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JULY 1976
VOL. 10, NO.3
THE OFFICIAL PUBLICATION OF THE ARKANSAS BAR ASSOCIATION
~
Arkansas Lawyer SPECIAL FEATURES
OFFICERS Herschel H. Friday, President Walter A. Niblock, President-Elect Cyril Hollingsworth, Secretary-Treasurer
EXECUTIVE COUNCIL Thomas F. Butt LeRoy Autrey Wayne Boyce
Cover Story: State of Arkansas 90 Supreme Court Room The Assizes of Arkansas Edwin R. Bethune, Jr. 96 To Strike or Not To Strike That is the Issue James W. Moore 102 National Environmental Policy Act Robert H. Marquis 112 Longshoremen's and Harbor Workers' Compensation Act Claims .Eldon F. Fallon 116 Land Development and Zoning Perry V. Whitmore 124
Virginia Tackett
G. Alan Wooten Joe D. Woodward Randall W. Ishmael Robert D. Ross Charles L. Carpenter Herman L. Hamilton Don M. Schnipper John Mac Smith
EX-oFFICIO Herschel H. Friday Waite, A. Niblock Cyril Hollingsworth Robert C. Compton George D. Ellis Robert S. Lindsey
EDITOR C. E. Ransick
EDITORIAL COMMITTEE Robert T. Dawson E. Alvin Schay James M. Moody
REGULAR FEATURES President's Report Herschel H. Friday 94 Juris Dictum ,C. R. Huie 127 Legal Economics Fran Shellenberger 115 Law School News 106 B. Tarkington 96 Oyez-Oyez In Memoriam 130 Executive Council Notes James M. Moody 97 Service Directory 116 Lawyers' Mart , IBC 109 Aegis Addenda C. E. Ransick 131 Ethics 111
Published quarterly by the Arkansas Bar Association. 400 West Markham. Little Rock. Alitansas 72201. Second class postage paId at Little Rock. Arkansas. SubSCription price to non-members of the Arkansas Bar ASSOCiation $600 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 Commillee ContributIons to The Arkansas Lawyer are welcome and should be sent in two COPIes to the Arkansas Bar Center, 400 West Markham. Little Rock, Arkansas 72201. All Inquiries regarding advertising should be sent to The Arkansas Lawyer. above address.
July 1976/ArI<ansas Lawyer!89
Cover Story
STATE OF ARKANSAS SUPREME COURT ROOM On January 9, 1976, the new Arkansas Supreme Court Room at the Justice Building in Little Rock was dedicated in an impressive ceremony. We wish to make a permanent record of the proceedings. Chairman George Hartje of the Arkansas Justice Building Commission presided. Pastor Harold Eggensperger of the First United Methodist Church of Conway gave the Invocation and Benediction. The Pine Bluff Singers, under Director Richard D. Smith, were outstanding in their renditions of songs of America. Chief Justice Carleton Harris of the Arkansas Supreme Court accepted the Supreme Court Room.
THE ADDRESSES
"In Retrospect" -J. L. "Sex" Shaver, Charter Member of the Justice Building Commission _ former Lieutenant Governor of Arkansas· Past President of Arkansas Bar Association
Jack M. Smallwood, of Russellville C. G. Hall, Secretary of State H. W. Parkin, Little Rock J. V. Satterfield, Little Rock Ben F. Butler, Osceola M. S. McCord, Little Rock J. L. "Bex" Shaver, Wynne May it please the Court, Honorable David Pryor, Governor, members of the Building Committee, distinguished guests and ladies and gentlemen of the
jury: I am representing the original Justice Building Commission that was created
by the General Assembly by Act No. 375 of 1955. This commission was authorized to arrange for a suitable site for
the Justice Building on the Capitol Grounds, and to construct and equip the building. The original Commission was composed 01 the following members:
9O/Arkansas Lawyer/July 1976
I should comment that I believe I am the last survivor of this group. The Commission performed its duties. except that it did not have funds to con-
struct and equip a Supreme Court Building as originally planned by the architect. It is to be remembered that the original plans for the Justice Building complex called for a circular building connected to the center of the east side of
the present building devoted completely to an appropriate modern courtroom. The members of the commission devoted much time and effort over a period of several years to supervising the con-
struction and financing of the original Justice Building. So, some twenty years later. we stand here in this beautiful and dignified court
room and make history today by dedicating this building to the public use. It is entirely appropriate that this should be done for as long as this great State en-
dures. this building shall be a symbol of its faith in the rule of law. In the Democratic system. our jUdges
are the best guardians of liberty and rights, as they are chosen for their ability and impartiality and are safer guides
than other people. Go back with me in memory and let us look for a few moments at the importance of this occasion to the people of Arkansas. The future may learn from the
past. GEORGE WASHINGTON •• Id: "The due administration of justice is the firmest pillar of good Government."
