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APRIL 1975 YOLo 9, NO.2
~e THE OFFICIAL PUBLICATION OF THE ARKANSAS BAR ASSOCIATION
Arkansas Lawyer SPECIAL FEATURES
OFFICERS James B. Sharp. President Robert C. Compton, Vice-President James M. Moody. Secretary-Treasurer
EXECUTIVE COUNCIL Douglas O. Smith. Jr. Robert Hays Williams Thomas F. Butt Julian B. Fogleman David Solomon Wayne Boyce Herman Hamilton, Jr. John A. Davis. III LeRoy Autrey Winslow Drummond Leonard Scott Boyce Love
Ex-Officio James B. Sharp Robert C. Compton James M. Moody James E. West R. Keith Arman Guy Amsler, Jr.
Arkansas Domestic Relations Manual Construction Mortgages in Arkansas---Ouestions and Partial Answers Donis B. Hamilton Law Day Chairmen Interstate Land Sales ActCoverage and Exemptions George J. Strange 77th Annual Meeting Lawyers on the Governor's Staff: Are they Needed? Robert L. Brown Fall Legal Institute The Bicycle Rider Arkansas Justice: The First Two Hundred Years
44 48 54 55 60 62 67 68 76
REGULAR FEATURES President's Report James B. Sharp 42 Juris Dictum 0000 .• Co R. Huie 77 Legal Economics 000 .•••••.•.. Richard Ao Williams 79 Law School News 00 . 00000. 0. 00. 00 J. Steven Clark 59 Oyez-Oyez 00 00000 .... 0..•••...... 0. 0Bo Tarkington 46 In Memoriam 00000 0000 0.....•...... 000. 0000072 Executive Council Notes 00. 0o.. 0 James M. Moody 47 Service Directory 0. o.. 000000000000000000 .•. 80 Aegis ... 00000000. 00.•. 0•.•..•..•. 00o' 000o. 0000000070 Recent Literature 000 0• 00• 0000' .••....•. 0• 000.• 0000074 Speakers Bureau. 00o' 0" 000o' o 0" 0000.59
EDITOR C. E. Ransick EDITORIAL COMMITTEE DonIs B. Hamilton Samuel C. Highsmith Robert T. Dawson
Published bi-monthly by the Arkansas Bar Association, 400 West Markham. little Rock. Arkansas 72201. second class postage paid at Little Rock, Arkansas. Subscription price to non-members of the Arkansas Bar Association $6.00 per year and to members $3.00 per year included in annual dues. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association, The Arkansas Lawyer, or the Editorial Committee. Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to the Arkansas Bar Center, 400 West Markham, Uttle Rock, Arkansas 72201. All inquiries regarding advertising should be sent to The Arkansas Lawyer, above address.
April 1975!Arkansas Lawyer!41
PIISIIIIT~S
IErOlT by James B. Sharp
The Arkansas Bar Association is now and long has been devoted to the improvement of the legal profession through the improvement of the pre-legal and legal education of those who apply for admission to the Bar. The Arkansas Bar Association is vitally and actively interested in ways and means of bringing about the improvement of the legal profession. If the active and conscious pursuit of these goals cause the Bar Association to be guilty of, "trying to run the law school," then so be it, for these are the very same goals that the American Bar Association has.' They are worthy of our time and efforts and such absurd charges should in no way slacken our active pursuit of these goais. To disabuse some misguided souls of the notion that only full time law school faculty members, administrative officials of colleges and universities, or even governing bodies of such institutions have some sort of secret monopoly on how to educate persons to become first rate lawyers, such mistaken persons have only to observe the education of lawyers in England, the land of Anglo-Saxon jurisprudence. Neither the University of London, Cambridge University, nor Oxford University has ever educated a single student to be a lawyer. Without any noticeable degeneration toward the status of a mere technician, the lawyers of England, for more than five hundred years, have been educated as lawyers, only through the Inns of Court. All of these Inns of Court are located in the neighborhood of the London Courts, and all are located in the very center of that great city. Not a single-barrister, in all of that time, has ever been educated to be a trial lawyer by a university faculty member, by a university administrative officer, not by anyone else, other than the practicing lawyers through their own Inns of Court. While these great universities have regularly graduated candidates with degrees in jurisprudence, not a single lawyer has been educated in England in the cloistered confines of some remotely located campus in the rural countryside - nor even at an already, over crowded location at a suburban shopping center. 42/April 1975/Arkansas Lawyer
Act 19 of Acts of the General Assembly for 1975 granted a complete divorce to the Law School in Little Rock from the Law School in Fayetteville. After a struggle over a period of nearly ten years, we are not only to have a full time law school established in a completely urban setting, but we now have the opportunity to begin a different type of role for this law school at this different type of setting. This is a unique opportunity and it is no time for us to be governed by wounded pride. In my opinion, the three great challenges to the Law School in Little Rock are; 1. To prepare law students to be practicing lawyers, not fitting them to fill non-existent openings in large metropolitan law firms and not to fill some other role, for which the old fashion law schools can well qualify them. 2. To substantially improve the delivery of legal services to that 70% of our population whose needs for legal services are not now being met. 3. To improve the legal profession through chailenging new ideas; through the continuing legal education of members of the bench and the bar; through the education of legal support personnel; and through the infusion of the highest sense of duty and morality in all persons educated in any manner by this school. Pertinent to these issues are the remarks found in the official student newspaper of the University of Arkansas in Little Rock, the Forum, in an editorial published on January 23, 1975: "It is our opinion that the downtown site would be much better for the day law school than moving the faculty and facilities to the UALR campus. There are several reasons. "The first is the very location of the present night school. This gives the day facility something to build on. There is already at their disposal the library of the Arkansas Bar Association and a brand new Bar As(1) Approval of Law Schools, American Bar Association, Standards and Rules of Procedure, p. V and 1.
Governor David Pryor is shown signing on February 3, 1975, Act 19 establishing the "School of Law, University of Arkansas at Uttle Rock" to offer daytime and evening classes, effective July 1, 1975. Standing on the immediate left of the picture are Representative Cai Ledbetter, Jr. and Senator Max Howell. Immediately behind Governor Pryor is Association Past President Henry Woods. To his right in the picture are James R. Rhodes, ill, Association President James B. Sharp, Representative William F. Foster, Sr. and Chairman J. Gaston Williamson of the Association's Law School Committee. Howell and Foster were the Act Sponsors.
sociation building. Also, they are in the center of the Arkansas legal community. Many law offices are within easy access of the building as well as the court rooms of the Pulaski County Courthouse, the Federal Building, and the U.S. Post Office, all downtown. "Another reason is expense. It would be considerably more expensive to move the school than to build on to what is already downtown. Bishop said that if a school is built on the UALR campus it would require a legislative appropriation of $900,000.00 in operation and planning money and another $715,000.00 for the planning and building of the UALR campus. "Presently, the UALR campus is overflowing with construction projects. There is the new Science Building, the New Library, and in the near future, the New Fine Arts Building. "Also, there is the dire need for more parking space for UALR's increased enrollment and more classroom space. Any new or additional construction would limit land-use planning for UALR's constantly increasing enrollment. We have more students now than space to educate them and if trends continue, it will get worse in five to ten years. "We feel it is much more convenient to use what is already being utilized by the night law school rather than travel out to west Little Rock and completely build on a new site. "The move to the complete building would not occur until 1979. Four years away. The undergraduate enrollment at UALR would probably be double of what it is now. "Any new construction which would not be used by the undergraduate students of UALR would not be to
our advantage. "So, we call on the University Board of Trustees to withdraw the bill which would establish a day law school on the UALR campus. Instead, they should support Rep. Foster's legislation creating a day law school, but using buildings already used by the night division. If new buildings are to be built, then downtown is the place to build them. It is our feeling that the students of this school do not need or want something a majority of them would not use until after they graduate." Let those who oppose the full-time law school in downtown Little Rock now spend their time, money and energy in upgrading the Law School in Fayetteville, rather than in sabotaging, impeding or even discrediting the Law School in Little Rock. In my opinion, both schools will need all of the help they can get. The needs of Legal Education in Arkansas will not be met by little men, little minds, small ideas, jealousy, recrimination, or vengeance. The citizens of Arkansas have spoken through their duly elected legislators and governor. Let those with ears hear' Now is the time for us to bind up our wounds! We need all of the expertise of the faculty, University administration, University governing bodies, law students and the lawyers to make the most out of our two different types of law schools. I feel sure that the vast reservoir of good will in the great majority of Arkansas lawyers, in whatever role they may serve, will enable us to move forward to take advantage of all of the best ideas for legal education, both in Fayetteville and in Little Rock. J- .... April 1975/Arkansas Lawyer/43
ARKANSAS DOMESTIC RELATIONS MANUAL
NOW AVAILABLE Chancellor Richard Mobley (Arkansas' 9th Circuit) and his Ad Hoc Committee have worked diligently for two years to revise completely the 1969 Arkansas Domestic Relations Manual. The new, revised Manual has some 140 loose leaf pages in an attractive 1 1/2" binder with gold markings on flame leather vinyl cover. The binder is large enough for additional pages. The cost is $11.00 (includes mailing). Judge Mobley will discuss the new Arkansas Domestic Relations Manual at the Family Law Section's Seminar during the Association's 77th Annual Meeting at the Arlington Hotel, Hot Springs. The Seminar is scheduled for 10:40 a.m., Thursday, June 5th in the Juno Tower Suite (6th floor). The new Manual will be available for purchase at the Registration Desk of the Annual Meeting. If you wish to order now, use this ORDER FORM.
"
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REVISED 1975
r------------------------------------------------, ORDER FORM I wish to order the 1975 Revised Arkansas Domestic Relations Manual at $11.00 (includes mailing). Check for $11.00, payable to the Arkansas Bar Association, is attached. NAME: ADDRESS:
_ _
NOTE: Send ORDER with check to the Arkansas Bar Association, 400 West Markham, Little Rock, Arkansas 72201
L 44/April 1975/Arkansas Lawyer
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April 1975/Arkansas Lawyer/45
By B. Tarkington
Municipal Court Judge Bert B. Larey of Texarkana, Ark .• retired December:D. 1974. First Division Chancery Judge Claude E. Love, EI Dorado, retired December 31, 1974. Neva B. Talley-Morris' book Family Law Practice & Procadure Handbook, received a complimentary book review in the January 1975 issue of the American Bar Association Journal. Independence County Bar Association was host at a Dinner honoring retiring Chancellor W. G. Wiley, 72, of Melbourne, Ark. Phillip Farris has been elected President of the Independence County Bar; John Gregg was elected Vice-President; and Bernice McSpadden re-elected Sec.-Treas. The Fort Smith law firm of Bethell, Callaway & Robertson has opened an office in Ozark. Joesph A. Strode, Pine BluH, has become a partner in the law firm of Brid¡ ges. Young, Matthews & Davis. A1en D. Epley, Eureka Springs, has joined Lewis E. Epley, Jr. to form the firm of Epley &
Epley, LTD. David D. Solomon, Helena, has been appointed by Gov. David Pryor as Highway Commissioner to represent Districts One & Ten. J. Hugh lookadoo, Jr., Arkadelphia, has retired from his law firm following his election as Circuit Judge, 8th Judicial Circuit Second Division. The law firm name has been changed to Lookadoo, Gooch & Ashby. Ronald M. McCann, Fayetteville, has become associated with the law firm of 46/April 1975/Arkansas Lawyer
Niblock, Hipp & Odom. Byron Freeland, Little Rock. has Joined the law firm of Spitzberg, Mitchell & Hays. Roy E. Thomas, Batesville, has opened his office for the practice of law in the Barnett Bldg. Mike Gibson, Osceola, has joined Mitchell Moore & Professional Associates. Col. William Myers, Fayetteville, has opened a new office in the Ozark Thea-
ter Bldg" Suite 2A. Elizabeth Brooks, Trust OHicer with Union National Bank of Little Rock, has organized a personal service department designed primarily to help women with financial information. Associate Justice John Fogl."an spoke to the Arkansas Association of Women Lawyers at their January meeting. Louis B. Jones, Jr., has become a partner in a Forrest City law firm and the name now reads Butler, Hicky & Jones. David T. Hubbard, formerly of Fort Smith, IS now with the Social Security Administrative Bureau of Hearings & Appeals in Little Rock. Arlene Heath, Little Rock, has been appointed as a Deputy Prosecuting Attorney. Governor Pryor appointed Otis Turner, Arkadelphia, as a legislative aide. William R. Wilaon, Jr., Little Rock, worked with Ksneaster Hodges, Jr., Newport, as his legislative coordinator. R. A. Eilbott, Jr., Pine BluH, has been appointed to the state Police Commission. Ken Castleberry and W. D. Gaddy have been appointed to Gov. Pryor's leg islative staff. Edwin R. Beth-
une, searcy, has been reappointed chairman of the Board of Directors of the Federal Home Loan Bank of Little Rock. Robert Edwards, Searcy, has been appointed Deputy Prosecuting Attorney for White County. Herby Branscum, Perryville, has been elected to the newly created office of Municipal Judge of Perry County. Robert TolMH1, Jr., White Hall City Attorney, Jefferson County, has been elected President of the State City Attorneys Association & Timothy Boa, Pine BluH City Attorney, was elected
Sec-Treas. Lee Ward has been elected President of the Piggott Chamber of Commerce. Lowber Hendricks, formerly of Little Rock, is now associated in the law firm of Hale. Hendricks, Fincher & Hoofman, No. Little Rock. Csrl B. McSpadden, Heber Springs, has been eiected Chancellor for the 18th Chancery District. The law firm of Oimslead & McSpadden has been changed to read Olmstead & Choate, Earl N. Olmstead and Stephen Choate. Robert E. Boyer, Fort Smith, has been appointed Deputy Prosecutmg Attorney for Sebastian County. Sam E. Gibson is the new President of Saline County Bar; George Ellis IS Vice-President; & Richard Mattison Sec.-Treas. John Robert Graves, Hope, has been elected President of the Southwest Arkansas Bar Association; James H. McKenzie, Vice-President; & Talbot Feild, Jr., Sec-Treas. Tad H. Sanders has Joined a Mountain Home law firm and the name changed to Engeler. Johnson & Sanders. Stephen R. Bigger, formerly of Jonesboro, is now in the practice of law in Pocahontas. New officers for the Union Cou nty Bar elected Albert Hanna, President; Ronald Griggs, Secretary; and MJke Landers, Vice-President. Keith Rutledge, Batesville, has been elected President of the Southside Water Association. Larry James Hartsfield has joi ned a Newport law firm and the name changed to Thax-
EXECUTIVE COUNCIL NOTES By James M. Moody 5ecretary-Treasurer
At its last meeting before the legislature went into regular session for 1975, the House of Delegates was primarily concerned with endorsing proposed legislation to be sponsored by the Association. The House endorsed a new public defender bill which would make the program optional for judicial districts with each district arranging for its own financing. This represented a change from the previous public defender bill approved by the Executive Council. Approval was also given to the proposed Arkansas Criminal Code and numerous other bills which had been screened by the committee on legislation and the Executive Council at earlier meetings. Jim Rhodes has replaced Bill Wilson as the legislative liaison for the Bar Association. Jim is doing an
outstanding job but needs the support of all members of the Association to contact their legislators and urge passage of the proposed bill to make the effort a complete success. The Fall Legal Institute has moved back to Fayetteville on the weekend of the Texas A & M game. A good program has been planned and we urge you to attend. The secretary is happy to report that the finances of the Association are in good shape. The books were recently audited by E. L. Cullum & Company and, as of the end of the fiscal year ending June 30, 1974, the Association showed a gain of $11,016.16 of income over expenses. The Association has current assets of $2,780.32 for total assets of $68,580.70. This compares with the total current liabilities of $27.22 and member of equity of $68,577.92, an
ton, Hout & Hartsfield. Harold L. Hall, Public Defender of the 6th Judicial District has been elected the first President of the State Public Defender Associa-
duct. Joseph A. Strode has become a partner in the law firm of Bridges, Young Gillison, Jr. has been named President
of the Lake Village Chamber of Com-
dent; John R. Lineberger, Fayetteville, Second Vice-President; Buford M. Gardner, Jr., Harrison, Secretary; and Bill E.
member of the Barrett, Wheatley, Smith
Columbia, Calhoun, Dallas, Lafayette, Ouachita & Union counties with Dr. McCarthy DeMere as guest speaker. Dr. Robert A. Lellar is the editor of a new book entitled Appellate Judiciaf Opinions. Dale Price, Little Rock, has been reappointed to the Arkansas Supreme Court's Committee on Professional Con-
"-
Matthews and Davis, Pine Bluff. David F.
tion. Other officers elected were: Don Langston, Ft. Smith, First Vice-Presi~
Ross, Blytheville, Treasurer. The Columbia County Bar will sponsor a meeting in March for lawyers and physicians of
increase of $6,304.03 over members' equity on June 30, 1973. A projection of expenditures for the last six months of 1974 indicates the Association will stay within its income. Bob Jones reported to the House on the resu Its of a su rvey made on the practicality of a statewide lawyer referral service. Final action on the proposal was deferred for further study on alternative means of financing the project. The House also heard a report from Bill Arnold as chairman of the professional utilization committee on their proposals for better distribution of lawyers throughout the State to serve those areas which have a deficiency of lawyers. Membership remains at a record level with 1,935 active and current members. /I.
merce. Tom D. Womack has become a & Deacon law firm of Jonesboro. David
M. Hargis, formerly of Monticello, is now an assistant US Attorney for Eastern Ar-
kansas in Little Rock. William H. Howell, formerly with the U of A Law School Legal Aid Clinic. is the new Director of
the Pulaski County Legal Aid Bureau. New officers for the North Pulaski County Bar are: William A. Lafferty, President; Robert L. Pierce, Vice-Presi路
dent; Zachary D. Wilson, Secretary; and Hubert Alexander, Treasurer. ~... ~"-
April 1975/Arkansas Lawyer/47
Construction Mortgages in Arkansas-Questions and Partial Answers -by Donis B. Hamilton As economic conditions have turned down, institutions in the construction lending field have become more and more conscious of their security, Inadequate loan-closing techniques and poorly drafted lien instruments in construction loans have caused some lending institutions to take losses which might have been avoided.
