreased because nodirectory will be published in 1984/85. TheLegislation line-itemhas been increased because 1984/85 will include a legislative session. No funds will beincluded lor Long RangePlanning Conferencesduring legislative session years. Finally, thepresident has beengiven a DiscretionaryFund in the amount 01$5,000.00.

The Council adopteda new Leave Policy lorAssociation employees,which is as follows:

10 days per year foremployees with I

year service.12 days per year for

employees with 1-5years.

18 days per year foremployees with 10-15years.

20 days per year loremployees with 15-20years.

22 1/2 days per yearfor employees with 20years or more.William R. Wilson, Jr.,

president-elect, announced the appointment of Mac Glover tochair the ExecutiveCouncil for 1984/85.

Jack McNulty, chair ofthe Jurisprudence andLaw Reform Committee,presented his committee's report on proposedlegislation submitted tothe Committee on or belore February 10, 1984.The Executive Council,after considering theCommittee's report,made no recommendation, deferring such action until the next meeting of the Council inMay, 1984, with the exception that under thesection headed "Do NotRecommend," Item No.6, should be amended torefer the proposed legislation to the Family LawSection for report to theCouncil in May, 1984.Also, under the sectionheaded, "Not Considered," Item No.2, theCouncil acknowledgedthat this proposed legislation will require special handling. Finally,the Executive Councildirected Jack McNulty toadvise the substantivecommittees concerningthe action taken by theJurisprudence and LawReform Committee onthe Association's proposed legislative package.

In other business, theCouncil concluded that,with respect to the unjust criticism 01 judges,

the Association mustreact through its legislative body, the House ofDelegates.

Executive DirectorColonel William A. Martin was authorized tospend up to Three Hundred Dollars ($300.00) ona badge-making machine.

The Council adjourned into executivesession to discuss thelegislative lobbyist selection process. At theconclusion of the executive session, the Counciladopted a written jobdescription for the legislative lobbyist. TheCouncil also adoptedthe procedure that itwould employ the legislative lobbyist lor theAssociation based uponapplications to be considered at the immediately followingExecutive Council meeting in May.

The Council authorized Colonel William A. Martin to sendthe following telegramto Senators Pryor andBumpers on April 2,1984:

"The Executive Council of the ArkansasBar Association urgesyou to vote in lavor ofthe McClure Amendment to the FTC Bill."

Dean Jake Looney in-vited the ExecutiveCouncil to hold its nextmeeting on April 28,1984, in Fayetteville, Arkansas, at which timethe Honorable WarrenBurger, Chief Justice ofthe United States Supreme Court, will bespeaking to the University of Arkansas School01 Law in Fayetteville.

The meeting was adjourned at 12:15 p.m.Annabelle ClintonSecretary-Treasurer 0

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Call 1·800-FOR-LOAN

MISSING

AND UNKNOWN HEIRS LOCATED

NO EXPENSE TO THE ESTATE

WORLD-WIDE SERVICE fOR

COURTS - LAWYERS - TRUST OFFICERSADMINISTRATORS - EXECUTORS

AMERICAN ARCHIVES ASSOCIATIONINTE:RNATIONAL PROBATE: RE:SE:ARCH

449 WASHINGTON BUILDINGWASHINGTON. D.C.

SERVICE DIRECTORY

LEGAL BRIEF PRINTINGPARAGON Printing & Stationery Companyhas been printing BRIEFS for over 35 years.

May we be of service to you?

311 East Capitol 375-1281Little Rock

•BEACH ABSTRACT & GUARANTY COMPANY

REPRESENTING:nCOR TITLE INS. CO.

ABSTRACTS-ESCROWS-TITLE INSURANCE100 Center 51. - Little Rock. AR 376-3301

Expiration date

• Handy acetatepockets to safely storecompleted time andexpense slips and tohold business cards.

• Actual time andexpense slips are7 1/16" x 2 13/16".

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SPECIAL DISCOUNTSORDER TODAYBUY IN VOWME AND SAVE.Order five to nine systems and payonly $39.10 each. Order ten or moresystems and pay only $37.80 each.SOLD ITAMPINSYour name gold stamped on theportfolio cover for only $1.00 extra,a $4.75 value. Ifmore than onecover is to be personalized, supplyadditional names.

Black Beauty'" Corporate Outfit

Card number

SignatureD Check enclosed, we pay freightFor delivery in Texas, add sales tax.ShIp to: _

The complete system includes: pegboard portfolio with aluminum writingsurface; 500 time and expense slips withjournal sheets; 20 client file summarysheets; 50 file jackets for storing timelexpense slips and small receipts; andinstruction guide. Cat. No. 5027,$42.00 complete.

Refills for the system are also availableincluding time and expense slips withjournal sheets, Cat No. 5025:500-$25.80; 1000-$49.50.

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.,

Toll free line 1-800-433-1700

~celsior-Le9QI,Inc:PO Box 5683, Arlington, Texas 76011 • (817) 461-5993

(Use separate sheet for additional names, $1.00 ea.)

Renn., Time and Expense Slip. withJoumol Sheet., Cat. No. 5025. Zip, _D 500-$25.80 D 1000-$49.50 D Send free catalog. AR ,L ~

Your nationwide source for corporate. outfits and law products.Plants and offices: New York, Georgia, Illinois and Texas.

r----------------------------------------------------------------------------,Complete Attorney Time & Expense Cbsl'le:Control System, Cat No. 5027. D 1-4, D Amex D MC D Visa D Diner's Club$42.00 ea. D 5-9, $39.10 ea. D 10 ormore, $37.80 ea. Quantity ordered _D One name gold stamped on portfoliocover, $1.00 additional. Print name:

FREE CATALOG

Attorney Time and ExpenseControl SystemCat. No. 5027

• Color coded time andexpense slips with journalsheets in place. These slipsguide the user and preventcoding errors. Brown area fortime charges; green area fordisbursements. Slips may beused for computer input'

• Alwninwn writing surfacefor sharp impressions.

• Attractive, leather-likepegboard portfolio.

Excelsior-Legal's Attorney Time andExpense Control System costs only$42.00 yet its unique color coded chargeslips can increase your billable income16% to 40%. These slips provide accurate records of billable time charges anddisbursements as they occur, not afterthe fact when potential billings might beoverlooked or forgotteIL Also, your cashflow is improved by using the system'sclient file summary sheets of billablework in progress.

Our latest full color catalogdescribes all OUf law officesystems, corporate outfits andmany other law products.Check box on order form.

A money making system from the companythat makes Black Beauty® corporate outfits.

NOW, MAXIMIZE YOUR BILLINGSAND CASH FLOWWITH A MINIMUM INVESTMENT.