JUSTICE JOHN MARSHAL oald: "II is emphatically the province and duty of the Judiciary Department to say what the law is. We must never forget that it is a Constitution we are expounding ... intended to endure of ages to come, and consequently, to be adapted to the various crises of human affairs." JUSTICE STEPHEN J. FIELD oald that upon the stability of law, men rest their property, make their contracts, assert their rights, and claim protection. Law is founded upon reason. and is the result of the general intelligence, learning and
experience of mankind, through a long succession of years. The law of the land is the best inheritance that one may have, because out of it come the general principles "Equal Justice Under Law", "Justice delayed is justice denied", "We are ruled by law instead of by men", and many other just principles which guarantee the human rights of man. But nothing man has ever built with brain or brawn could long endure unless in his heart was faith. Democracy depends on the conscience of men. Justice Holmes taught lawyers to
-
recognize that law changes with society's needs. The Constitution and laws of this country balance society's need for order and the individual's rights. In this building these great issues will be decided. This is a building of dignity and importance suitable for its use as the permanent home of the Supreme Court, and the people of this State have confidence that the Court will interpret the law in such a way as to permit a bal-
ance between society's need for order and each individual's rights under the law.
"May It Please The Court" --flobert C. Compton, President of the Arkansas Bar Association
I am privileged to rise and speak during this Dedicatory Ceremony due only to my presently holding the office of President of the ArI<ansas Bar Association. Thus I now speak for and in behalf of the members of that voluntary association which includes most of the prac路 ticing lawyers and active jUdges in our state, including the members of this Honorable Court. Buildings, unlike monuments or tombs, are not constructed for the pur-
pose of memoralizing people or events. Unlike worl<s of art, buildings &re not constructed solely to inspire and please the beholder. Buildings are built for use by man in his daily needs - shelter, worship and work. One of mankind's greatest needs is order. But for law, there is no order. This building is constructed for the use of the bench and bar of this slate for the administration of justice.
-
Then, while we dedicate this beautiful and functional Arkansas Supreme Court Room, let all lawyers appearing and all judges sitting herein follow the example of the signers of the Declaration of Independence 200 years ago and pledge our lives, our fortunes and our sacred honor to preserving our American system of justice upon which bedrock our free society is built.
"Dedicatory Address" --flobert A. Lellar,
Distinguished Professor Emeritus and Former Dean, University of ArI<ansas School of Law Former Associate Justice of the Arkansas Supreme Court
All of us who are here, and all the members of the Bar of ArI<ansas, are honored by this magnificent courtroom. It symbolizes the significance of law in our society, in our state and nation. It emphasizes the ideal that this land is one where the people live under the rule of law, where no official, no calling, no person is above the law, but all are under the law. This courtroom honors, too, the Court that sits here, the iearned men
and woman who have been chosen to serve at the highest level of our state's law. On behalf of the citizens of Arkansas and the bar that represents the interests of our citizens, I salute - all of us salute - the Justices who now, and others who will in years to come, grace this bench and who assure to the citizens of this state the rule of law that is our democratic heritage. Continued on page 92
July 1976/ArI<ansas Lawyer191
Addre.s Continued from page 91
I am to talk with you for only fifteen minutes today, but I must not speak for fifteen minutes about how wonderful the legal profession is, how wonderful we are. That would be a waste of your time, and of mine. It is more worthwhile to think and speak of the law as becoming a still better government of our society, of the legal profession as a still better servant of the society for whose government the rule of law exists. We all know that the legal profession today does not rank as high as it should in public esteem. It does not stand as high today as it did a generation or halfcentury ago. Yet most of us believe - I believe - that our legal system and the legal profession as a whole are today better suited to the needs of our society, and are more concerned with serving the best interests of the society, than was true a generation or a half-century ago. That does not mean that we are complacent - just the opposite. Rather, it means that we will continue our efforts to make the law better and ourselves better. It will not suffice for us to proclaim publicly that we are better. Certainly it is not enough for us to pat ourselves on the back and tell each other that we are good, that we are more concerned with improving the law and the administration of true justice for all the nation's people than our fathers were. Self-serving talk won't regain the pUblic's high esteem. The legal profession's greatest public relations difficulty today, only partly its own fault, is that too many people mistakenly believe that the lawyer's prime concern with law is that it be profitable to lawyers. We all know that there are lawyers of whom that is all too true, but they do not constitute the whole bar, nor a majority of it. We know that economic interest can color the thinking of most of us, but we can fight against the discoloration in our own minds and in our public positions. We know that the organized bar is not a trade association created merely to further the economic interests of its members, nor is it a monolithic institution with a single point of view. But the public does not know this, and sometimes thinks that it sees evidence to the contrary. We cannot change the public attitude by self-serving praise of our own excellence; we can do it only by self-searching followed by conscientious performance. I have time to give only one illustration, and I will take it from my own field of legal education. It has to do with a problem that is not dealt with in the codes of legal ethics. It is a problem that is not peculiar to Arkansas, one that is newly current in many states throughout the nation. It is the self-serving and suc92/Arkansas Lawyer/July 1976