Most problems in connection with construction mortgages relate to mechanics' and materialmen's liens and the priorities granted to these liens by statute. Mechanics' and materialmen's liens may either relate only to the building or to the building and the land upon which the building is situated. Under Ark. Stats. Sec. 51-605, such liens on new and independent structures are superior to all prior mortgages except those with appropriate construction language made for construction purposes. This superior priority of lien does not extend to the land or any existing buildings. The statute creates a separate and distinct lien upon the separate and distinct improvement and can be enforced only by sale under execution' Under Ark. Stats. Sec. 51-607, the liens take priority both as to land and building over all other encumbrances subsequent to the time that construction was commenced. Since many construction mortgage lenders do not advance all of the construction money at the time the mortgage is executed, but make advancements proportionately as work progresses on construction, the problem becomes one of making the additional advancements relate back to the original mortgage so as to defeat any intervening mechanics' and materialmen's liens.
When Will Future Advances Under the Construction Mortgage Take Priority Over Mechanics' and Materialmen's Liens? Ark. Stats. Sec. 51-605 allows mortgages given for the purpose of raising construction money which were filed prior to the commencement 01 construction to take priority over mechanics' and materialmen's liens. The Arkansas Supreme Court has held that to qualify future advancements for preferential treatment under the statute, certain requirements must be met 2 : (A) the construction mortgage must be executed before the commencement of the building; (B) the mortgagee must be bound to advance the money for the construction; and (C) that fact must be stated in the mortgage. What Constitutes "Commencement 01 Such Building"? The time that construction is actually commenced and the act which constitutes commencement of construction became of supreme importance following the ruling in Planters Lumber Company v Jack Collier East Company, 234 Ark. 1091, 356 S.W. 2d 631. There the court held that even though a materialman furnished supplies after the mortgage had been recorded, his lien related back to the commencement of construction (which was prior to the recording of the mortgage) and therefore was entitled to priority as against the construction money mortgagee. This was held to be the rule notwithstanding the fact that the mortgage lender had paid off all materialmen who had furnished materials prior to the date the construction mortgage was recorded. In the case of Marks Sheet Metal v Republic Mortgage Company, 242 ,. For an excellent discussion of the priority
of liens as to buildings, see Escolas, "Priority of lien on Real property in Arkansas. Mortgages and Mechanics' and Ma~ terialmen's Liens," 12 Ark. L. Rev. 170. 2. Planters Lumber Company v Jack Collier
East Company, 234 Ark. 1091. 356 S.W.
2d. 631.
48/April 1975/Arkansas Lawyer
Ark. 475, 414 S.W. 2d, 106, the court held that measuring a lot to establish the location of a building requiring the placement of a wooden peg did not constitute "commencement of such buildings and improvements" under Ark. Stats. Sec. 51-607 and defined that phrase as meaning "some visible or manifest action on the premises to be improved, making it apparent that the building is going up or other improvement is to be made." Clearing brush and trees from a building site3 and dozer work' have also been held to be improvements to rather than upon land and, therefore. did not qualify under the mechanic's lien statute. However, Act 122 of 1969 brought both improvements to and upon land under the statute making site preparation a valid subject of mechanic's liens. One of the questions yet answered by the court is whether the change in Ark. Stats. Sec. 51-601 bringing site preparation under the mechanics' and materialmen's lien would also change the court's definition of "commencement of such buildings and improvements" under Section 51-607 as announced by the court in the Marks Sheet Metal case. 5 It would seem safest to treat
site preparation as commencement of construction until the court should rule on the question. One of the collateral problems relating to the commencement of construction was caused by a recent curative act in response to the court decision of Mahaffey & Associates, Inc. v Brophy, 249 Ark. 884, 462 S.w. 2d 226. In that case, the court held that services of a surveyor or civil engineer were not covered under the mechanics' liens statute. Shortly afterward, Act 291 of 1971 (Ark. Stats. Sec. 51-642) was enacted which provides that "every engineer or surveyor who shall do or perform any engineering or surveying work upon any land, building, erection or improvement upon land ... shall have a lien upon such land. building. erection or improvement upon land to the extent of the agreed contract price or a reasonable price for those services." The statute goes on to provide that the lien does not attach until it is duly filed of record with the Circuit Clerk in the county where the land or improvement is located. A recorded lien would then be enforced in the same manner as a mechanic's or contractor's lien. The question is whether or not services of architects fall within the purview of the statute. Ark. Stats. 71301 defines architect as "a person who is technically and legally qualified to practice architecture." The requirement that architects have licenses exempts duly licensed or registered professional engineers but only insofar as concerns work incidental to the engineering practice. The definition of "practice of engi-
neering" in Ark. Stats. Sec. 71-1020 does not exclude architects but does exclude "the non-creative, non-professional work performed by the act of measuring land or drawing or reading plans or other work normally done by mechanics, technicians, land surveyors or draftsmen." Apparently, engineers can practice architecture to a limited extent. architects can practice engineering provided they are licensed, but surveyors can do neither. Since the statutes offer little help answering the question above proposed, prudence would dictate that any lien filed by an architect, engineer. or surveyor stating that engineering or surveying work had been done should be respected by the mortgage lender and treated accordingly. In order to avoid any question whether construction had been commenced prior to the recording of the mortgage, a photograph should be taken of the work site at the time of loan closing showing its unimproved state and a check of the Circuit Clerk's records should be made to verify the absence of engineers' or surveyors' liens. Continued on page 50
3. Lambert v Newman, 245 Ark. 125, 431 S.W. 2d 480. 4. Skipper v Hoskins, 247 Ark. 235. 444 S.W. 2d 875. 5. Harry Meek asks the same question in a footnote to his article "Mortgage Provi路 sions Extending the Lien to Future Advances and Antecedent Indebtedness," 26 Ark. l. Rev. 423.
Donis B. Hamilton is a partner of the firm of Cathey, Brown, Goodwin & Hamilton, Paragould. He is a native of Russellville and did his undergraduate at Arkansas Polytechnic College, Russellville. He graduated from the University of Arkansas School of Law at Fayetteville in January, 1968, and was admitted to practice the same year. He is presently serving as chairman of the Arkansas Bar Association Public Information Committee and as chairman of the Public Education Committee of the Arkansas Bar Foundation.
April 1975/Arkansas Lawyer/49
Mortgages, Continued from page 49
What if Construction Commenced Prior to Loan Closing? If an over eager construction borrower commences construction prior to the execution and recording of the construction money mortgage, nothing can be done to prevent mechanics' and materialmen's liens from taking priority over the construction mortgage. Planters Lumber Company v Jack Collier East Company, supra. In such a situation the construction lender must either refuse to close the loan or take the risk of intervening liens. The construction lender can minimize his exposure by strictly supervising the disbursement of loan proceeds or by taking collateral other than the land upon which the improvement is being built as additional security. In the absence of the alternative suggested, no satisfactory legal steps can be taken to protect a mortgage lender. What Language Should be Used? The language used in the construction money mortgage should vary according to the procedures to be followed in the loan. If the construction monies are to be advanced in a lump sum at the time of the closing of the loan and the execution of the mortgage, then a statement should be included clearly indicating that the money is being advanced for construction purposes. 6 It may appear that the presence or absence of such recitals as to the purposes of the loan is surplusage. As to the lot, this is true, since as to the lot and any existing building in
5O/April 1975/Arkansas Lawyer
its unimproved state, the mortgagee has a lien which is prior to that of the mechanic and materialman.' Where, however, a construction loan is made with the expectation that the improvements made will assure the adequacy of the lender's security, the appropriate construction language prevents the mechanic and materialman from asserting a prior lien as to the improvement. This prior lien can attach only where the improvements can be removed without damage to the freehold, but the lender usually desires that the improvements not be removed at all. Hence, there is a legitimate need for the properly drawn construction loan mortgage even though all funds are advanced prior to the commencement of construction. The following language may be used to express the purpose for which the loan is made: "This trust deed (or mortgage) is given for the purpose of raising money and funds with which to make erections, improvements and buildings on the land described herein." In mortgages where there will be future advancements to be secured by the construction mortgage, in order for there to be priority there must be an unequivocal agreement in the instrument itself binding the mortgage lender to make the advancements.路 The following language has been approved by the court in Planters Lumber Company v Wilson, 241 Ark. 1005, 413 SW. 2d 55; and in House, Trustee v Long, 244 Ark. 718, 426 SW. 2d 814: "Grantee agrees that the acceptance and recordation of this mortgage binds. Grantee, its successors and assigns, absolutely and unconditionally, to make said loan and advances. Such advances will be made as requested by Grantor as such work progresses (or if the advancements are to be made under other circumstances, so state)." Are There Other Provisions Which are Necessary or Desirable? The construction lender must recognize that it is possible that his borrower may fail to discharge a lienable claim and that it would be to the advantage of the lender to do so in order that his security may consist of a building eligible for permanent financing.
In instances where the borrower has failed to pay lienable claims, the lender may wish to make advancements to avert claims being filed or cause the release of filed claims against the property. In some cases, moreover, the lender may wish to make the advancement and be protected by his mortgage even though his advancement will place him beyond his original commitment and, in so doing, make his advancement subordinate to those lienable claims which he may not have discharged. This is a difficult area in the light of the following cases: In Peoples Building & Loan Association v Leslie Lumber CompanY,9 a vendor sold property to a vendee requiring of the vendee that certain improvements be made on the subject property. The court held that when the vendor required the improvements to be made he lost his right to claim that his lien was superior to mechanics' or materialmen's liens. In Ashdown Hardware Company v Hughes,lO a split court held that where a portion of the money in a construction money mortgage was used to payoff a prior mortgage and the mortgage stated that fact, the construction mortgage wou Id take priority against mechanics' and materialmen's liens. The majority opinion ignored the Leslie case. Judge George Rose Smith in his dissenting opinion said that he could not reconcile Ashdown with the Leslie case.
However, in the recent case of House, Trustee v SCo"," the court said: "We do not intend this opinion to be understood as saying that a lender who, in good faith, has made a construction money mortgage will not be protected when he is su bsequently forced to purchase or pay off an outstanding lien or title to protect its security. Good faith in each instance is the guide." 6. Sebastian Building' Loan Association v Minton, 181 Arl<. 700. 27 SW. 2d 1011; Jack Collier East Company y Barton, 228
Ark. 300. 307 S.W. 2d 863. 7. Supra, footnote NO.1. B. American Bank and Trust Company Y First Nattonal Bank of Paris, 184 Ark. 689, 43 S.W. 2d 248; Lyman Lamb Company Y Union Bank of Benton, 237 Ark. 629, 374
SW. 2d 820. 9. 183 Ark. 800. 38 SW. 2d 759. 10.223 Ark. 541. 267 S.W. 2d 294. 11.244 Ark. 1075.429 SW. 2d 108.
Each lawyer advising a construction lender will have to determine for himself what he will advise his client since he will be charting a course that has not been completely covered by prior Supreme Court decisions, nor by the express terms of any statutes. Should the construction lender and his lawyer desire to contemplate and deal with these problems, the following provisions are suggested: "Should the mortgagor fail, refuse or neglect to complete the structure according to the plans and specifications furnished the mortgagee or to pay any lienable claims filed or threatened to be filed with respect to the mortgaged property, the mortgagee may, but shall not be requ ired to, make advancements for this purpose and treat the advancements as a part of the mortgagee's commitment to advance funds hereunder to the extent of such commitment. Also, the mortgagee may advance funds for such purposes if the mortgagor shall fail to do even though any such advancements shall exceed the original commitment of the mortgagee, with advancements in excess of the original commitment as between the mortgagor and the mortgagee to be protected and secured by this mortgage." We see no particular danger in the use of this language since the court has previously indicated that a mortgagee may in good faith, do what he must do to protect its security and it wou Id appear to the writer that the completion of the project may be of the utmost importance to the mortgagee when the original mortgagor defaults in his undertaking. What if Part of the Loan Proceeds are to be Used for Purposes Other than Construction? In the early case of Sebastian Building & Loan Association v Minten,'2 the court held that the construction mortgagee was under no obligation to see to it that the proceeds from a lump sum construction mortgage were actually used for construction purposes. In that case the mortgagor paid to his vendor (not connected with the mortgage lender) the balance of the purchase price on a lot. The court held that the sole test of superiority of liens upon land before improvements are made is the purpose for which the
money is raised or borrowed and not the use made of it. The court noted that laborers and materialmen could learn the purpose for which the money was borrowed by examining the Clerk's records and if they did not believe the borrower would use it for that purpose, they could refuse to perform the labor or furnish the material toward the completed improvement. In later cases, however, the court retreated from its position in the Minten case, particularly where the construction mortgage lender, as distinguished from the borrower, diverts the funds from construction purposes, In Planters Lumber Company v Wilson Company, supra, the construction mortgage lender withheld the purchase price of the lot which it sold to the borrower from the proceeds of the construction mortgage. The court held that the construction mortgage lien was subject to a materialmen's lien to the extent that construction money had been diverted by the lender to purposes other than construction. The court reached a similar resu It in First National Bank of Conway v Conway Sheet Metal Company," where a portion of the initial advancement under the construction mortgage was used by the mortgage lender to pay a debt owed by the borrower to it for the purchase price of the lot. In House, Trustee v Scott," the court again held a construction money mortgage to be subject to a materialmen's lien to the extent the construction mortgage lender used a portion of the initial advancement for the purpose of paying off a previous mortgage owed to the mortgage lender on the lot. The court in the Scott case announced that, in the future, it would re-examine the Minten case to the extent that it might hold that a lender can knowledgeably disburse construction mortgage money for purposes other than construction and still claim priority over mechanics' and materialmen's liens, It did, however, hold to the Minten "purpose doctrine" that when a mortgage has in good faith been placed of record for construction money purposes, the lender might properly make cash advances to the mortgagor in accordance with the agreement and would not be charged with any knowledge or
application of the use of the funds made by the mortgagor even though the mortgagor violated the terms of the recorded mortgage and used the funds for purposes other than construction, Apparently, once the mortgage lender has disbursed the money to the mortgagor for construction purposes, the lender's obligation under the statute is discharged except in those instances involving self-<:lealing, What About Intervening Liens for Fixtures? Even careful draftsmanship and attention to detail cannot prevent some exposure in construction money loans, Under Ark, Stats. Sec. 65-9-313, a security interest in fixtures may defeat a properly prepared and filed construction mortgage, In House, Trustee v Long, supra, a validly drawn construction money mortgage filed prior to the commencement of the construction was held to be subject and inferior to the security interest of Arkansas Louisiana Gas Company as to heating and cooling systems, The lien, although not perfected, attached to the goods before they became fixtures, The court there held that Arkia's security interest (as to the goods only) took precedence over the prior recorded construction mortgage to the extent that advancements had been made under the mortgages before the goods were affixed to the real estate. It was implicit in the holding that any advancements made by the construction mortgage lender without knOWledge of the security interest Continued on page 52
12. Supra, footnote No.6. 13. 244 Ark. 963, 428 S,W. 2d 293. 14. Supra, footnote No. 10. 15. See also footnote number 3 to Ark. Stat. sec. 85-9-313.
April 1975/Arkansas Lawyer/51
Mortgages, Continued from page 57
after the goods became fixtures and before the security interest was perfected wou ld take priority as to the goods. The court further held that Arkla, whose priority was thus established under Ark. Stats. sec. 85-9-313, would be entitled to remove the fixtures under the bond provisions set forth in that statute. Under the House case, therefore, it would appear that if the lien for a fixture is perfected by filing prior to the installation of a fixture in the improvement, the lien would take precedence, as to the goods only over the construction mortgage both as to advancements made prior to the installation of the fixture and those made afterwards.'5If the security interest in the fixtures is unperfected, it will still take precedence over the construction mortgage as to advancements made prior to the time the fixtures were placed in the improvement. Any advancements made by the construction mortgage lender without knowledge of the security interest in the fixture after the goods became fixtures and before the security interest in the fixtures is perfected would take priority.
