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By their words ye shall know them 

A revealing look into the workings of the Arkansas Supreme Court

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Everybody's entitled to an opinion. But members of the Arkansas Supreme Court are more entitled than most.

Put another way: their professional opinions affect us more than just about anyone else's. As the final arbitrator of legal issues in the state, the high court's seven members wield unparalleled influence. They sit atop the third branch of government, interpreting the law and often making it through the power of their opinions.

Those opinions shape and refine the laws enacted by the legislature. But, while the legislature is followed closely by the media while it's in session, the high court works quietly year in and year out, almost entirely outside media notice.

Each year, the Arkansas Supreme Court rules on more than 200 cases that establish precedent and thereby make law. And any of their rulings may, at one time or another, affect you.

Workers' rights? Real estate? Medical insurance? Divorce? Child custody? Wills? Banking? Contracts? When police can — and cannot — search your house? Questions touching on all these and more are routinely ruled on by the court.

Yet only a fraction of its decisions ever get reported by the mainstream media. And, unlike other elected officials, the black-robed justices of the Supreme Court labor in relative anonymity. We elect them. But we make it hard to know them.

When they campaign, they don't discuss philosophy or their opinions on the law, lest they appear to have prejudged anything. They no longer even campaign by party.

Once on the bench, they're equally constrained — at least, so far as the public goes. You'd be more likely to elicit an off-the-cuff opinion on any aspect of the law from any man or woman on the street than from any justice of the state Supreme Court.

Finally, when their rulings are reported, it's the collective decision that makes headlines — if the decision's reported at all. The positions of individual justices often are not even noted.

Lawyers, of course, follow the court. But, knowing that any case may eventually arrive there, few are so confident — or rash — as to express their opinions of the justices in public.

So how can voters get to know these powerful, but obscure, officials?

Judges traditionally run on their records. But how many of us could say anything meaningful about the "record" of even one of this state's justices?

Until recently, voters for the court have been handicapped. But now that situation may be reversed. That's because what the media have not been providing voters can now get for themselves.

True, the justices don't expound in sound bites. And they don't welcome cameras where they work. But, more than anyone else in government, they do give us their opinions. And, to an extent unmatched in politics, that makes them knowable.

On hundreds of issues each year, the justices of the Arkansas Supreme Court (and Court of Appeals) spell out where they stand. Now that their opinions are available on-line, the court and its members can be judged more personally and more directly than was easily done before.

Court-watching can now assume its proper place as one of the great Arkansas political pastimes. And the new Supreme Court term has just begun.

If you want a chance to peer more deeply than ever before into the legal life of this state... If you're curious about the characters of the justices on the bench... If you'd like to see how justices agree and disagree... Or to watch life-and-death dramas unfold... Go to: http://courts.state.ar.us/opinions/opmain.htm.. And revisit the site once a week.

The following glimpses from last term will help you get acquainted. Some of the observations are subjective, but that's the point. For better or worse, we are all entitled to our opinions...

Here's what one reader thinks. See where you dissent.

The court as a whole

The Supreme Court is conservative. It views its role narrowly. It avoids bold decisions. It supports the status quo. About a third of the cases that reach the high court deal with criminal matters; the rest are civil cases. Last year, the Supreme Court affirmed approximately 70 percent of the rulings it reviewed.

Case in point #1: Huffman v. Fisher

In 1996, 16-year-old Kara Kathleen Huffman, who was unmarried, gave birth to a boy whom she named Jacob Auston Huffman. She and her parents raised the child in their home. The child's father, a teenager named Nick Fisher, acknowledged paternity and, shortly after the birth, petitioned the chancery court in Cross County to have Jacob's surname changed to his own.

The case was argued for more than four years. Finally, a chancellor, noting that Jacob had two loving and involved parents, ruled that it was the "norm in this locale" for children to have the surname of their fathers and ordered the child's name changed. He did so, he wrote, to protect the boy from any "stigma" he might later suffer by bearing his mother's last name. With the child now four-and-a-half years old, the mother appealed to the state's high court.

The Supreme Court unanimously affirmed the chancellor's ruling. All seven members agreed that the chancellor was correct in finding that the child might "suffer harassment or embarrassment if his name is not changed." They agreed with the chancellor that a name change at this age would not harm the boy. And they supported the chancellor's decision to attribute no weight to the fact that, prior to the child's birth, Fisher had urged Huffman to have an abortion.