What if the Construction Loan Does Not Provide Enough Money to Complete the Project? In times of rapid inflation, many builders have under estimated their building costs and have found themselves under financed. There is no practical solution to such a situation. The mortgage lender must either advance the additional money, thereby exposing himself to mechanics' and materiaimen's liens to the extent of the unplanned additional advancements or withhold any uncommited additional advancements and hope that the proceeds from the foreclosure sale of the partially completed building will be sufficient to cover his construction mortgage. In the event that the mortgage lender chooses to advance the additional money to complete an undefinanced building, it may desire to closely supervise the additional construction. If the mortgage lender should undertake supervision of the project, it is suggested that personnel outside the mortgage lending institution be hired in order to avoid any possibie claim of usury from the borrower to the extent that loan proceeds are used to compensate the
mortgage lender for services of its salaried personnel. Although problems and pitfalls do exist in the construction financing field, most problems over which any lending institution can have control can be solved by careful draftsmanship and attention to detail. Full and complete disclosure of all details of the financing should be made by the mortgage lending institution to its attorneys. The attorney should word any lien instruments to accurately reflect the transaction. By fitting the form of the instrument to the substance of the transaction, the attorney can avoid not on ly potentially embarrassing situations for himself, but also costly experiences for his client. Most situations can be worked around for which questions have been posed but no answers, or only partial answers, have been given in this article. The imagination and resourcefulness of our Bar and the financial institutions some of its members serve, will undoubtedly furnish solutions.
/ISeeking the best possible advice on how to solve a client's real estate trust problems is an attorney's key to making the right decision." If your client's real estate trust needs include: Suphisticated Property Management • Financial Feasibility • Determination of Highest and Best Use of Property • Cash Flow • Tax Shelter • Purchases, Sales and Exchanges Consult Sam Robinson, Jr. The Professional.
SAMHoB,NSON..JR. COMPANY
Sam Robinson, Jr. Company 1108 Worlhen Bank Bldg. lillie Rock, Arkansas 72201 52/April 1975/Arkansas Lawyer
C/.
"
I •
West Announces Bicentennial "Milestones of Law" Program
)bur clients building problems sooner or later will lead you to USCA
To tie-in with the nation's Bicentennial observance and its own Centennial in 1976, West Publishing Company has announced a "Milestones of Law Balloting" in which members of the bench and bar are asked to vote for the developments they consider to be the most crucial in the 200 years of U.S. legal history. Based upon the results of the national balloting, West will publish a book tenatively entitled, "200 Years of American Law: Milestones in Our Legal History." First announcement of the program was made in an advertisement in the November issue of American Bar Association Journal. The insertion included a tip-in ballot which readers were asked to tear off and mail to West. On the ballot form is a list of possible milestones - laws, decisions, and other developments put on by West only to stimulate thinking. They are not necessarily offered as nominations by the publisher, and blank spaces are provided for those entering the voting to write in their own nominations. In its announcement, West said that it was seeking to "commemorate 200 years of American law, and to focus attention on its pervasiveness in our society." The announcement asked the help of the bench and bar to make the projected publication truly reflective of the most significant developments in 200 years of American law. Entrants are asked to hold their nominations to 10 or less and to exclude the Constitution and the Declaration of Independence, because their inclusion on such a list would be automatic. ;~
Before today's builder commi ts on any1hing, he had better be aware of the opportunities and the restrictions in federal laws. That's why he needs the help of a lawyer at every stage, beginning with initial planning and site selection. United States Code Annotated enables you to give builders, large and small, the advice and counsel they must have information about finane路 iog and loan requirements, mortgage insurance, interest rate incentives,
builder certification requirements. denial of benefits, labor standards, land development, new communities, urban renewal, housing for the disadvantaged, rental units for the elderly. condominiums and many other areas. To help builders in your community, 01' to assist any other business or individual directly affected by federal law, you need USCA. You'll come to it. Archie C. McLaren, Jr.
!
llS CO PI Y
DI
Directors Plaza-Suite 202 3035 Directors Row, Memphis, Tenn. 38131 Phone; '1011744-8420
US. Code Annotated Sooner or later it becomes indispensable
AMERICA'S GOAL JUSTICE THROUGH LAW
"'",,-
April 1975/Arkansas Lawyer/53
NEWS RELEASE Arkansas Bar Association Release: Immediate
400 WEST MARKHAM Little Rock, Arkansas 72201 For additional information, contact: C. E. Ransick, Executive Director
SUBJECT: LAW DAY CHAIRMEN
Judge Thomas F. BUll of Fayetteville and James A. McLarty, III of Newport have been named as 1975 Law Day USA chairmen to head the statewide observance on May 1. Judge BUll will chair the efforts for the State Judicial Council with McLarty heading the program for the Arkansas Bar Association. More than 50 local bar associations will participate in the annual celebration. which this year will be keyed to the theme "America's Goal: Justice Through Law." A native of Eureka Springs, Judge Butt has resided in Fayetteville since graduating from the University of Arkansas in 1938 with LLB and JD degrees. He has instructed in the U of A School of Law and is a graduate of the National College of State Judiciary, Reno, Nev Judge BUll was in private practice until 1951. when he was elected Chancery and Probate Judge of the 13th Chancery Circuit and is now in his fourth term. The senior Chancery Judge in Arkansas, he is a past president of the Arkansas JUdicial Council; is a member of the Washington County, Arkansas and American Bar Associations; is one of the Executive Council and in the House of Delegates of the Arkansas Bar; and holds membership on the Supreme Court Committee on Rules of Civil Procedure. An active civic leader, Judge Butt served in the
U.S. Army during the Second World War and is currently a Brigadier General in the Army Reserve, having served as Chief Judge of the U.S. Army Judiciary. He is also a member of the Westark Area Council of the Boy Scouts. An attorney in the Newport law firm of Pickens, Boyce, McLarty & Watson, McLarty was admitted to the Bar in 1968 after receiving BSBA and LLB degrees from the University of Arkansas at Fayetteville. He then served as law clerk to Justice George Rose Smith of the Arkansas Supreme Court. McLarty is a former president of the Jackson County Bar Association and is also a member of the Eighth Chancery, Arkansas and American Bar Associations. Within the Arkansas Bar, he has served on the Workmen's Compensation Committee and is now on the Public Information Committee. Other professional affiliations include membership in the Arkansas Trial Lawyers Association, the American Judicature Society and the Institute of Politics in America, where he is a Fellow and was a member of the Inaugural Class in 1973. A former president of the Newport Rotary Club, McLarty has headed the Heart Association and Boy Scout drives in Jackson County. He is a member of the First United Methodist Church Administrative Board and has served as adult counselor to the Senior Methodist Youth Fellowship for five years.
(Editor's Note: Each Local Bar Association will have a Law Day chairman. Please check with the local Bar president in your area for this information.)
54/April 1975/Arkansas Lawyer
Interstate Land Sales Act: Coverage And Exemptions by George J. Strange INTRO DUCTIO N The Interstate Land Sales Full Disclosure Act, 15 U.S.C. 1701-1720, which became effective in 1969, is modeled very loosely on the Securities Act of 1933. Like the Securities Act, it nearly always (in theory, always) applies as a disclosure statute forcing disclosure of relevant information rather than as a su bstantive control on the type of economic agreement a buyer and seller can reach. It contemplates that the purchaser or lessee of real estate subject to the Act will be provided with a property report, roughly analogous to a securities law prospectus, disclosing relevant information about the property he is purchasing. More detailed data in the form of a statement of record, loosely analogous to a securities law registration statement, must be on file with the Office of Interstate Land Sales Registration ("OILSR"). Like the SEC, OILSR does not purport to verify the information in material filed with it. Responsibility for the accuracy of such material is on the registrant, i.e. with seller, whose registration with OILSR creates no presumption of accuracy. Although most lawyers today are aware of the Interstate Land Sales Act, and aware that there can be serious consequences from ignoring it, many are confused as to the Act's scope. All too often attorneys for sellers or lessors of real estate in transactions clearly subject to the Act are unaware of the Act's application. In view of aggressive enforcement efforts by OILSR and in view of the severe civil and criminal sanctions established by 15 U.S.C. 1703, 1709, and 1717, such ignorance can have serious ram ifications. On the other side of the coin, attorneys for disappointed purchasers may fail to advise their clients of
highly effective remedies because those attorneys do not understand the extent of the Act's application. This article is an effort to outline the Act's scope and its exemptions with particular emphasis on points frequently causing confusion. GENERAL SCOPE Some sellers of real estate (hopefully not those represented by counsel) assume that the title of the nterstate Land Sales Act is self-explanatory. The unsophisticated may assume that the Act applies only to sales made to residents of a different state from the one where the project is located or that a project is exempt unless it makes at least a few sales to out-of-state customers. Logical though that may sound, it is clearly not a correct statement of the law. The word "Interstate" in the title to the Act implies merely that for the Act to apply there must be use of the mails or "any means or instruments of transportation or communication in interstate commerce." 15 U.S.G. 1703. Identical expressions have been interpreted sweepingly in other Federal laws. See e.g. U.S. v. Wolfson, 405 F. 2d 779, 783-84 (2d Cir. 1968) cert. denied 394 U.S. 946 (1969). It is impractical to market real estate without using the mails or some channels of communication that would probably be construed as interstate commerce. Hence, a sales program so intrastate in character as to be beyond the Act's scope is almost a fantasy. EXEMPTIONS In general - misconceptions about exemptions The Act starts from a very broad assertion of jurisdiction over sales or leases of fifty or more lots of real estate. 15 U.S.C. 1701 (3), 1703. Then the Act and the Regulations issued under it apply a number of
A 1969 cum laude graduate of Har-
vard Law School, George J. Strange is associated with the Dallas law firm of Stalcup, Johnson, Meyers & Miller. Drawing upon published sources and his dealings with the federal agency involved, he presents here a discussion of a federal statute whose scope and impact is greatly underestimated by most lawyers.
specific exemptions to limit that jurisdiction. If the Act and the Regulations are silent about a given type of real estate sale from any project of fifty or more lots, the effect is inclusion rather than exclusion. Further, since the basic coverage of the Act is worded sweepingly and since the exemptions are worded narrowly, gray areas that the draftsmen may not have considered carefully tend to be included rather than excluded. For example, it is often assumed that the Act applies on Iy to resort real estate or retirement-home communities. This is a myth. VacationContinued on page 56
April 1975/Arkansas Lawyer/55
Sales Act, Continued from page 55
home and retirement-home developments were the primary focus of Congress when it passed the Act. Hearings on S. 275 before the Subcomm. on Securities of the Senate Comm. on Banking and Currency, 90th Cong., 1st Sess., 1, 113-149 (1967). However, there is nothing in the Act or the Regulations to limit the Act to such projects. The most that can be said is that OllSR has given a slight amount of priority in its enforcement efforts to vacationhome or retirement-home real estate. Even urban and suburban subdivisions are swept into the Act's dragnet. See Exemption Advisory Opinion OllSR No. 1-D436-44-16 (1973) repro I-land Development law Reporter-OllSR-B-208. (Exemption Advisory Opinion OllSR No. hereinafter cited as EAO No. and references to I-land Development law Reporter-OllSR-B hereinafter cited as lOlR). It is irrelevant that the cities within which such subdivisions are located, or other state or local authoriites, may vigorously regulate the developer's activities. One assumes that Congress' failure to exempt lot sales in typical residential developments or in trailer parks was intentional, but one wonders whether Congress originally foresaw application of the Act to real estate that is entirely nonresidential in character, such as shopping centers or industrial parks (discussed below under "Commercial and Industrial Property"). Less Than Filty Lots The exemption for "the sale or lease of real estate not pursuant to a common promotional plan to offer or sell fifty or more lots in a subdivision," 15 U.S.C. 1702(a) (1), is the most important exemption in the Act. However, one should note the broad definition of subdivision in 15 U.S.C. 1701 (3) and in particular the fact that there is a presumption of a common promotional plan when a single developer, or a group of developers in concert, offer subdivided land for sale and such land is contiguous or is known, designated, or advertised as a common unit or by a common name. Although a seller may consider a given project to involve the sale of
56/April 1975/Arkansas Lawyer
less than fifty lots, that point will often be highly debatable. For example, he may have an interest in other projects in the same general area and the aggregate number of lots for sale may exceed fifty. See e.g. EAO No. 1-0173-35-1 (1969), repro lOlR 5. likewise, if projects owned by various sellers closely complement one another or are sold in cooperation with one another, there is a serious risk that the developments are all part of a "common promotional plan" and that therefore all of them must be aggregated in determining whether fifty or more lots are being offered. In fact, even sales of lots from one entity to a related persen may be considered in determining whether fifty or more lots are sold. See EAO No. 1-0278-37-3 (1970), repro lOlR 23. It should also be noted that one can be in violation of the Act before actually selling fifty lots; in other words, one can technically violate the Act by selling only a few lots if one does so pursuant to a plan to offer fifty or more lots. EAO No. 10271-09-13 (1971), repr. lOlR 30. To take an extreme example, a developer selling only three or four lots per year can theoretically be in violation of the Act if he sells them as part of a definite, long-term plan to eventually sell fifty or more lots in the same subdivision. Sales to Builders and Sales 01 "Improved" Property Implications lor Condominiums Two of the more important exemptions under the Act are: (1) the exemption for sales to professional builders or middlemen reselling to builders: "the sale or lease of lots to any person who acquires such lots for the purpose of engaging in the business 01 constructing residential, commercial, or industrial buildings or for the purpose of resale or lease of such lots to persons engaged in such business." 15 U.S.C. 1702(a) (9). Most professional builders neither need nor want the protection of the Act. (2) the exemption for sales of "improved" property: "the sale or lease of any improved land on which there is a residential, commercial, or industrial building, or ... the sale or lease of land under a contract obligating the seller to erect such a building thereon within a period of
two years." 15 U.S.C. 1702(a) (3) (emphasis added). The category "residential, commercial or industrial" seems broad enough to encompass ninety-nine percent of the main buildings (as opposed to outbuildings) that might be placed on a lot. A seller relying on the exemption for sales to professional builders finds the modern principle of "let the seller beware" carried to unheard-of lengths. OllSR takes the position that a seller of real estate relying on this exemption is absolutely responsible for assuring that his purchaser is a professional builder with the requisite intent to build on the property. EAO No. 10327-05-11 (1971), repro lOlR 102. In OllSR's view no amount of good faith or prudent inquiry by the seller nor written documentation signed by the purchaser gives the seller a defense if it later becomes clear that the purchaser was not in fact a builder with the necessary intent. EAO No. 1-D432-49-35 (1973), repro lOlR 206. OllSR's view has not been court-tested, but it raises the curious possibility of a purchaser with civil remedies under the Act because his fraud led his seller to believe an exemption was available. The "improved" property exemption has also been a fertile source of confusion and controversy. Confusion arises partly because it is misleading to refer to the 1702(a) (3) exemption as an "improved" property exemption at all. Most of us think of improved property as cleared property ready for immediate building and immediate use thereafter. However, the 1702(a) (3) exemption is unavailable for property improved in that sense. Instead, it is aimed not at property ready for building but at property that has already been built on or that the seller obligates himself to build on. Controversy also arises concerning the option permitted a seller to commit to build within two years instead of actually having a building on the property at the time of sale. This option has become a field of study in itself. See e.g. EAO No. 1-0428-29-18 (1973), repro lOlR 201. The importance of questions involving this option has been augmented by OllSR's position that condominium units can be subject to the Act. OllSR holds the
view that a condominium unit is a real estate "lot." See 24 C.F.R. 1710.1 (h), EAO No. 1-0423-05-18 (1973), repro LOLR 197, 199. Cf. 38 Fed. Reg. 23866 (Sept. 4, 1973). If one accepts that view, it follows that, unless otherwise exempt, condominium projects of fifty or more units are covered by the Act. The improved property exemption is the only plausible exemption for a great many condominiums. Alreadycompleted condominium projects or existing buildings being converted to condominium regimes should readily fit into this exemption. The major problem relates to condominium units that are being sold while the condominium project is under construction. To avoid problems with OILSR, a seller of such units must make a commitment to his purchasers to complete construction with in two years, and OILSR is fairly rigorous as to the details of the commitment it expects him to make. See 39 Fed. Reg. 782425 (Feb. 28, 1974). Commercial & Industrial Property Contrary to popular belief, the Act does apply to commercial and industrial property. See EAO No. 10438-44-16 (1973), repro LOLR 208; cf. Hearings on S. 275, supra, at 309. Last summer Congress amended the Act to create an exemption for certain industrial and commercial real estate. Pub. Law 93-383, 812(b) amending 15 U.S.C. 1702. Unfortunately, qualification for the exemption depends upon satisfying a lengthy set of conditions set forth in the statute. In the main these conditions are reasonable, but their effect is to make it unlikely that a seller will benefit from the exemption unless he is aware of it in advance of his sales and is careful to make it apply. In particular, there are certain written statements the seller must obtain from purchasers that he would otherwise be unlikely to get. On-site inspection No exemption from the Act is more often sought and less often available than the one in 15 U.S.C. 1702(a) (10). The requirements for this exemption (as further elaborated in 24 C.F.R. 1710.11 are complex, but as a practical matter the first two questions to ask are: (1) Will "each and every" purchaser or his spouse visit the pro-
perty before buying? Frequently this is out of the question because lots have already been sold without the necessary inspection. (2) Can title to each purchaser's lot be delivered to him "free and clear of all liens, encumbrances, and adverse claims" except for certain very narrow types of permitted encumbrances? The permitted encumbrances relate to utility easements, beneficial restrictions enforceable by others in the subdivision, and the lien of taxes not yet due and payable. It appears that in 01 LSR's view nearly all title exceptions, even minor ones, that do not fit squarely within one of the three classes of permitted encumbrances cause the exemption to be lost. For example, reservation of the mineral rights will cause the exemption to be lost. EAO No. 2-0311-10-5 (1970) repro LOLR 144. Even if available, this exemption is difficult to live with because of burdensome record-keeping requirements and because it requires a short-form filing with OILSR. A literal reading of the statute would suggest that the short-form filing is not necessary when the property involved is completely free and clear of title problems, i.e. that the shortform filing is necessary for this exemption. See 24 C.F.R. 1710.11(a); ct. Address of then Interstate Land Sales Administrator Lehtonen in Practising Law Institute Transcript, Interstate Land Sales 127, 138 (1970); Gandal, General Outline of the Interstate Land Sales Full Disclosure Act, 3 Real Estate Law Journal 3, 12 (summer, 1974). Other statutory exemptions In addition to the above, 15 U.S.C. 1702(a) contains exemptions for (1) sales in subdivisions in which all lots are five acres or more in size; (2) sales pursuant to court order; (3) sales of evidences of indebtedness secured by real estate; (4) sales of securities of real estate investment trusts; (5) sales by governmental agencies, and (6) sales of cemetery lots. In short, Congress has taken pains to specify several exemptions for very narrow situations, some of which would probably not be covered by the Act anyway (notes secured by real estate, for example). The lengths Congress has gone to in specifying some exemptions must
make one cautious about thinking that the courts will imply any other exemptions, however logical and consistent with the policy of the Act they may be. Regulatory exemptions Under authority contained in 15 U.S.C. 1702(b), five regulatory exemptions have been created. Three of these do not require action by OILSR. 24 C.F.R. 1710.13. One is a narrow exemption to be mentioned in the next section. Another is an exemption for leases of five years or less. (Throughout most of this article, discussion focuses on lot sales rather than leases, but the reader should note that leases of over five years are also covered. See 15 U.S.C. 1703 and 24 C.F.R. 1710.13(b); cf. EAO No. 1-0423-05-18 (1973), repro LOLR 197.) The third is an exemption for lots sold for less than one hundred dollars. Unfortunately, as a practical matter most sales qualifying for this third exemption will be sales of worthless land of the sort that initially gave rise to the Act. It is difficult to imagine a tract of fifty lots selling for under one hundred dollars each unless the lots are of proportions so small as to be unusable or are otherwise worthless. Two regulatory exemptions apply only if OILSR elects to grant an exemption order. One of these two is the "limited offering" exemption in 24 C.F.R. 1710.14(a) (2). See generally Martin, Qualifying Land Sales for the Limited Offering - Intrastate Exemption, 19 Prac. Law. 33 (Dec., 1973). It applies to subdivisions of less than three hundred lots located entirely within one state and offered "almost entirely" within that state. All advertising and promotional means under the seller's or his agents' control (billboards, telephoning, direct mail, etc.) must be limited to that state, and no more than five percent of the sales in any one year may be made to non-residents of that state. A serious question arises if a subdivision is operated within this exemption for years and then exceeds the five percent limit for one year. The Regulations can be read as implying that the exemption would only be terminated from that point forward. 24 C.F.R. 1710.14(c). However, OILSR's standContinued on page 58
April 1975/Arkansas Lawyer/57
Sales Act,
but in OllSR's view exempt sales
Continued from page 57
are counted in determining whether
ard exemption order for limited offerings asserts that the exemption will be terminated retroactively if the terms of the exemption are violated, and since this exemption cannot exist without the exemption order, that assertion is difficult to ignore. The other type of exemption order deals with the "single transaction" exemption. 24 C.F.R. 1710.14(a) (1). It should be remembered that the less-than-fifty-Iots exemption depends on the number of lots, not the number of purchasers or prospective purchasers. At the retail level this approach makes sense, but at the wholesale level it creates some intriguing problems. Assume a hypothetical case in which a developer has divided a tract of land into one thousand lots but has made no retail selling effort whatever. Assume that at this point he wishes to sell his entire tract of land, as is, to another developer rather than sell individual lots to retail purchasers. Is this sale technically subject to the Act? A partial answer is that the seller can get an order under 24 C.F.R. 1710.14(a) (1) exempting the sale because it is "limited to a single transaction." However, the fact that OILSR saw fit to establish a regulatory exemption for this case is more disturbing than it is reassuring. Suppose that the seller simply never realizes that the Act could apply to an isolated sale and fails to obtain an exemption order. Does he violate the Act by effecting the sale? The author would think not, but the point is not settled. Cf. Hearings on S. 275, supra, at 187.
the fifty-or-more-Iot criteria is met. See 39 Fed. Reg. 9431-32 (Mar. 11, 1974); cf. EAO No. 1-0441-42-4 (1974), repro LOLA 216; EAO No. 10351-37-4 (1971), repro LDLR 47 For example, it is OllSR's position that if one sells thirty "improved" lots in a subdivision and also sells thirty unimproved lots from that subdivision in nonexempt transactions, he is no longer able to rely on the lessthan-fifty-Iots exemption. The sales of "improved" lots are exempt, but the other thirty lots should be registered. It is thus possible, in OllSR's view, that a seller may violate the Interstate land Sales Act by the sale of one unregistered lot when all the other lots he is selling are exempt. See Address of James A. Park in Practising law Institute Transcript, Interstate land Sales 1,35 (1970). The same principles apply if the exemption of some of the lots in the subdivision relates not to sales of improved lots but instead to sales to professional builders. See 39 Fed. Reg., supra. It should be noted that by regulation OILSR has established a relief provision that will in certain very narrow circumstances avoid this problem both for sales of improved lots and for sales to builders. 24 C.F.R. 1710.13(c).
Effects of nonexempt sales Sometimes an exemption to the Act is worded so that it applies only if all of the lots in a subdivision fall within it - not merely the one in controversy. For example, the statutory exemption for lots of five acres or more in size applies only if all lots in the subdivision are of that size. 15 U.S.C. 1702(a) (2). Sale of one lot of less than five acres renders the entire subdivision subject to the Act (including lots of over five acres), EAO No. 1-0430-26-18 (1973), repro LOLA 202; and as noted above, the term "subdivision" is defined broadly. Other exemptions apply even if nonexempt sales have taken place, 58/April 1975/Arkansas Lawyer
Evasion The greatest potential problems of all for sellers of real estate arise from the fifteen words that introduce the exemption section of the statute: 'Unless the method of disposition is adopted for the purpose of evasion of this chapter ..." 15 U.S.C. 1702. A similar limitation aplies to the regulatory exemptions under 24 C.F.R. 1710.13. In other words, this qualification applied to all statutory exemptions and all regulatory exemptions except those requiring exemptions orders. It could have very far-reaching implications. Many sellers of real estate have modified their plans of development or sale specifically to avoid application of the Act, sometimes at the last minute. When is it permissible to consiously structure a development plan to fit within an exemption and when are such efforts self-defeating? OllSR has shown a tendency to accept a seller's compliance with
the strict terms of an exemption at face value and even to assist a seller in fitting within an exemption. Memorandum of John W. Kopecky, Sept. 5, 1969, repro LDlR 88, re EAO No. 1-0063-05-5 (1969), repro LDLR 86. OllSR's attitude is of great importance since to date a seller's biggest practical concern under the Act has been the enforcement efforts of OllSR. However, OllSR's views obviously do not control a private litigant, and in some cases published documents on file with OILSR would give a litigant a good start toward proving that a developer consciously changed his plans or his project to avoid the Act. See e.g. EAO No. 10438-60-7 (Dec. 7, 1973 and Jan. 11, 1974), repro LOLA 211-15. One would anticipate, however, that certain exemptions are available as against specific plaintiffs regardless of how obvious the avoidance or evasion of the Act is. For example, hopefully no professional builder can avoid the builder exemption and have the benefit of the Acts' civil remedies merely because the seller's reason for marketing his lots to builders was to escape the Act. CONCLUSION The scope of the Interstate Land Sales Full Disclosure Act is broader than is commonly believed, and several of the exemptions from the Act are narrower than they appear on first reading. ~, """.
LAWDAV MAV1
AMERICA'S GOAL .JUSTICE THROUGH LAW
alleged recruiting violations, including
the use of the polygraph as a fact-finding technique. February 7 the bar association's Law School liaison Committee and Student Bar Association sponsored a program by the Arkansas Bar Examiners. Participating in the program were Robert W.
Henry, of Conway, Bill Penix, of Jonesboro, and the late Jack Yates of Ozark.
By J. Steven Clark Director of Admissions
Professor Dick Richards recently published an article entitled, "Compensatory and Punitive Damages in Employment Discrimination Cases in 27 Ar-
kansas Law Review 603 (1973). Addition-
Dean Wylie H. Davis attended the Deans' Workshop February 20 and 21 in Chicago during the Mid-Year meeting of
A gift of $5()()(J dollars has been presented to the Law School Foundation for use at both the Little Rock and Fayette-
ally, Professor Richards has tentatively scheduled for publication an article en-
the American Bar Association. On April
ville campuses. The initial award will be
4 and 5 Dean Davis will be attending the
at the Little Rock campus to the gradu-
Pollution Devices" in the March or April issue of Motor Trend magazine.
Multi-State Bar Examination Committee meeting in New Orleans. Louisiana. The committee will be preparing contract
ate who excels in his class, ranking in the upper ten percent, and is in need of financial assistance. The award was
Professor Albert Witte recently represented the University of Arkansas at the annual convention of the NCAA in
questions for
made in the memory of Anna McGee by Paul G. Fleischer, trustee. February 17, Phi Alpha Delta law
Washington, D.C. A gift was presented to the Law
the
multi路state
bar
examination. Professor Frederic K. Spies was one of the featured speakers at the annual meeting of The Society of University
Surgeons, February 14 in Tucson, Ari-
zona. Professor Spies' topic was "Teaching Law Students in the Medical Schools."
fraternity presented a program entitled,
"Polygraph - The Lie Detecting Machine." Mr. Blake Tune of Tri-State Polygraph, discussed the uses of polygraph and demonstrated the procedu re followed in the operation of the machine. Pro-
Katherine Hatfield, junior law student at the Fayetteville campus, received the Minor W. Millwee Award for writing the
fessors Albert Witte and Frederic Spies also participated in the program. Profes-
top paper in the Legal
Southwest Athletic Conference which
course.
Professions
sor Witte served on a committee of the
titled, "The Legality of Removing Anti-
School Foundation to be known as the
"Wayne W. Owen" Award. The award, $300 dollars and a plaque is to be presented to the senior at the Fayetteville campus, who during his senior year, has made the most satisfactory scholastic progress since admission and who, in
the opinion ot the Dean of the School of Law, will become an outstanding attor-
ney,
~, ~~
drafted rules for the investigation of
NOTE: Any organization desiring to use the free services of the Speakers Bureau shou Id request the related pamphlet from the Arkansas Bar Association, 400 West Markham, little Rock, Arkansas
cessful forums on "The Problems and Opportunities of Senior Arkansans." The
72201 (375-4605). The pamphlet gives
ed by the Sociology Divisions of the Colleges and the County Advisory Councils of The West Central Area Agency on
the necessary instructions, etc. If an Association member wishes to participate as a speaker in the Speakers Bureau, the member should send name and topics to the Arkansas Bar Association.
forums were held at Henderson State
College, Arkadelphia and Arkansas Tech, Russellville and were co-sponsor-
Aging. Mr. Plaltlral' role as Discussion Leader for a Functional Legal Panel was
designed both to bring his particular expertise to the group and to encourage the group's participation by its comments and questions. Through the cour-
During January, George N. Plalliraa of Oavldaon, Plelliraa & Horn, LTO., little Rock, participated in two highly suc-
tesy of the Arkansas Bar Association, the booklet Annual Legal Check-up was distributed to those in attendance.
April 1975/Arkansas Lawyer/59
nTH Association President Jam.. B. Sharp hat worked with the Amual Meeting Committee In putting together I line 111round program. President Sharp will pre,kSe at the HOU8e of OMegat..' Meeting
ANNUAL MEETING ARKANSAS BAR ASSOCIATION
on Friday afternoon - at the conclu.kx1 of which, he will pall the gavel 10 P....l-
dent.£Ject Robert C. Compton. MoocIl·
JUNE 4-6, 1975
lion COmmittees will meet early on Friday morning; Caucus" of Delegat81 will also be held at .uch time. The Annual Meeting printed program hal the complete sche-
dule o' all event. and the program.
ARLINGTON HOTEL HOT SPRINGS, ARKANSAS
Leon Jaworski -It I, not po.alble here to recount this man'l great career. As Special Prosecutor, Watergate Special Prosection Force, he w. . . lawyer in the fineat ..,... He followed hi, friend edward L. Wright President of the Americ ... ear AslOCiatlon,1971-72. Mr. Wright will Introduce him at the Thursday afternoon a.nkm. Mr. Jaworski'. professional, civic. educational and charitable commitment. have been legion. P~lic
a.
recognition hal been In direct proportion.
Henry Wood, made a epeelal trip to San FrancllCO to set up the programs 'or Friday momlng ....d tor the YOW'lg uwy...
5ect1on. Ullng tho 11t8lt VIDEO tlpel from the Center tor Trial and Appella.e Advocecy at H••tlng. Coitege of Law, Mr. Woodl will be joined by Wlnllow llnlrnmond In pt'8IIntlng I MOCK TRIAL In an Insurance C•••• Dale Price will pre· ,Ide at the leallon.
6O/April 1975/Arkansas Lawyer
John F. Stroud, Jr. I. the Chairman o' the Atkan.a. ear Foundation. He will pr..1de at the Annual Meeting" opening luncheon on Thurlday, and present the Award.
'or Out.tandlng Lawyer, 'or Out.tandlng Lawyer·Cltlzen, and 'or Out,tandlng Local ear AalOClatlon•. The FoundaUon memben:h1p m. .Ung I• • • 'or Wed.,..dly Inomoon - to be lollowed by tho meeting o' the new Board 0' otrectOI'l.
Annuol MooIlng Co~haIrmen Honchel H. Friday ....d Lout. L. Ram.ay, Jr. have crwated • beautifully balanced program _ prol_ol end soclol. In _Ilion to tho folll..od spook.,., t ..... will be Soc· tion ....d COmmittee 5eaaion. on Thln· day morning lor tho rogIotranls' choleo. Tho Rocopllons fo, P.._ Sherp ond 10' P_t-Eloct Compton ond thoi, wlv the dinner flrlCtion., the Amual o c.. the "MoUle" Party. the Ladl.. Program, the .port. ev.-rt., IItc. guarant.. the aocl" .uccee. of the melltlng.
With Leroy ....ff. . and Leon Jawor.kI. the mh AMual M"'lng hu two of Texa.' flnett I.wy.dlz - ...d both are from Houeton. Mr....ff ~ved hi. U.S. "with h1ghoat hono In 1932 from the Unlvenlty of Texa. - he wa. EditorIn-Chlef of the Tex•• Law Review. He h., been Prwlkient of the State S.r of Texu, 1973·74, Pre.idem of the Hou.ton Bar Aaeoclltion, 1968-69. and Chatnn.n, ABA section of Antltru.t Law, 1970·71. HI. tiM with the Unlvenlty of Texa, are many, and he received the "Out'tanding Alum· nus Award" from the Law SChool In 1969. He hes Ml"Ved In like f.shion many civic and religious organization •. Mr....ff.... will spook ot tho Friday ~, prooIdod 0... by P _ t F,oncoo HoItzendorft of the Ant..".. Aleoclatkx1 of Wornen u~.
It I. p.rticutarly flttlng thet Governor OIYId pryor be tho keynoto spooko, ot tho opening luncheon on Thurad.y. He has been an Antan... S.r Aaeoclatlon m.,,· ber, .Ince hi• .ctml••1on to the Arkan••s Bar In 1964. HI. politic" career atretchea from the Atkan.a. House of RepresentaII..., 1961·1966, th<ough tho U,S. House 01 R"",_otlv.., 1967·1970, to tho Arkan... Govemo"hip In 1975. HI. honors Include national recognition a. 1971 "M.... of the Vear" by the National CoW'!cll of senior Cltlz.... and I . President of the 90th Club. organization of framen repr...,.atlv" In the 90th Con;r....
When we .ay that the Committee "spared no expen.." In bringing In "good" entertelrvnent, both .,.. .....derstatement•. The Annuli S.... quet on Thursday will feature "An Evening With Shear... EJeba.h" Ihe natlonelly recognlz.ct humorl.t. HeddI Hopper has writt.... "Shewen EJebash ....ertatned - we w. . enchanted." The Common Good will again furnish "uncommonly good" mu'ic for the Annual Dance. The Lawyen' Own Sand will ..-peat ttl "ama,h .ucceu" of lut year'. Ann...' MooIlng ot tho "MoIllo" Porty.