Case in point #2: B.C. v. State

A 15-year-old boy was charged with disorderly conduct at school, in part for claiming that he was god and that if he killed a policeman, he could bring him back to life. In court, the boy's lawyer presented evidence that psychiatrists had found the boy to be mentally ill and under the influence of "delusional religious beliefs." The lawyer argued that the boy should be found not guilty by reason of mental disease or defect.

But the court ruled that Arkansas law does not allow juveniles to plead mental disease or defect. It adjudicated the boy a delinquent and sentenced him to indefinite probation.

On appeal, the boy's lawyer argued that the ruling violated the equal protection clause of the U.S. and Arkansas constitutions. There was "no rational basis for affording the insanity defense to adult criminal defendants," the lawyer maintained, "while not providing the same defense to juvenile defendants."

Again, in a unanimous decision, the Supreme Court affirmed the lower court's ruling. "Although we have the power to overrule previous decisions," the justices wrote, "we will uphold them unless great injury or injustice would result..." Seeing no "great injury or injustice" in barring juveniles from employing a defense that's available to adults, they saw no need to act.

Chief Justice W.H. "Dub" Arnold

If the Supreme Court were a corporation, Arnold would be known as a "company man." His opinions tend to be cautious and to support the establishment, be that political, judicial or corporate.

Case in point #1: Wal-Mart Stores Inc. v. Londagin

A wheel came off a couple's car after Wal-Mart rotated the tires, resulting in a collision and injuries. They sued for negligence. Wal-Mart attempted to settle but the couple rejected the offer. When the lawsuit went to trial, lawyers for Wal-Mart argued that the jury should not be informed of the earlier offer to settle. The judge disagreed, the information was introduced, and a jury awarded the couple $135,000. Wal-Mart appealed.

The Supreme Court affirmed the jury's decision, but Arnold dissented. He objected to the trial court's decision to let the jury know that a settlement had been offered. Arnold wrote that since "it is not entirely clear whether conduct on the part of a defendant is a true offer of compromise or simply an admission of liability...the only safe position for the court to take" is to exclude the evidence.

Case in point #2: Neal v. Matthews

Attorney Charles Matthews pleaded guilty to two counts of bribing a federal official. He was fined and sentenced to prison. The Supreme Court's Committee on Professional Conduct then began disbarment proceedings against him.

Matthews appealed to circuit court, where a judge, ruling that disbarment was too severe, reduced Matthews' professional punishment to a 14-month suspension of his license. The Committee on Professional Conduct appealed that ruling to the Supreme Court.

The high court split on what should happen to Matthews. The majority ruled that, while a 14- month suspension was too light, disbarment was too heavy a punishment. Justice Donald L. Corbin wrote on behalf of the majority that a five-year suspension would "serve both the purpose of punishing Mr. Matthews and deterring other attorneys from engaging in similar conduct."

Arnold, who rarely dissents, and Justice Lavenski R. Smith, who has since left the court, dissented. They argued that disbarment was an appropriate punishment for a lawyer who'd engaged in bribery and that the majority had now set "a standard" of five-year suspensions for equivalent crimes.

Justice Robert L. Brown

Brown is impartial and dispassionate. At best, this translates into a steady judicial temperament and an eye trained to important details. The downside is that he can seem rule-bound and mechanical, a trait that Justice Annabelle Clinton Imber shares. Brown can be hard to predict, but his opinions make his reasoning clear.

Case in point #1:Loewer v. Cla-Cliff Nursing and Rehabilitation Center

A 90-year-old patient in the nursing home suffered from dementia. She had a history of being injured in falls. In the months that preceded her death, both of her legs had been broken, apparently in falls from her bed. Her family sued the nursing home for negligence, but the trial court granted a summary judgment in favor of the nursing home. The family then appealed.

The Supreme Court reversed the trial court's summary ruling in favor of the nursing home and remanded the case for a rehearing. Justices Brown and Imber concurred with that decision. But ever on the lookout for nits, they took pains to point out that, while the woman's doctor had ordered her restrained while in her wheelchair, they'd noticed "no order from [the doctor] that [the patient] be restrained in bed."

Case in point #2: Ray v. State

A 16-year-old who was being questioned by police repeatedly asked to see his father. The requests were denied. He was subsequently convicted of capital murder and sentenced to life without parole. On appeal, his lawyers argued that, since the boy was a minor, he had a right to have his parents present while he was being questioned by police.

By a slim majority, the court affirmed the conviction. It reasoned that, even though the boy was a minor, since he was going to be charged as an adult, he had no right to speak to his parents.