April 1975/Arkansas Lawye'/61
Lawyers on the Governor's Staff: Are They Needed? by Robert L. Brown
One of the most significant revelations to come out of the Watergate affair was the sizable personal staff of Mr. Nixon and the vast amount of power that was centralized in the hands of a few of his aides. Many of these aides were attorneys. Yel, few of them performed traditional legal services while working under the Nixon aegis. For the most part, they were policy makers, political advisors, and surrogates for the former President himself, answering his correspondence, representing him at conferences, and conveying his directives to Cabinet members and elements of the bureaucracy. After John Erlichman abandoned his post as Legal Counsel to the President in favor of Chief Advisor on Domestic Affairs, John Dean assumed the role of Legal Counsel and described his responsibilities in the pre-Watergate
days as amounting to little more than shuffling papers and acting as a conduit for the top echelon of the Nixon staff. If there was actual legal work to be done, that is, legal representation of Mr. Nixon in his official capacity, the Justice Department took care of it, not the lawyers on his Administrative staff. The whole Watergate affair raises many troublesome questions relative to the role of lawyers in government. Hundreds of articles and thousands of words have been written about the ethical behavior of the Nixon attorney-aides, but a more basic question still is whether lawyers are essential commodities on a
government executive's personal staff either on the national or state level, and if not, is legal training even desirable for executive staff personrlel?
Bob Brown ;s now serving as Legislative Assistant to Arkansas Senator Dale Bumpers. Bob and his wife Charlotte are making their home in Washington, D.C. Bob served as Legal Aide to then Governor Bumpers from June 1972 to January 1975. He previously had been in private practice and was Deputy Prosecuting Attorney tor Arkansas' Sixth Judicial District. He holds a BA (Magna Cum Laude) from the University of the South; a MA from Columbie University; and his LLB. from the University of Virginia Law School. His academic awards include Phi Beta Keppa, Woodrow Wilson Fellowship, Rhodes Scholar Finalist and Law School scholarship. He is a member of numerous professional, civic and religious organizations.
62/April 1975/Arkansas Lawyer
I have already alluded to the Justice Department at the federal level. In addition, each state has its own Attorney General's office with a stable of attorneys whose statutory mandate is to represent the state, its constitutional officers including the Governor, and its agencies as well. Since the Attorney General's office performs official legal services for the State Chief Executive, this would appear to obviate the necessity for the Governor's having his own legal counsel. All of this suggests that a Statehouse Executive could better utilize experienced administrators on his personal staff who are adept at systematizing the immense paper work that is synonymous with government and speaking the bureaucratic argot rather than attorneys who well may be frustrated by
government service and ill-suited by training for it. However, before chiseling this conclusion in stone, a discussion of legal activity in the Arkansas Executive's office for the past two and one half years may help to offer some insight into what a lawyer on a Governor's staff does and whether such positions are dispensable or not.
A, Attorney General's Office The Arkansas Attorney General is an independent state officer under the Constitution, and as such is separate from the Governor's administrative control and authority. Unlike the United States Attorney General, he is not a political appointee but is elected by the people and owes his direct allegiance only to his constituiency. He does not sit on the Governor's cabinet as a department head; nor is he subject to the Governor's policy directives or work assignments. Nevertheless, he is inexorably tied to the executive branch as its attorney. A legai aide on the Governor's staff performs the vital fu nction of liaision with the Attorney General's office and thereby facilitates the rapport that must be established and maintained between the two offices. Open lines of communication are desirable from each officer's point of view. For example, the Governor needs to be kept abreast of all developments affecting litigation where he is sued in his official capacity or the State of Arkansas or a state agency, board, or commission is party to the lawsuit. Since the Governor is the Chief Executive of the State and keeper of its Great Seal, he embodies the "State of Arkansas" more than any other individual and must give his consent and endorsement to all litigation on its behalf. In some instances the Governor may precipitate the lawsuit. Converseiy, from time to time, the Attorney General may feel it is in the state's best interest to fiie suit on certain matters such as the release of impounded federal funds for a particular state agency. In either case, it must be a joint effort with both hands knowing what the other is doing. The importance of the relationship is further evidenced by the fact that at times the Governor or his legal
aide may need an official Attorney General's opinion. Unlike the ordinary attorney-client relationship a formal opinion from the Attorney General will dispose of the issue, absent a judicial determination of the question. Requests to him may range from the procedure for calling a special election for the purpose of filling a vacancy in some public office, to the Governor's appointment and dismissal powers, to the Governor's various duties and obligations as Chairman of the State Board of Eiection Commissioners, or as Chairman of the State Board of Finance. Formal opinion requests and lawsuits are avoided if at all possible because of the prodigious burden they place on the Attorney General, who must answer legal questions not only for state officials but for local government officiais as well. To assure that requests for opinIons and litigation are minimized, recent Governors have determined that all requests for formal attorney general opinions from state agencies or department heads and major litigation that is contemplated by the same should first pass through the Governor's office for review and comment. This is done to screen frivilous disputes and questions that could better be answered informally, but more importantly to keep the Governor apprised of legal maneuverings within the executive branch. The Governor needs to know in advance of significant lawsuits on a policy matter which may have far reaching implications, especially if the fray could be avoided by his intervention. But the Attorney General's representation is of a more formal variety. He does not lend his staff to the Governor to assist in preparing Administration Bills for legislative sessions, or review clemency matters for the Governor, or advise the Governor on the numerous legal questions that are continually sprouting in his office, or answer the Governor's personal correspondence that may have iegal overtones. These matters are left to the Governor and his staff for handling. The obvious conclusion is that the Attorney General does not and cannot satisfy all of the Governor's iegal needs. The reason for this is the separateness of
the two offices which has its legal origin in the State Constitution, and the fact that they are two distinct offices with different responsibilities to the people of the State.
B, Extradition and Executive Clemency. The Federal Constitution mandates that the Executive of an asylum state relinquish custody of any person charged "with treason, felony, or other crime" on demand of the Executive Authority having jurisdiction of the crime. In 1935, Arkansas adopted the Uniform Criminal Extradition Act, thus simplying and standardizing its extradition procedure and joined the vast majority of states which now have the Uniform Act on their books. Surprisingly, the Uniform Act does not expressly require the Executive having custody of a fugitive to conduct a hearing prior to issuing a warrant for the return of the fugitive to the demanding state. What is required is that the asylum state Executive be satisfied: 1) the arrested fugitive is the person named in the papers from the demanding state; 2) the fugitive was in the demanding state at the time of the alleged offense and since has fled the state; 3) an indictment, information or affidavit before a magistrate is pending in the demanding state, a copy of which accompanies the request for extradition; 4) the request for extradition includes an affidavit supporting the pending charge and a copy of the arrest warrant.
It could be argued that the Uniform Act requires a hearing for the determination of these fact questions by implication, but most states, especially those with heavy fugitive traffic, eschew extradition hearings because they are burdensome and time-consuming and prefer to make their determinations soleiy on the basis of documents received from the demanding state. In recent years, the Arkansas Governor's office has conducted extradition hearings on every out-of-state demand as a matter of strict policy, which gives the fugitive a chance to be heard and often protects the state from making costly errors at Continued on page 64-
April 1975/Arkansas Lawyer/53
Lawyer" Continued from page 63
the expense of individual liberty. Traditionally, the Governor's staff attorney has conducted these hearings with the assistance of the State Attorney General's office and then made recommendations to the Governor on whether extradition warrants should issue or not. Oftentimes, these hearings resolve the matter and satisfy the ends of justice without uprooting a fugitive who may have become a useful and productive citizen in Arkansas. This is especially true in child abandonment cases where the matter may be resolved by civil process under the Uniform Reciprocal Support Act, thereby avoiding the harsh remedy of criminal extradition. Indeed, the Uniform Reciprocal Support Act contemplates exhaustion of civil remedies by its terms before crim inal extradition, although the ultimate decision of whether this remedy will be effective or not as a means of providing support for the out-ofstate family is left to the discretion of the state executive having jurisdiction of the fugitive-father. An extradition hearing can in some instances invoke the drama of a criminal proceeding. In February of 1973, the state of Colorado requested the retu rn of an Arkansas citizen to stand triai on various counts of burglary and rape perpetrated against a well-known family in the Denver area. An extradition hearing was duly conducted, and approximately twenty witnesses appeared on behalf of the fugitive to testify that he was in Arkansas at the time of the offenses. Since the FBI as well as the Colorado investigators had some evidence suggesting the contrary, the Arkansas Governor's office was in a quandry about whether extradition was appropriate or not. Finally, a line-up was recommended by the Colorado authorities and held at the Little Rock Police Department. At this proceeding, the Colorado victims appeared and failed to identify the accused Arkansas resident, although they were near unanimous in their selection of a Little Rock police detective. The request for extradition was subsequently withdrawn. Extradition matters in Arkansas are not overiy burdensome in terms 64/April 1975/Arkansas Lawyer
of the number of cases or the man hours spent on each case. Much of the work is clerical and only requires the transferral of necessary documentation between the two states involved. During 1973 and the first 10 months of 1974, the Arkansas Governor's Office made 221 requests to other states for the return of fugitives. Similarly, Arkansas received 119 requests from Govemors of sister states for the return of individuals to their jurisdictions. (With Arkansas making almost twice the number of requests for the return of fugitives than it receives, it could not be considered a haven for fugitive traffic from other states). Of those 119 foreign requests, the Arkansas Governor, after his staff attorney conducted 108 extradition hearings with the fugitive present, honored 41 of them by issuing his warrant for the return of the fugitive. The other requests were either denied, disposed of without extradition by mutual agreement between the states, or heid in abeyance until some future event transpired. The extradition process and particularly the extradition hearing are ciearly Judicial in nature and require legal technique for disposition. The State Attorney General's office can be of great assistance in this regard. but the ultimate statutory responsibility for criminal transferals rests in the State Executive, and he in turn must rely heavily on his administrative staff for clerical support as well as for general coordination of the program. Applications for Executive Clemency likewise require legal skills and judicial-like decisions for resolution. The Arkansas Constitution empowers the governor to "grant reprieves, commutations of sentence, and pardons after convictions," which enables him (1) to free an inmate immediately or commute the sentence to make the inmate eligible for parole; and (2) to restore the rights of an ex-offender previously released from prison. The Governor's clemency power is limited, however, by "rules and regUlations as shall be prescribed by law," which subjects the power to statutory regUlation by the Arkansas General Assembly. Pursuant to this enabling authority, the General Assembly establish-
ed a State Board of Pardons and Paroles in 1969 and imbued that body with the power and the duty to review all applications and make recommendations to the Governor before the Executive could consider the case. Interpretations differ on whether this means a favorable recommendation must emanate from the Board as a prerequisite to Executive review or whether any recommendation, favorable or not, will suffice. The question, however, has been rendered moot by the fact that recent Governors have refused to examine clemency applications of any nature unless accompanied by affirmative approval from a majority of the Board's membership. Evaluation of these applications by a five member board is a tremendous benefit to the Governor, as are recommendations from law enforcement officials and private citizens, a synopsis of the inmates' prison record, and psychological testing. Even with these aids, the responsibility is still awesome and weighs heavily on the Executive, not only because clemency matters deal with human liberty and in some cases with life itself, but because in many instances the crimes involved are the most heinous, and carry with them life imprisonment. Without clemency a life termer will not otherwise be eligibie for parole. In 1973 and 1974 the Arkansas Governor considered 26 applications for executive clemency from incarcerated inmates which had come from the State Board of Pardons and Paroles with favorable recommendations and granted 5 of them. In that same time period he also reviewed 20 Board-recommended applications for a restoration of rights from released ex-offenders and acceded to 14 of them. For this period at least, removal of a felony disability from an ex-offender's record met with more favor from
LETTERHEADS
the Chief Executive than did inmate applications for a reduction in sentence. In this context it is important to note that every case received prior review and examination by an attorney in the Governor's office before submission to the Governor for final disposition.
C. Legislation The Arkansas Governor like a company executive is primarily an administrator, but rather than overseeing a profit-making concern, he is charged with the public responsibility of administering a cumbersome and at times an unwieldy government bureaucracy. This by itself if a full-time job, even though the 1971 Reorganization Act diminished the onus somewhat by placing the 65 state agencies that previously reported directly to the Governor under 13 department heads who now form the Governor's Cabinet. Yet, other aspects of the office, apart from routine administration vie for the Governor's attention and require an inordinate amount of his time and energy, and these include ceremonial and political functions and, most importantly, work with the General Assembly. At no other time is the Executive's mettle and leadership tested so thoroughly or the opportunity presented to accomplish so much. Legislation gives the Executive the chance to imprint his ideas indelibly on state government, to correct certain wrongs, and to institute those programs which are closest to his heart. Traditionally. the respective rules committees of each house of the legislature have afforded the Governor the honor of considering Administration Bills, which are simply bills the Governor labels as such by letters to the Speaker of the House and the President of the Senate, as soon as is practicable after their introduction. This gives the Executive's endorsed legislation a distinct advantage at all stages of the legislative session, but particularly towards the end when the log jam of bills is gargantuan, and the administration label may mean the differ路 ence between action on the bill or not. What comprises the administration package becomes critically im-
portant during the months immediately preceding a regular session, when there is a concerted effort by agency heads, professional groups, special business and labor interests, the general public and even legislators themselves to have the administration "tag" attached to their legislation. Priority consideration is not the sale reason for seeking this label. It further connotes that the Governor backs the bill and will sign it into law, should it pass both houses. Moreover, the Governor's legislative representatives and assistants in both houses will watch the progress of the bill and attempt to move it rapidly through legislative channels. Preparation of the administrative package is a massive undertaking, both in terms of the myriad policy decisions the Governor must make and the sheer clerical achievement of preparing the bills. As hundreds of drafts swamp the Governor's office in the months before the January session, they are screened and discussed by the Governor and his legislative aides. Oftentimes, legal research is required to ascertain how the bill would affect existing law. Assuming the bill is accepted as part of the package, its language might require revision or its form may need refurbishing. Or else, the legislative assistants may find they do not have the lUxury of a draft to assist them and be forced to bring birth to a legislative idea. Whatever the case, analy1ical ability and legal draftsmanship are called for. In 1973, the Governor designated 90 bills as administration bills apart from appropriation measures in the Regular Session of the Arkansas General Assembly. Of this package, 62 bills passed in some form and ultimately were signed into law. Staff attorneys and legislative assistants earn their salt during legislative sessions in a variety of roles. (1) as legislative draftsmen; (2) as lobbyists for the Governor's package; (3) as conduits between members of the General Assembly and the Governor; (4) as advisors to the Governor on all legislation; (5) as legal counsel to the Governor on points of legislative law; and (6) as legislative correspondents for the Governor to the public at large.
Less than half the membership of either house of the Arkansas Legislature are attorneys by profession. Similarly, legal training is not an absolute sine qua non for assuming the role of a Governor's legislative assistant. But legal training is a definite asset for this position which corroborates the simple maxim that one who knows the law is necessarily more adept at making it. D. Legal Correspondence A question of perennial concern is where do the people turn when they are abused by government or fail to receive satisfactory service from a particular public agency. What is their recourse against eminent domain, cutbacks in welfare or social security benefits, police brutality, illegal confinements, and burdensome fees and taxation, when traditional government processes fail them? Most often, their remedy lies in the Regulatory Agencies or the courts, but a shocking number of people are either unaware of this, or simply cannot afford legal counsel, or just plain disagree with an administrative or judicial decision already rendered. And these people turn to their elected Governor for help. To date, few state governments have endowed an institution apart from established state agencies and commissions with the power to hear public complaints against government activity, and in effect police them, for fear that this might undermine public agency authority and control. There has been some experimentation with quasi-ombudsman mechan isms, as evidenced by the plethora of state consumer protection agencies which sprung up during the last decade in the wake of renewed interest. Arkansas, as an example, established a Consumer Protection Agency within its Attorney General's Office to hear consumer complaints and seek injunctive relief against defrauding companies and individuals. But by and large the ombudsman concept as an institution to defend the people's interest against government abuse has yet to make real inroads into time-honored government machinery. Continued on page 66
April 1975/Arkansas Lawyer/65
Lawyers, Continued from page 65
The elected Governor, therefore, becomes the court of last resort for many of his constituents and is called upon continually from the time he takes office to resolve their personal problems, answer their questions, and hear their opinions.
The Arkansas Chief Executive receives on the average of 150 pieces of mail a day with 80% of these requests for personal assistance of one type or another. Approximately 20% of these requests for personal assistance have legal ramifications; either problems involving state regulatory agencies, civil disputes, criminal matters, including inmate correspondence from the state penitentiary system and the families of these inmates, or comments regarding some event that is grounded in the law. Highly technical correspondence affecting areas administered by the regulatory agencies is best shunted to their respective staffs for handling, but this avenue is not available for the multitude of requests from civil Iigitants and criminal defendants or inmates who seek legal advice or alternatively want the Governor to reverse a state agency decision or an existing court order by fiat, or for the average constituent who simply wishes to express a point of view. Moreover, these individuals have written a personal letter to their Chief Executive and expect him to respond to it. In most instances, in-depth research is not required for the response; only a basic understanding of the law and the remedies available to the constituent. For civil Iigigants and correspondents who may have run afoul of the law, the simple answer is a brief discussion of the doctrine of separation of powers and the executive's inability to interfere with the judicial process. Having said this, some help and guidance is afforded the writer in the form of reference to the legal principle involved, whether it be "adverse possession" or a rule of evidence, and finally an admonition that he or she should retain legal counsel forthwith for formal and more complete advice on the problem involved. Quite obviously, a delicate balance must be struck between offer66/April 1975/Arkansas Lawyer
ing the constituent assistance in resolving a legal problem on the one hand and overtly practicing law by giving free legal advice on the other. But the importance of this correspondence should not be minimized, for the impact of a letter from the Governor's Office on his constituents is significant, and the costbenefit ratio may be the best in state government. E, Legal Representation The Governor of Arkansas is a legal creation with his functions and duties shaped, delineated, and defined by the law of the state. Accordingly, to keep the Governor on the right legal track and to assure that his formal actions are within the bounds of prescribed activity necessitates constant reference to the State Constitution and to the Arkansas Statutes. One day may require research on the death penalty decision (Furman Y, Georgia) with an eye toward establishing a task force to study the feasibility of reinstating the death penalty, The next may bring review of the Arkansas Freedom of Information Act and the drafting of a memorandum to all Department Heads discussing administration policy in this regard. The Arkansas Secretary of State may need the assistance of the Governor's representative to certify the Presidential electoral vote, or to review state printing contracts for the Governor's eventual approval as required by the Constitution, or to attend bid openings for State Capitol construction and repairs. A fellow 'aide on the Governor's staff may need help on procedures for filling a vacancy in a local public office, or a state agency may want to sell a state-owned building which requires the Governor's participation and approval at every stage of the sale. An Executive Proclamation may be necessary to call a special election to fill a municipal judgeship or a vacancy in a legislative seat or to prohibit corporations delinquent in their franchise tax payments from doing business in the state or to set aside a portion of the Governor's Emergency Fund to finance a state program. Or an executive order may be requ ired to merge state offices or to establish an advisory commission
to the Governor on a worthwhile project. The State Board of Election Commissioners, which the Governor chairs, may need to certify new voting machine models for county selection or to appoint third members for the county boards of election commissioners; or the U.S. Department of Health, Education and Welfare may order the state to develop a new and more expansive plan for the racial integration of colleges and universities; or the executive departments may need a review committee to screen appropriate deferred compensation plans for employee groups; or the State Insurance Commissioner may want to institute a rule requiring life carriers to divu Ige the actual cost of their policies for comparison purposes; or a dispute may arise about whether a company is charging prevailing wage rates for public construction; or special justices may need to be appointed to the State Supreme Court to replace an abstaining justice. F, Conclusion All of these activities require legal attention in varying degrees, If administrators are trained to plan and implement systems, so lawyers are essential for their judgment and common sense and for their ability to give advice, resolve delicate controversies, and generally get things done. It is this quality of judgment that cements the lawyer's place on executive staff rosters and at the same time offers participating attorneys a kaleidoscope of legal experience and a challenge of infinite variety. The conclusion therefore is inescapable that attorneys on Executive Staffs are far from expendable. Indeed, their presence is mandatory to assure smooth and effective executive management. '"',
"
LIWDIY U.S.I. MIYI.
FAll LEGAL INSTITUTE DOWNTOWN MOTOR LODGE
STUDENT UNION BUILDING UNIVERSITY OF ARKANSAS
OCTOBER 30, 31 NOVEMBER 1
FAYETTEVILLE
The 1975 Arkansas vs. Texas game has been moved from Fayetteville to Little Rock to meet National T.V. requirements. The 1975 Arkansas vs. Texas A&M game has been moved to Fayetteville. The Texas A&M game is echeduled for Saturday, November 1, 1975. Accordingly, the 1975 Fall Legal Institute will still be held at Fayetteville, but on October 30, 31, November 1, 1975. The Downtown Motor Lodge will be the Fall Legal Institute's headquarters. The program sessions will be held in the Student Union Building of the University of Arkansas. Kindly make your room reservations now for Thursday, Friday and Saturday, October 30, 31, November 1, 1975 at one of the many new motels in Fayetteville, Springdale, Rogers, and surrounding area. Only a few can be accommodated at the Downtown Motor Lodge.
Arkansas vs. Texas A&M Saturday, November 1, 1975 April 1975/Arkansas Lawyer167
(Editor's Note: We are indebted to the Wyoming Alumnus to, permission to reprint this story on Arkansas Bar Association member J. Wesley Sampier 01 Rogers, Arkansas, from the magazine's November-December 1974 issue; and to the University 01 Wyoming Photo Service tor accompanying photographs.)
" .M
J. Wesley Sampler, BS '28, rode into laramie on a bicycle, Sept. 4, exactly aa he had on
the same date In 1924 when he arrived to register al 8 University student.
The Bicycle Rider . When John Wesley Sam pier came to Laramie to attend the University of Wyoming in September, 1924, he rode a bicycle from his home 63 miles north of Moorcroft on "Lightning Flats" - to Laramie. He rode the same route in September 1974, SO years after he made the first trip. A number of conditions of the two trips were similar and many were very dissimilar. In 1924 Sampier boarded a SOpound single speed "Pathfinder" which had wooden wheels and air filled rubber tires to make the journey from his father's homestead just south of the Wyoming-Montana border. After five and a half days of travelling on unimproved country roads, spending nights at ranches and on the open prairie, Sam pier rolled into Laramie and began registering as a freshman at the University. This time, however, he pedaled a new 10-speed touring bicycle. Travelling light and dressed in a bright red jump suit, he rode into Laramie at 10:45 a.m., Sept. 4. He found some of the same people in town 68/April 1975/Arkansas Lawyer
that he got acquainted with soon after he came SO years ago. One such acquaintance was AI Pence, BA '29, Laramie attorney and member of the UW board of trustees. In his chapter in "Those Good Years," by Ralph McWhinnie, Pence tells about Sam pier's arrival this way: "J. Wesley Sampier conveyed himself, together with his worldly possessions, some 400 miles from Lightning Flats by way of an old model bicyc Ie." This time Sam pier's odometer showed 361 miles when he reached the city limits, and he said, "Alii had to do this time was pedal." His sister, Mrs. Bonnie Ledbetter of Reno, Nev., followed him in a car. took him into towns for lunch, coffee and over-night accommodations and then back to the place where he had left off for a new start the next morning. Another friend Sam pier met in Laramie was Wilmer Stevens, BA '24, retired professor of speech at the University. The two of them had been in the debate club together, and Pence was a debater too.
• • • •
Later in his chapter Pence says of his friendship with Sam pier, "Sampier's life and mine paralleled each other closely and we became lifelong friends. We were team-mates on the debate team. Soon after graduation he moved to Arkansas to become a member of that state's legislature at about the same time I was to serve in Wyoming's lower house. We both remained active in the Reserve, and in 1942, entered the Army for the duration of World War II, both as majors, he in Artillery and I in Infantry." Sam pier too is a practicing attorney in Rogers, Ark., although he did not take his law degree from Wyoming. He has practiced law for over 40 years and said he took an "extended vacation of three weeks" last fall to make his bicycle ride. He is city attorney in Rogers. Sam pier said of his second ride, ''I'd been thinking of the possibility of such a trip for some time and it seemed appropriate to attempt the journey on the SOth anniversary of the first trip. I did it just for fun and
Sampier, an Arkansas attomey. and AI Pence, Laramie attomey and UW Board of Trustees president, renewed ttMNr campus friendship whUe the cyc1llt was on campus .
• • • •
)
Wilson Clough, Sampier's first UW English teacher. was on hand to visit with hi. former pupil. Wilmer Stav..... retired .peech prof8S80r at UW. came by .Ince he and Sampler had been together on the debate leam in lhe ·2O's.
I
. from Lightning Flats
to see if I could. I found it a challenge." The only trouble he noted on the trip was rain between Newcastle and Lusk, but he continued the trek, not letting the cold shower dampen his spirit. Besides the people he found in Laram ie, two other college friends came to the campus to meet him. They were Sigma Chi fraternity brothers, Walt Savage of Casper and Everett Murray of Upton. These men had been members of the Independent Club when they were in school and had lived in the big brick and shingle house at the corner of Tenth and Grand. Most of them later became members of Sigma Chi when it was chartered on the campus. Ernest H. Linford, ex '30, former head of the journalism department, at UW was another member of this group who was on hand to greet Sam pier. And his first English teacher, Wilson Clough. retired UW professor who joined the faculty the year Sam pier started school, also met him on campus. Sampier did not linger in Laramie. He met a few students, looked around at the new buildings on campus, talked to his friends for a short time and loaded his bicycle up on his sister's car and started back for Arkansas.
Men', debate leam of 1925 Included aome of the friends who met Sampier In laramie la.t September. Seated. Herbert Woodman, Coach eonstan., Atfred Pence, WarreU Law. Back row, Robert Rider, Robert Guthrie, Weeley Sempl... and Waldo Cutler.
"', '-
April 1975/Arkansas Lawyer/59
â&#x20AC;˘
Editor's Comment: AEGIS a fealure of the Arkansas Bar Association's is
educational program concerning docket contro/ and other areas of high risk experience in
professional
liability
cases.
SAFEGUARDING YOUR PROFESSIONAL FUTURE
AWhale In Shallow Water Amuses The Shrimp! (Old Chinese Proverb) the problem
An Insured attorney represented the plaintiff Injured In an accIdent In an adjoining state. The attorney brought action In the U.S District Court where he and the plaintiff reSided The defendant filed a motion to dismiss, based on lack of jurisdiction, and the motion was granted. Prior to the court decision and before the attorney was aware of his mistake, the statute of limitations had run. Action in the proper court was barred.
the result
The facts oj the auto aCCident were very favorable to the plaintiff and hiS injuries were substantial. The defendant's automobile was Insured for liability The Insured attorney notified hiS professional liability Insurance carner of hiS mistake and a substantial settlement was paid to the client by the Insurance carner
advice
Be certain of proper jurisdiction If there is any doubt, make sure you take the proper precautions.
70/April 1975/Arkansas Lawyer
Great partnership: Lewis & Clark •••another great partnership: ARKAnSAS BAR ASSOCIATion & RATHER BEYER & HARPER Working together with CNA/insurance to provide you major protection for professiona:business-personal liability and medical expenses. The higher limits of supplemental protection you need in these areas i~ now available.
new PROFeSSionAL LIABILITY PROGRAm • $1,000,000 Professional Business Umbrella • $1,000,000 Personal Umbrella • $25,000 excess medical expense coverage
Want more details? Call or write Arkansas Bar Association Administrator Rather, Beyer & Harper Three Hundred Spring Building Little Rock, Arkansas 72201 (501) 372-4117 April 1975/Arkansas Lawyer!71
In memoriam Heaven and Earth will pass away, but my words will not pass away. -Matthew 24:35
JAMES R. HALE (1913-1974) James R. Hale. of Fayetteville. died August 18. 1974. at the age of 61 years. A native of Washington County. Mr. Hale attended public schools at Prairie Grove. and graduated from the University of Arkansas School of Law in 1939. He had practiced law in Fayetteville since 1945. He served in the American Naval Intelligence Service during World War II. He was a member of the Arkansas Bar Association and Washington County Bar Association. He served as President of the Arkansas Junior Bar and served on various committees of the State Bar Association through the years. He is survived by his wife, Jean Ann (Kimberling) Hale. two sons. John C. Hale of San Antonio, Texas, and J. Joseph Hale, of Houston. Texas, and a daughter. Virginia Hale, of Springdale, Arkansas; three sisters. Mrs. Fannie Glidden of Merced, California, Mrs. Ann Ditullio of Long Beach, California, and Mrs. Ethel Cox. of Booneville, Arkansas; and two brothers. William C. Hale, of Merced. California, and Floyd Hale, of Snelling, California. and two grandchildren. EDWIN LAFAYETTE McHANEY (1910-1974) Edwin Lafayette McHaney. Jr.. aged 64, senior partner In the Little Rock law firm of Owens, McHaney and McHaney, died November 22, 1974. Mr. McHaney was the eldest son of Edgar L McHaney. a former associate Justice of the State Supreme Court, and Mrs. Gail Myers McHaney. He was graduated from the University of Arkansas In 1930 and received his law degree with honors from Harvard Law School in 1933. Admitted to the Arkansas Bar In 1932, he had practiced law at Little Rock continuously except for two years' service in the Army in World War II, initially joining the firm of Owens, Ehrman and McHaney in 1933. Mr. McHaney was elected to the Arkansas House of Representatives in 72/April 1975/Arkansas Lawyer
1935 and served two terms. He had served as chairman of the Executive Committee of the Arkansas Bar Association and was active on various other Bar Associallon committees He also had served on the Bar Rules Committee by appo",tment of the state Supreme Court. He was a member of the American Bar Association, a fellow of the American College of Trial Lawyers. a fellow of the Arkansas Bar Foundation, a member of the Little Rotary Club and a past president of the Country Club of Little Rock. Survivors are his wife, Mrs. Virginia O. McHaney of Little Rock; a daughter, Miss Owen McHaney of Dallas; two brothers, Col. Gailand M. McHaney (Army Ret) of Fort Walton Beach, Florida, and James M. McHaney of Little Rock; and three sisters, Miss Mariam McHaney of Nashville. Tenn.. Mrs. Virg",ia McHaney Thayer of Chicago and Mrs. Betty Ann Bennett of Lonoke. THOMAS CLARK TRIMBLE, JR. (1918-1974) Thomas Clark Trimble, Jr., aged 56, died December 30. 1974 Mr. Tnmble was born at Lonoke. a son of Mrs. Elsie Walls Tnmble of Lonoke and the late Federal Judge Thomas C. Trimble. He received his undergraduate degree from the University of Arkansas at FayetteVille, where he was a member of Kappa Sigma Fraternity. He also was a graduate of the UA School of Law at Fayetteville. In World War II, Mr. Tnmble was an Army Corps C-47 pliot fly",g the "Hump" in the China-Burma-India Theater. Mr. Trimble was a member of the Pulaski County, Arkansas and American Bar Associations. the Country Club of Little Rock. the Little Rock Club and the Board of the ViSiting Nurses ASSOCiation. He was a member of the First United Methodist Church of Little Rock, where he was a trustee and had served as chairman of the Administrative Board and the Finance Commission and was a member of the Faulkner Sunday School Class.
Other survivors are a son, Thomas C. Tnmble, V of Little Rock; a daughter. Mrs. James F. Carpenter of Dallas; a brother. Walls Trimble of Little Rock; three Sisters, Mrs. Elsiejane Tnmble Roy of Fort Smith, Mrs. Earl Verser of Eudora and Mrs. Marshall Measel of Birmingham. Alabama; and a grandchild. WILLIS H. HOLMES (1899-1975) Wi Ills H. Homes. aged 75, died January 11, 1975. Mr. Holmes was born at Nashville and was graduated from Ashdown High School. He was graduated magna cum laude from Hendrix College in 1921, and served as supenntendent of schools at Dermott from 1921 to 1923. In 1923, he entered the University of Chicago Law School and was graduated in 1925 with a doctor of laws deg ree. In 1926, he joined the firm of Robinson, House and Moses at Little Rock. and in 1933 he became a partner in the firm. Mr. Holmes remained active in the affairs of Hendrix College, and served on the college's Board of Trustees and. from 1968 to 1974, as chairman of its Executive Committee. In 1971, he received the college's Distinguished Alumnus Award. He was a mem ber of the Pu lask I Cou nty, Arkansas, and Amencan Bar Associations. and was a patron and member of the Hall of Fellows of the Arkansas Bar Foundation. He was a member of the Country Club of Little Rock and the Little Rock Club. He was a member of Second Presbyterian Church, and had served as an Eider in the Church. Survivors are his wife. Mrs. Frances Rose Holmes. and a Sister, Mrs. J. Allen Gannaway of Arkadelphia.
BEN M. McCRAY (1911-1975) Municipal Judge Ben M. McCray. aged 73. of Benton, died January 18,
1975. A lawyer. he was serving his second term as municipal judge. He was the local charter president and
a past district governor of the Lions Club and had served on the first Benton Planning Commission and as city attorney. He was a member of First United Methodist Church. where he taught the men's Bible Class. and the Saline County and Arkansas Bar Associations. He was a Mason, a charter member of Trace Creek Country Club and a member of the DeMolay Advisory Council. Survivors include his wife, Mrs. Sylvia Carlington McCray; a son. Robert McCray of Crossett; a daughter. Mrs. Donna McCormick of Benton; two sisters. Mrs. Uldine McDanie. and Mrs. L. C. Highfill. both of Benton. and three grandchi Idren.
CARROLL C. CANNON (1909-1975) Carroll C. Cannon. aged 65. of Forrest City. who had practiced law in that city since 1946, died January 18. 1975. He was a member of the Forrest City Chamber of Commerce. the Society of Former FBI Agents. the American Rose Society. the St. Francis County. Arkansas and American Bar Associations,
and the Arkansas Land Title Association. He was a member of the Parish Council of St. Francis of Assisi Catholic Church. Survivors include his wife, Mrs. Helen Harrelson Cannon; a son, Carroll C. Cannon. Jr.â&#x20AC;˘ of Indiana; two daughters. Miss Kathlynn and Miss Helen Cannon. both of Forrest City; a sister, Miss Marguerite Cannon of St. Louis. and a grandchild.