Brown, Corbin and Imber vigorously dissented. Brown stated plainly that, as a minor, Ray had a statutory right to speak to his father "and that statutory right was denied him."

Moreover, he and the other dissenters pointed to a recent, similar case, in which the justices had seemed to support precisely what Ray had done. In that case, Conner v. State, another juvenile was questioned by police — only in this instance, it was the boy's parent who'd asked to be with his son. The police refused. The boy confessed. He was convicted and he appealed.

In the Conner case, the Supreme Court ruled that only the boy had the right to request contact with a parent; that the right at issue resided with him and not the parent. Since the boy who was being questioned had not invoked that right, the court ruled in the Conner case that it had not been denied.

In the Ray case, the boy — and not the parent-attempted to exercise that right. And yet the majority on the court still found against him. Brown, Corbin and Imber argued that the court couldn't have it both ways.

But with Justices Ray Thornton, Arnold, Tom Glaze and Jim Hannah forming a majority on the other side, precedent was established: In Arkansas, juveniles whom police intend to charge as adults simply have no right to see a parent while they're being questioned.

Justice Donald L. Corbin

The most plainspoken, frank and independent of the justices, Corbin also seems to be the most comfortable with common sense. Not surprisingly, he's a frequent dissenter.

Case in point #1: Thiel v. Priest

The League of Women Voters challenged the ballot title for an amendment to the state's constitution that was proposed by the legislature. The title for proposed Amendment 2 suggested that it would provide tax relief, but the League argued that, in fact, the amendment would increase sales and use taxes. The organization wanted the secretary of state to make the title more clear on this point.

The trial court ruled that the ballot title was sufficient and not misleading, and the Supreme Court affirmed that ruling. Corbin dissented.

In startlingly blunt language, he wrote, "In my opinion, the legislature has engaged in trickery and deceit by failing to inform the voters that, upon passage of this proposed amendment, a legislative enactment will take effect that raises the Arkansas sales and use tax by one-half percent." (The amendment passed.)

Case in point #2: Ghegan & Ghegan Inc. v. Barclay

All retailers who sell soft drinks are taxed. But the tax rates differ, depending on whether they make their soft drinks from syrups, or make them from powders, or buy them in liquid form.

This case was brought by the owners of a small pizza parlor in Hot Springs that sold soft drinks made from syrup, which were taxed at the highest rate. The owners paid the taxes under protest, then sued the state Department of Finance and Administration, charging illegal exaction. They argued that the disparate tax structure violated the equal protection clause of the U.S. constitution.

A chancellor dismissed the lawsuit, ruling that people were not treated differently under the tax system in question — only products were. And when the owners of the pizza parlor appealed, a six-member majority on the Supreme Court affirmed the chancellor's ruling.

Corbin voiced the only dissent. In typically straightforward language, he objected to the contention that products — not people — were being treated differently. He wrote that the current system treats "similarly situated retailers disparately with no rational basis." He noted that he could see "no rational basis for taxing retailers differently based upon whether the soft drinks they sell are made with power or syrup." And he argued that, "The case undoubtedly presents an issue of equal protection." Corbin concluded, "The state should only be interested in taxing the ultimate product. Only then could the tax be fairly imposed."

Justice Tom Glaze

Glaze's opinions portray him as the curmudgeon on the court. He's unpredictable and willing to break from the pack, but his opinions are often misanthropic, confusing and hard to read.

Case in point #1: Huffman v. Arkansas Judicial Discipline and Disability Commission

Benton County Circuit Judge Donald Huffman and his wife owned 12,000 shares of Wal-Mart stock. But when a case involving Wal-Mart came before his court, instead of stepping aside to let another judge handle it. Huffman officiated.

When the Arkansas Times reported on Huffman's decision, the judicial commission investigated. It found that Huffman had violated certain canons of the judicial code and the judge was admonished. The judge asked the Supreme Court to review the decision, but the high court refused.

Glaze concurred in that decision, but he complained that the canons that controlled judges' financial interests in cases were "confusing." And he offered the remarkable observation that this was "the first time" the court had held "that a judge in Judge Huffman's circumstances should disclose on the record his or her financial interest" in parties whose cases they're asked to hear.

Case in point #2: snapshot #7: Echols v. State

In 1997, the state legislature passed the Arkansas Effective Death Penalty Act, requiring that trial courts perform one last, very careful review of cases where the convicted face execution. These reviews became known as "Rule 37" hearings.