BON McCOURTNEY (1896-1975) Bon McCourtney. aged 78. a Jonesboro lawyer. died January 29. 1975. A native of Randolph County. Mr. McCourtney attended the Kansas City School of Law. He first practiced at Pocahontas and opened a law office in Jonesboro in 1932. A specialist in criminal law, Mr. McCourtney participated in many of the major criminal trials in Northeast Arkansas. He was a member of the Board of Trustees of the Cathedral Baptist Church. He was a member of the Craighead County and Arkansas Bar Associations. the Association of Trial Lawyers of America. and the Tri-County Peace Officers Association. Survivors include his wife; five daughters, Mrs. Carolyn Simmons and Mrs.
Kathy Scott. both of Jonesboro. Mrs. Bonnie Lee BrQck of MISSOUri, Mrs. Dannie Lebow and Mrs. Judy Leek. both of Texas; a brother. Ralph Bell of Jonesboro: a sister, Mrs. Dollie Cox of Texas, and eight grandchildren.
Maryland and Ted Yates of Ozark; two daughters. Miss Mary Pat and Miss Geniece Yates. both of Ozark; his mother. Mrs. Minnie Agee Yates of Ozark; a brother. Tommy Yates of Ozark. and two sisters. Mrs. Billie Adams of Texas and Mrs. Hazei Adcock of Ozark.
JACK YATES (1918-1975) Jack Yates. aged 56. Ozark city attorney and a former prosecuting attorney and member of both houses of the Arkansas General Assembly, died February 7. 1975. A native of Ozark, he was a graduate of the University of Arkansas and its law SChool. and had been in practice since 1942. Mr. Yates represented Franklin County in the State House of Representatives from 1947 through 1950 and 1955 through 1956. and was a member of the State Senate from 1959 through 1962. He was prosecuting attorney of the 15th Judicial District from 1951 through 1954 and 1963 through 1966. He was a member of the Ozark City Planning Commission, a trustee of Turner Memoriai Hospital at Ozark. a member and former director of the Ozark Chamber of Commerce, and a member of the Ozark Rotary Club. A veteran of World War II. he was a member of the American Legion and the Veterans of Foreign Wars. He was a former member of the Board of Stewards at First United Methodist Church in Ozark. and taught an adult Sunday School class for 20 years. He was a 32nd degree Mason. Survivors include his wife, Mrs. Mary Heady Yates; two sons. Jack B. Yates of
EDWARD LeMOYNE CULLUM (1917-1975) Edward LeMoyne Cullum. aged 57. died at Little Rock on February 16. 1975. He was born at Hazen, Arkansas. He was a Navy veteran of World War II. A certified public accountant and lawyer, he received his CPA Certificate in 1943. and was admitted to the Arkansas Bar in 1949. He was a graduate of the University of Arkansas School of Law. He was a member of the American Institute of Certified Public Accountants, served on the Board and was Past President of the Arkansas Society of Certified Public Accountants. He was a member of the Pulaski County. Arkansas and American Bar Associations. He was a Patron and Fellow of the Arkansas Bar Foundation. He was a member of the Immanuel Baptist Church and Past President of the C. Hamilton Moses Bible Class; and of the Pulaski Heights Masonic Lodge 673. the Arkansas Consistory and Scimitar Shrine Temple. Survivors are his wife, Mrs. Cora Jane Finnegan CUllum; two sons. Edward L. Cullum. Jr. and John Patrick Cullum; his parents. Mr. and Mrs. O. L. Cullum and two grandchildren. all of little Rock. ./.
MEMORIAL GIFTS Hit is more blessed to give than to receive"-However, a member profits both ways with a memorial gift to the Arkansas Bar Foundation. One's gift is a beautiful way of honoring a former colleague. The family must be most appreciative of such remembrance. The gift is noted in the Foundation's Memorial Book and, of course, is tax deductible. Memorial gifts may be sent to the Arkansas Bar Center. The memorial card (below) of the Arkansas Bar Foundation is formal and is promptly delivered upon receipt of the memorial gift. WE ACKNOWLEDGE WITH GRATEFUL APPRECIATION THE RECEIPT OF A GENEROUS MEMORIAL GIFT FROM
OF
IN MEMORV OF THE LATE
~I â&#x20AC;˘ et~"'anda4
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LITTLE ROCK. ARKANSAS
April 1975/Arkansas Lawyerf73
l\ecent Jitterature Edited by Jas. Wm. Spears, Professor of Law, and David R. Hendrick, Jr., Associate Professor of Law, University of Arkansas School of Law - Uttle Rock Division.
We remind the reader of two points made in the introduction of this feature in the January, 1975, issue of The Arkansas Lawyer: Our citation form differs from those of the Index to Legal Periodicals and A Uniform System of Citation. We cite volume number name (date) and pages: for example. V17 N4 Standard L. R. (July 1974) at pp. 697-722. Due to the great volume of published work we cannot review each article, therefore, citation of an article is not a recommendation of its quality. but only its apparent value. - The Editors Business Associations • Student note - "Relief to Oppressed Minorities in Close Corporations: Partnership Percepts and Related Considerations." V1974 N3 Arizona 51. L. J. (1974) at pp. 409-429. Civil Rights - Title VII - Pensions • Expanding on an earlier report to the Commission on Women in Higher Edu· cation of the American Council on Education, Professor Merton C. Bernstein of The Ohio State University. and Lois G. Williams, a law clerk for the Fifth Circuit Court of Appeals, argue that Title VII of the 1984 Civil Rights Act forbids certain sex-classification practices of pension underwriters. "Title VII and the Problem of Sex Classifications in Pension Programs." V74 N7 Columbia L. R. (Nov. 1974) at pp. 1203-1230. (see also Labor Law) Class Actions • "Class Actions: The Legal Odyssey of Eisen Y, Carlisle and Jacquelin" by Mayo L. Coiner, Professor of Law, Memphis State University Law SchooL V5 N1 Memphis St. Unlv. L. R. (Fall 1974) at pp. 19-28. • A lengthy student comment - "Federal and State Class Actions: Developments and Opportunities" contains sig· nificant local law, but much of broader interest. V46 N1 Mississippi L. J. (Winter 1975) at pp. 39-83. 74/April 1975/Arkansas Lawyer
• See a symposium issue on class actions - V12 N1 San Diego L. R. (Dec. 1974) at pp. 1-249. Many articles of interest are to be found. with a minimum of local law. Commercial Law • "'Abstract Rights versus Paper Rights Under Article 9 of the Uniform Commercial Code" by Robert Charles Clark, an Assistant Professor of Law at Yale University. V84 N3 Yale L. J. (Jan. 1975) at pp. 445-479. Conflict of Laws - Criminal Law • Dr. Robert A. Leflar observes that little attention is paid to conflict problems of criminal law in the standard works on Conflicts. He fills the gap in his article"Conflict of Laws: Choice of Law in Criminal Cases." V25 N1 Case Western Reserve L. R. (Fall 1974) at pp. 44-65. Constitutional Law Debtor and Creditor First. Fuentes created quite a stir. Mitchell v. Grant stirs in the opposite direction. We cite several recent treatments on due process developments in debtor and creditor relations: • "Fuentes Repossessed" by William Frank Newton, an Assistant Professor of Law, and Durvvard E. Timmons, a student. both at Baylor University Law SchooL V26 N4 Baylor L. R. (Fall 1974) at pp. 469-499. • "Changing Concepts of Consumer Due Process in the Supreme Court The New Conservative Majority Bids Farewell to Fuentes" is a student note in V60 N2 Iowa L. R. (Dec. 1974) at pp. 262298. • Writing before the decision in Mitchell, Professer David E. seidelson of George Washington University consid· ers "5niadach, Fuentes, Subchapter II and Foreign Attachment." V13 N1 Duquesne L. R. (Fall 1974) at pp. 1-35. (A last·minute, lengthy footnote digests Mit· chell. Constitutional Law - Criminal Law One on Prison Litigation:
• "Recent Developments in Prison Litigation: Procedural Issues and Remedies" by Bruce Zagaris of the Idaho and Oregon Bars. V14 N4 Santa Clara Lawyer (Summer 1974) at pp. 810-838. Four on Search and seizure: • Washington, D. C., practitioner John M. Bray writes about "Evidence of Prior Uncharged Offenses and the Growth of Constitutional Restrictions" in V28 N3 Univ. 01 Miami L. R. (Spring 1974) at pp. 489-523. • Student note - "Criminal Law: The Inventory Search After an Arrest for a Minor Traffic Violation." V27 N4 Oklahoma L. R. (Fall 1974) at pp. 693-699. • Another branch of the "poisonous tree" is examined in a student note entitled "Miranda Without Warning: Deriva· tive Evidence as Forbidden Fruit." V41 N2 Brooklyn L. R. (Fall 1974) at pp. 325348. • Student note "Warrantless Searches Under Anti.Hijacking Program." V26 N4 Baylor L. R. (Fall 1974) at pp. 605-615. Constitutional Law First Amendment - Privacy • A symposium issue of eight articles covers the field of the "First Amendment and The Media." V26 N3 Hastings L. J. (Jan. 1975) at pp. 631-821. Gertz y. Welch, the most recent significant pronouncement of the United States Supreme Court on the law of libel, is discussed in a review of post Times v. Sullivan decisions. Other topics included are commercial speech, the Fairness Doctrine, and the "developing 'qualified privilege' for newsmen." Individual cita· tions are omitted here because of space limitations. • "The Threads of Privacy: The Judicial Evolution of a 'Right to Privacy' and Current Legislative Trends" is contributed by the Han. Steven D. Symms, a United States Congressman from Idaho (a non-lawyer), and Paula M. Hawks, a senior student at Georgetown University Law Center. V11 N1 Idaho L. R. (Fall 1974) at pp. 11-27.
Environmental Law • Litigation over the environment is no stranger to Arkansas, nor to the Press. A student note on a much pUblicized federal case from West Virginia is entitled "Environmental Law: Izaak Walton League v. Butz: Judicial Abolition of Clearcutting." V27 N4 Oklahoma L. R. (Fall 1974) at pp. 700-704. Labor Law - Public Employment • Union security agreements and public employment is a much publicized question in Arkansas as we go to press. Thus we include: "Union Security Agreements in Public Employment"· by Patricia N. Blair. Assistant Dean and Associate Professor of Law at Wayne State University Law School. VfIJ N2 Cornell L. R. (Jan. 1975) at pp. 183-230. • "The Inevitable Interplay of Title VII and the National Labor Relations Act: a New Role for the NLRB" is a comment in V123 N1 Univ. of Pennsylvania L. R. (Nov. 1974) at pp. 158-186. • An Air Force JAG officer, Richard T. Dawson. explains "Why a Decision by the NLRB Under 8(b) (4) Should Be Determinative on the Issue of Uability in a Subsequent Section 303 Damage Suit" in V27 N4 Oklahoma L. R. (Fall 1974) at pp. 660-676. • Note on recent developments "NLRB v. Magnavox: The Death Knell for Union Waivers of Employee Rights To Distribute Literature." V60 N6 Virginia L. R. (Oct. 1974) at pp. 10731085. • "Picket Une Observance as a Protected Concerted Activity" by Professor Thomas R. Haggard of Rutgers-Camden Law School appears in V53 N1 North Carolina L. R. (Nov. 1974) at pp. 43-109. Legal Ethics • Noted Dallas attorney and Adjunct Professor at the Law School of Southern Methodist University, Paul Carrington. writes of "The Ethical Crises of American Lawyers" in V36 N1 Univ. of Pittsburgh L. R. (Fall 1974) at pp. 35-54. • Pennsylvania practitioner Frederick D. Lipman writes on "The SEC's Reluctant Police Force: A New Role for Lawyers" in V49 N4 New York Univ. L. R. (Oct. 1974) at pp. 437-477. (see also Securities - Blue Sky) Property - Trusts and Estates - Perpetuities • An active authority in the property field. Professor Olin L. Browder. Jr" of the University of Michigan Law School. thoroughly discusses "Trusts and the Doctrine of Estates." V72 N8 Michigan L. R. (Aug. 1974) at pp. 1509-1576. • University of Chicago's John H. Langbein suggests that the courts relax compliance standards surrounding the wills statutes. When a proposal such as
this one gets a hearing in a highly prestigious journal. it may wetl portend the shape of things to come. The professor writes on "Substantial Compliance with the Wills Act." V88 N3 Harvard L. R. (Jan. 1975) at pp. 489-531. • Been wrestling with the Devil? A law student claims to have fought and won in - "Understanding the Measuring Ufe in the Rule Against Perpetuities," V1974 N2 Washington Univ. L. Q. (1974) at pp. 265-295. • Professor Alice A. Soled wonders whether the age.-of-maJority reduction statutes will alter the permissible period under the Rule Against Perpetuities, Although she excludes our jurisdiction by the terms of her hypothesis, in pursuing this query. Professor Soled sheds more light on the workings of the Rule. See "Ellect of Reduction of the Age of MaJority on the Permissible Period of the Rule Against Perpetuities" in V34 N2 Maryland L. R. (1974) at pp. 245-285. Securities - Blue Sky • A current television commercial claims that when a certain stock brokerage firm speaks. people listen. Whether that advertisement is accurate, the viewer must judge. But it is undeniably true that when a broker speaks his words can bring him woe, depending on the tip and the tippee. A student researches the matter in - "Conflicting Duties of Brokerage Firms." V88 N2 Harvard L. R. (Dec. 1974) at pp. 396-422. • "The Expanding Requirement for Registration as 'Broker-Dealer' under the Securities Exchange Act of 1934" by Denis T. Rice. a San Francisco lawyer. appears in V50 N2 Notre Dame Lawyer (Dec. 1974) at pp. 201-217. • New York attorney J. Michael Gottesman writes of "Brokers' Derivative Liability: Does Supervision Make Any Difference?" V41 N2 Brooklyn L. R. (Fall 1974) at pp. 181-207. • "Registration of Stock Option Plans Under the Securities Act of 1933" by Joseph J, Ziino. an attorney practicing in Milwaukee. Wisconsin, is published in V58 Nl MarqueUe L. R. (1975) at pp. 2754. • Lengthy student comment - "SEC Rule 147 - Distilling Substance From the Spirit of the Intrastate Exemption," V79 Nl Dickinson L. R. (Fall 1974)at pp. 18-50. • Finally under this heading - "Termination of SEC Receiverships in the Federal Courts" by Thomas J. Schwarz. who practices in New York, V43 N2 Fordham L. R. (Nov. 1974) at pp. 163-196.
Cody, Assistant Professor of Law. St. John's University School of Law. V58 N1 MarqueUe L. R. (1975) at pp. 1-26. • Along with the soapbox, some worthwhile gleening may be had in "Response of the IRS to the Freedom of information Act: An Uphill Battle for Disclosure," This student note appears in V1974 N3 Arizona State L. J. (1974) at pp. 431-455. Torts - Personal Injury Products Liability • The editors of the Arizona State L. J. put it well when they say. "Professor Leon Green draws on his many decades as a practitioner. teacher, and patriarch of tort law to review the key factors ... " in "The Negligence Action." V1974 N3 Arizona State L. J. (1974) at pp. 369-385. • Professor Dix W. Noel of the University of Tennessee Law School leads a symposium issue devoted to products liability with his article - "Manufacturer's Negligence of Design or Directions for Use of a Product." V42 N1 Tennessee L. R. (Fall 1974) at pp. 11-83. NOTE: an earlier version of this article appeared in 71 Yale Law Journal 816 (1962). Many other articles complete the symposium. Trade RegUlation - Antitrust • "A Re-Examination of the Boycott Per Se Rule in Antitrust Law" is a student comment in V48 N1 Temple L. Q. (Fall 1974) at pp. 126-149. • "Three Theories of Potential Competition Under Section 7 of the Clayton Act: Reaching the Conglomerate Merger" by Robert H. Swennes II. of the North Carolina Bar. V49 Nl Tulane L. R. (Nov. 1974) at pp. 139-165. Zoning - Land Use Controls • Student note - "Municipal Corporations: Sign Control Through Municipal Zoning Ordinances." V27 N4 Oklahoma L. R. (Fall 1974) at pp. 735-745. • Student note - "The Right to Travel and Exclusionary Zoning." V26 N3 Hastings L. J. (Jan. 1975) at pp. 849-874.
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ARKANSAS BAR FOUNDATION BICENTENNIAL PROJECT APPROVED The Arkansas American Revolution Bicentennial Celebration Committee has given approval in the amount of $2000 for the update of the film. Arkansas Ju.lice: The First Two Hundred Years. The application for the grant stated: "Arkanaas Ju.tice: The First Two Hundred Years is a valuable TV film. which was created in 1973. The credit for the concept and development of this 50 minute TV film must be given to Cranford-Johnson·Hunt & Associates, Inc., a Little Rock Public Relations firm, and KATV-Channel 7-Little Rock. The film was financed by the First National Bank of Little Rock. Many of Arkansas' leading attorneys participated in making the film - includ· ing Governor Dale Bumpers. Governor Bumpers has written. 'I have your recent letter requesting my support for the Bar Association project to show the film Arkan.as Justice: The First Two Hundred Yesrs as part of the Bicentennial Celebration. Of course. I'm familiar with thiS fine production and was glad to participate in making it. ····This is an excellent idea, and I compliment you and the Bar Association for thinking of it. The showing of this film would not only be educational but would comport with the spirit behind the Bicentennial Celebra· tion. Thanks for drawing my attention to thiS: The proposed project IS to convert the TV film to 16mrn color film; and, In dOing so, to update the film with a short segment on minority attorneys who have contributed to Arkansas' history; and to add a trailer giving due credit to the Bicentennial Celebration, the First National Bank of Little Rock, and other contributors. All advertising would be deleted. From the master 16mm color film. 12 additional prints would be made. The master film would be turned over to the Arkansas' History Commission; and the prints to Arkansas' Department of Education. The prints would be loaned out to schools, civic organizations, etc, for showing during the Bicentennial Celebration and for forever thereafter - a major contribution to the general putr lic's appreciation of Arkansas' hentage. The KATV staff has agreed to cooperate. The First National Bank of Little Rock has given its permission. Cranford-
76/Ap,,1 1975/Arkansas Lawyer
ARKANSAS JUSTICE: TIlE FIRST lWO HUNDRED YEARS JOIN HOST 80B GREGORY FOR A PERSONAl AND HISTORICAL VIEW OF THE PEOPl.£ AND MNTS FROM WHICH ARKANSAS' JUSTICE SYSTEM IS DfRl'v'l:D RECOUNT THE fAMOUS CRIlTENDEN-eoNWAY OUEL THE ESTABLISHMENT Of THE GENERAl ASSEMBlY IN THE OlD STATt CAPITOL THE CMl WAA, RECONSTRUCTION, JUDGE PAAKER'S COURT, JEff DAVIS, JOE T ROBINSON, CUMMINS, CENTRAL HIGH, DAlf BUMPERS, AND OTHER FIGURES AND LEGAl CASES THAT HAVE INflUENCED ARKANSAS JUSTa IN THE TWENTIETH CFNTUR'Y
Johnson is ready to proceed. The Arkansas Bar Foundation, the Arkansas Bar Association. and the Arkansas Bar Association-Legal Education Fund are agreeable to assIst In all ways posSible. The theme of Arkansas Justice: The First Two Hundred Year. is one of tremendous heritage. The film will be of lasting value to all Arkansans - now and forever - a horizon of unlimited promise and benefit." The amount requested was $4CXX) to be matched by $1333 each from the Ar-
kansas Bar Association, the Arkansas Bar Foundation, and the Arkansas Bar Association-Legal Education Fund, The initial grant of $2000 and $2000 in matching funds will cover the ulXJate of the TV film in time for showing on July 1, 1975 when the Bicentennial Celebration begins. An added $4000 will be needed to transfer the TV film to the master 16mm color film and to make the additional prints. ~.
JURIS DICTUM by C. R. Huie Executive Secretary, Judicial Department
October 11, 1974 was a red letter day in the liIe of Circuff Judge Charles W. Light (retired) of Paragould, On that day, the Northeast Arkansas Bar Association honored one of the state's greatest and best loved trial judges. Among those in attendanca from out of the district were Chief Justice Carleton Harris, Justice John Fogleman and Congressman Bill Alexander. Joe Barrett, Attorney, representing Jonesboro and the Craighead County Bar, observed "The judicial competence of Judge Light, first observed in this district, spread rapidly until he became recognized as one of the most outstanding trial judges In Arkansas. Following this was national recognition. He was one of the two State Trial Judges named to the American Bar Association's Committee on Standards of Judicial Administration." One of Judge L1ghfs colleagues on the Committee wrote, "It is not possible to summarize in a few words Judge L19hfs valuable contributions to the Committee's work. It was always Judge Light who brought the theorists back to earth with practical, pragmatic observations and recommendations gleaned from his many years as a trial judge and lawyer." Ms, Kitty Sloan, Press Staff Writer for the Paragould "The Daily," covered the occasion and her story was told as follows:
JURY FINDS JUDGE LIGHT "GUILTY" A self-appointed jury of iawyers and judges from throughout Arkansas returned a guilty verdict against retired
Circuit Court Judge Charles W. Light Friday afternoon at the Paragould Country Club. The jury, through the presentation of awards, vocal tribute and applause. rul-
ed that Judge Light was an honest, capable and witty jurist. At the annual meeting of the Northeast Arkansas Bar Association, which this
year was biiled as a tribute to the ParagOUld judge, lawyers from each of the
going to be a little time yet. All sickness is relative, I guess. For instance I don't think I'm near as sick as Congressman Wilbur Mills is this week."
Chief Justice Harris, speak ing at the
really the prime interest in an efficient judicial system," he said. Noting that court transcripts from
Light's court were always easy to follow and that some of his decisions had been
banquet which concluded the four-hour
quoted
meeting, called Light a "model circuit
Court when those cases were appealed
judge." Harris also cited Light's "sense of fairness." Remarking that several at-
to that body, Harris said loudly: "We appreciate a man that will do that. We appreciate a jUdge that wiil go to that trouble,"
torneys had termed Judge Light "a lawyer's judge," Harris said he preferred to call the honoree "a peopie's judge." "He realizes that the courts operate for
the benefit of the public and that theirs is
extensiveiy
by
the
Supreme
"There are so many things I could say about this man who is being honored Continued
on page 78
countries in the jUdge's former jUdicial district gave short speeches reflecting
on Light's 26 years on the bench. Light, who resigned last year citing health reasons for his retirement, was
elected to the bench in 1946 at age 32, making him one of the youngest judges in the state's history.
The assembled group of lawyers, judges and court reporters also heard tri-
butes from Chanceilor Terry Shell of Jonesboro, representing the judiciary of Arkansas, from Light's long-time court
reporter, Gordon Saylor, from Rep. Biil Alexander and from Chief Justice of the Arkansas
Supreme
Court,
Carleton
Harris. After the series of tributes, Light stood to address the group. "I'm not reaily prepared to respond to an occasion like this," he said in his short talk. "It's the first time I ever resigned." Expressing his continuing hope that he will be able at some future time to re-
Left to right: Judge Charles Light; Gerald Brown, Representing Greene-Clay County
turn to the bench, Light said, "But it's
Bar Association; and Robert Branch, President, Northeast Arkansas Bar Association.
April 1975/Arkansas Lawyer/77
Juris Dictum, Continued from page 79
today," the chief Justice said. preceding a lengthy quotation which he said could halle been written about Light. "We call him his honor to remind us of our own," Harris read. " ... Both sides hope to sway him but hope even more that he cannot be swayed. We the people want fa" play for every man... ,'. At the conclusion of the tribute. Bob Branch. the outgoing president of the Northeast Arkansas Bar. tumed to Judge Light to conclude' "It is not in our province to bestow samthood to you. If we could. we would." The tribute, Branch told the audience. had not been planned without the JUdge's knowledge. "I don't deselVe it. but I will take part in It," Branch quoted the retired Judge as saying. During the lawyer's tributes, several referred to the Judge's fairness on the bench. "He's the only Judge I know who could consistently rule against me and I would feel like he did the right thing." Mitchell D. Moore. city attorney of Osceola said, representing the Mississippi County Bar Association. Julian Fogleman of Marian. representing Crittenden County, cited Light's
"keen knowledge of the law, fine understanding of people, WIt. fairness, intelligence, patience, his equal tolerance for those with lesser Intelligence and those who think they are of greater intelligence." Referring to the comparatively low salaries which JUdges received during most of Light's tenure. Ed Maddox of Poinsett County thanked Judge Light for staying on the bench. despite the financial hardship of the early years. "Judge Light ranks as one of the all time great judges of thiS district. of the state and I think we can even say the nation." Maddox concluded. Speaking for Clay County, C. W. Knauts of Plggotltold the Judge. "It was with great reluctance we bowed to the necessity of your retiring." Humor punctuated many of the tributes. sometimes affording the event the air of an entertainment-community roast. several attorneys. some of them close friends of the judge. recalled humorous inCidents in the judge's career. Reminding the audience of Light's Characteristic sense of humor, Gerald Brown of Paragould said: "He's probably thinking. 'God. someone pinch me. It sounds like I'm dead already,' " Calling Light's humor a trait that was
"not essentially Judicial," Brown said that it allowed him "equininity in tumultDUS situations." Gordon Saylor. Light's long-time court reporter. thanked the Judge for "25 wonderful. happy years," Giving what he termed "a worm's eye viewpoint" of the JUdiciary and referring to his "bigamous relationship" with the judge, Saylor said he olten saw more of the judge than he did of his wife. First District Congressman Bill Alexander. who formerly practiced law in Osceola. presented Light with a Congressional citation and praised the judge for helping people to gain a confidence and an understanding of the jUdicial institution. In addition to other gifts which were to be taken to the Judge's home. Light received a plaque from the Blytheville Bar Association and a citation as a special City attorney of the City of Osceola. Referring to the gilts. the retired judge said in his remarks. "I don't want to sound ungrateful. But I was hopeful there would be one of those blanket pardons." Light said facetiously, "I miss every stinking one of you," the judge concluded as the audience laughed and applauded.
THE SUPREME COURT COMMITIEE ON PROFESSIONAL CONDUCT STATISTICAL DATA-1974 The following statistical data IS set forth concerning operations of The Supreme Court Committee on ProfessIonal Conduct for the calendar year 1974' 1 Complaints requiring action - 165 complaints were received and recorded that required some action on the part of the Executive Secretary. such as a letter to the attorney in question for information purposes; telephone calls to attorneys. complainants. and witnesses: check of court records; personal conferences; correspondence: interview of witnesses: preparing aHidavits, etc. Out of these. 56 written affidavits of complaint were filed with the Executive Secretary. 2. Inquiries not recorded - approximately 720 inquiries were received, either in person, or by telephone. of which no official record was made. These were disposed of at the time 7a/April 1975/Arkansas Lawyer
of Inquiry 3. AffidaVits filed - 56 formal affidaVits (or eqUivalent) of complaints were flied With the Executive Secretary - 47 of these were referred to the Committee as a whole. The balance were either withdrawn by complainant. or were never completely processed due to the deSire. or inactiVity of the complainant. 4. Personal Interviews - 60 personal interviews were conducted with complainants by the Executive Secretary. This does not include witnesses. nor inquiries where no record was made. 5. Committee meetings - The Committee met four times and conducted five formal hearings. 6. Disciplinary action by the Committee - Of the 47 formal complaints referred to the Committee, 13 are still pending, Three ietters of repri-
mand. two letters of reproval, and two letters of caution were issued by the Committee to Arkansas attorneys. In addition relative to Committee investigations. three attorneys voluntarily surrendered their licenses to practice law in Arkansas. One attorney's license was suspended for one year by the Arkansas Supreme Court as a result of a disciplinary proceeding filed by the Committee. Two disbarment suits filed by the Committee are pending trials, One suit filed by the Committee in 1973 that resulted in the disbarment of an attorney is on appeal to the Arkansas Supreme Court. 7. Pending matters - 40 separate matters are pending before the Committee in various stages of precessing. .,t,
"
Legal Economics -Richard A. Williams
Whose secretary Gets the Automatic Typewriter? Once upon a time the law firm of Backus, Goforth & Halter decided to acqUIre its first automatic typewriter. "If the machine is half as good as you say it is, then all of us should have equal access to it. So why not leave it unassigned where it will be available for use by any of our secretaries as required?" said Backus. the Senior partner. He directed these remarks toward Goforth who had onginally proposed leasing an automatic typewriter. "Are you sure It will receive adequate use that way:' Goforth replied. "I suspect the biggest problem will be keeping our secretaries from fighting eNer it," Halter interjected. Goforth was reluctant to claim exclusive rights to the automatic typewriter, so he reluctantly acceded to Backus' suggestion. After several months Goforth noticed that the work output had not increased. Suspecting that the automatic typewriter was not being utilized to capacity. he computed its hours of use and found they represented less than 50% of Its available time. "We are wasting half the monthly cost of the automatic typewriter," Goforth told his partners at the next firm meeting. "I just don't have the time to program my work for the automatic typewriter," countered Halter. "My trial practice is not susceptible of programming," said Backus. "So what do you suggest now?" "My secretary should get the automatic typewriter," Goforth proposed, "because it was my idea In the first place." "I certainly have no objection," Bac· kus replied, "because I still do not believe that the automatic typewriter will increase the work output one iota."
"You won't get any argument out of me:' agreed Halter. "My secretary doesn't like those contraptions at all. The only reason I voted with you to lease an automatic typewriter was that it seemed cheaper than hiring another secre· tary. We must do something soon to get more typing out of this office or else we will lose some key clients." "Another reason why my secretary should be the one to get the automatic typewriter:' Goforth POinted out. "is that my estate plannmg and probate work is better SUited to programming than either the trial work of Backus or the corporate and real estate practice of Halter." When Goforth's secretary received the automatic typewriter, Goforth studied the operation of the machine and assisted her in programming various wills, trusts and probate documents. Before long Goforth's work began to flow smoothly. After several months, Goforth looked back on the deCision to lease the auto· matic typewriter with some pride and satisfaction. Unfortunately his secretary developed a sudden attack of appendiCItis the next day, requiring her absence from the office for about two weeks. Those were two difficult weeks for Go· forth since it was impossible to employ a substitute who could operate the automatic typewriter. As a result, all of the programming lay idle until his secre· tary's return.
Halter's emergencies recurred more frequently each week, delaYing the flow of Goforth's work. Finally Goforth's secretary marched into his office to report that she could not handle the additional work load. At the next firm meeting Goforth suggested to Halter that the firm should acquire another automatic typewriter and assign it to Halter's secretary. "By all means." replied Halter. "You certainly have made a believer out of me." About three weeks after the arrival of Halter's automatic typewriter. the firm held its monthly meeting. Backus announced. much to everyone's surprise, that he wanted an automatic typewriter for his secretary. Goforth doubted that Backus would take the time necessary to do the programming, but concluded it would be unwise to tell the senior partner he could not have an automatic typewriter when his other two partners had one. In view of Goforth's happy experience with his automatic typewriter. both Halter
Within a few weeks after the return of Goforth's secretary, his work was back to normal. About that time, Halter notic· ed his work piling up, and he began casting covetous glances at his partner's automatic typewriter. To meet his real estate closing deadlines, Halter often was forced to ask Goforth's secretary for help. April 1975/Arkansas Lawyerflg
Economics, Continued from page 79
and Backus gleefully anticipated the end of all typing problems in the office. Several months later. however. Halter realized that his secretary was producing less than before. "My automatic typewriter has been no help at all," Haller said at the next firm meeting. My experience has been the same," echoed Backus. "Apparently my original judgement about them was correct." "My secretary and I are still quite pleased with our machine," replied Goforth. "Perhaps if I talked with your secretaries, I might suggest some changes to improve the situation for you." "Unless considerable improvement occurs soon. I am ready to get rid of the darned machine," concluded Halter. Backus nodded his agreement. Aller the meeting was over, Goforth talked with Hailers secretary and asked her Why she thought the output was not better. "Mr. Halter receives a large volume of incoming telephone calls, many of which I am required to handle. These constant interruptions cause me to lose my place while using the automatic typewriter. It takes me several minutes to see where I lell off. With the manual typewriter, I did not have this problem:' Goforth mentally kicked himsell for not having thought of this in advance. "I have another problem as well. Mr. Halter seldom uses the material I have programmed for him. When he wants to do a lease in the Smith file, for example, he pulls the Jones file which contains a
lease and marks up the Jones lease which differs from the stored lease form:' Goforth replied that he would talk to Halter about working from the stored materials rather than something out of a previous file. But he could see no solution to the large volume of telephone calls which she was required to handle for Halter. At the next firm meeting Goforth reported on his meeting with Halters secretary. Then he questioned Backus about the typing work done by his secretary. "My trial practice involves the usual pleadings. briefs. and many report letters," stated Backus. "Automatic typewriters work most efficiently with stored materials," Goforth pointed out. "That is the highest and best use for the machines. But they are also extremely helpful in preparing documents which are subject to extensive revisions, such as legal briefs and major contracts. Unfortunately the large volume of correspondence which you p!'oduce constitutes drall typing. Automatic typewriters will improve draft typing output where the lawyer constantly revises his dictation or the secretary makes numerous errors. Since you seldom revise your dictation of letters, and your secretary is an extremely accurate tyist who has worked with you for many
years, the automatic typewriter is of little help. It may even be a hindrance because she types all of the letters first in rough draft, and they are then run again In final form." "Your comments make sense," Backus replied. "but what do we do about the situation?" Goforth pondered this question before giving an answer. "To obtain maximum efficiency in our office, we must change the work flow. One obvious solution would be the creation of a word processing unit." "We are too small an office for that." Halter interjected. "I agree," Goforth responded. "My suggestion would be to exchange one of the automatic typewriters for a manual typewriter. The secretary with the manual typewriter would handle most of the correspondence and telephone calls for all of us. The other two secretaries. both of whom would be equipped with automatic typewriters, wou Id handle stored materials and documents SUbject to extensive revisions." "What you are suggesting sounds like a form of secretarial specialization:' Backus said. "You are absolutely right," Goforth replied, and if it works for us. it ought to work for our secretaries as well." ~,
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