In this case, the defendant raised numerous points in his Rule 37 petition, which the trial judge was required to address. However, when the judge issued his response, attorneys for the defendant appealed to the Supreme Court. They argued that the judge had failed to address many of the points they had raised.

Six of the seven justices agreed. They found that the trial judge had failed to comply with the "spirit and intention" of Rule 37, which required that he carefully address each factual and legal issue raised by the petition. The high court sent the petition back to the trial court judge, ordering him to provide "written findings of fact" and "written conclusions of law" on each issue the defendant raised.

An impatient Justice Glaze dissented. He complained that if this level of care was required in all death cases, "more delays can be expected." He wrote, "Echols has been afforded counsel, a fair hearing, and an opportunity to raise any issue he chose, including constitutional ones. In short, he has been afforded constitutional due process... Because I think the record is fully and sufficiently developed to reach the merits of this case, I would decide this case without further delay."

Justice Jim Hannah

It's too early to tell about Hannah. He's the court's newest member, having joined earlier this year to replace the blatantly conservative and religious Justice Lavenski Smith. So far, Hannah seems to favor neither business nor the state, but, with only a half-year on the court, he's still largely an unknown.

A couple of indications of how he votes can be seen in Ray v. State (see section on Justice Brown) and Chamberlain v. State Farm (see Justice Thornton, below).

Justice Annabelle Clinton Imber

Her best quality overlaps with her worst. Imber is detailed, attentive and, hard-working, leading to sound results as shown by her dissent in the Ray case above, and the Lacy case below. Other times her strict adherence to the letter of the law leads to absurd conclusions. Her opinions are long and technical.

Case in point #1: Freeman V. Con-Agra Frozen Foods

A worker who was denied benefits for a job-related injury appealed his case to the Supreme Court. Upon reviewing it, the majority said they could see no reason for the Workers Compensation Commission to have denied the benefits. They reversed the commission's ruling and ordered that the benefits be paid.

Imber dissented. While agreeing that she could not fathom the commission's decision, she nonetheless would have let it stand. "While I am at a loss to understand why the [worker's] alleged failure to report a single incident to [the doctor] should be a reason for discounting [the doctor's] opinion...," she wrote, "the fact remains that appellate courts defer to the commission on issues involving the weight of the evidence and the credibility of witnesses."

Case in point #2: Lacy v. State

A 31-year-old man, who was being questioned by police, said repeatedly that he wanted an attorney. He named a specific lawyer. When police ignored his requests, he asked for a public defender. Still, no attorney was called, and the questioning continued. After eight hours of interrogation, police allowed the man to speak to his mother. Joining with the police, she convinced her son to confess. He was convicted of first-degree murder and sentenced to life in prison.

On appeal, the defendant argued that his confession had been illegally obtained, since the police had ignored his numerous requests for a lawyer. But a five-member majority on the Supreme Court found no fault with the officer's behavior. They concluded that, while it was clear that the defendant had invoked his right to counsel several times, he had willingly confessed after speaking with his mother.

Imber and Thornton dissented. They contended that the majority had "simply glossed over" the point in the interrogation where the police had resumed their questioning after the man requested a lawyer. Imber wrote, "That was the point at which a constitutional infirmity arose." Citing case law, she added, "The suspect's right to counsel cannot be adequately protected where the suspect is subject to 'persistent attempts by officials to persuade him to waive his rights,' as [the defendant] was in this case."

Justice Ray Thornton

While Thornton often appears most comfortable with "the establishment" view, he has also demonstrated flexibility and a willingness to change. His opinions, which are thoughtful and considered, have matured since he joined the court. (Note that he joined Imber in dissent on the Lacy case, above.)

Case in point: Chamberlin v. State Farm

The plaintiffs were injured in an automobile collision. They sued the other driver and won, but the damages they were awarded did not cover their expenses from the collision. They then turned to their own insurance company, State Farm, with whom they had three policies on three vehicles. Each policy included coverage of underinsured motorists, but each policy also contained an "anti-stacking" clause. Citing that clause, State Farm refused to pay on any policy other than the one covering the vehicle in the collision. The Chamberlins sued State Farm and the trial court granted State Farm a summary judgment. The Chamberlins appealed, but the Supreme Court affirmed the trial court's ruling.

Thornton, along with Corbin and Hannah, dissented. Thornton wrote: "The overwhelming majority of states now embrace the notion that an insured should be entitled to collect on multiple uninsured motorist policies in order to fully compensate or indemnify the insured." He added that anti-stacking clauses "deny Arkansas policyholders their reasonable expectations of full compensation."

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