cessful effort by American law schools to increase their total enrollment far beyond the numbers that can be absorbed by the profession. This is profitable to us in the law teaching branch of the profession. There are more jobs for law teachers, better quarters for our work, more income, more prestige. At whose expense? We are encouraging many thousands of young men and women to spend three years of their lives preparing for careers that we realize will not be open to them. We may need twice as many lawyers in America in the next few years, but we are preparing to send out four times as many. Thousands of them will have to practice, if at all, in the lower margins of the profession. More thousands will have to go to other than law-related careers. They may well be bitter toward the law and the law schools that fostered their defeated hopes. We are taking their time and their money in return for what we cannot deliver. Is this an ethical problem? It is easy to reply "Caveat emptor!" Students have always taken their chances. Law schools do not give warranties for their graduates' careers. We can assert that this is different from selling unusable merchandise or peddling Florida residential lots that are under water at high tide. Yet I'm worried. Are my law teaching colleagues and I as honest as we shou Id be? Can we with decent ethics say that we are not responsible for admission policies, that this is somebody else's responsibility? Can we shut our eyes to what is happening, to what we are helping to happen? My illustration may not be a perfect one, since it does not apply to most of you here. It does apply to me. Yet it may be typical, in that nearly every one of us
here can call up comparable illustrations from our own professional areas. It is hard for us sometimes to recognize that our own personal advantage may not coincide with the public interest. It is especially hard since we, as competent lawyers, can always come up with nice theoretical reasons that appear to support what is to our advantage. The new Code of Judicial Conduct, and the excellent new Code of Professional Responsibility for which Ed Wright's committee was responsible, have moved us forward in our formal ethical standards. As a profession we are more civic-minded than we were a few years ago. The law is better, and on the average we are better lawyers. Yet our public image, as a profession, is poorer. What we have to do is recognize the fact, not by trying to repaint the image but by continuing to improve, as best we can, the reality. We must ourselves identify and bring out into the open every fault that we possess or that is charged against us, then seek to remedy them in terms of the public interest. We must not pretend that we have no faults, nor pretend that we have finished with correcting our shortcomings. The improvement of the law and of the profession that works with the law is a never-ending task. It is our task. This courtroom is dedicated to that task. All of us here, as jUdges, practitioners, and teachers of the law are dedicated to it. The court that sits in this room will have the leading part, for this State, in carrying out this dedication. In carrying it out, this court can properly call upon every lawyer in the state, and upon every judge of every other court, to assist it, each in his own way, in improving the law. and thereby improving the justice that this court administers and to which this courtroom is dedicated.
"....,.JIrF-!li~~-::"~~
Mural Tapestry Interior Court Room The large woven sculptured medallion behind the Justice's Bench was designed by Efrem Weitzman and executed by Edward Fields Carpet Company. Motifs from the Great Seal of the State of Arkansas. as well as the State Bird路 the Mockingbird. the State Flower - the Apple Blossom and the State Tree - the Pine tree. are worked into the field of the design.
The central section depicts the State Flag. as well as the geographic outline of Arkansas. The waving lines leading into the center represent the principal rivers with their influence on the customs and life of the inhabitants.
SCULPTURE - CIRCULAR GALLERY Sculptured Frieze in Circular Gallery represents Lawgivers of Antiquity. It was designed and executed in Roman Travertine
or an appeal to the intellect. These two forces were constantly
marble and stainless steel by Saunders Schultz and William severson, Sculptors-at-Scopia. 51. Louis, Missouri.
Great civilizations existed before the Christian Era and the figures depicted represent their contributions to the Law. Starting with the panel west of the south entrance doors and continuing around to the north counter-clockwise. the figures
The figures depicted in the SCUlpture represent the ancient world's law and law givers. The law has been a continuous
struggle: Should the authority rest in the consent of the governed or should the authority rest in the rule of law handed down and imposed from the heights? 51. Thomas Aquinas observed that In Latin the word "law" is derived from two words: Ligo - to bind or force; Lego - to read,
at odds.
are as follows: I. Babylonians; II. Egyptians; III, Hebrews.Jews; IV. Persians; V. Orientals; VI. Indians; VII. Greeks; VIII. Romans:
and IX .American Indians (from the Dedication
Brochure). :}
"
July 1976/Ar1<ansas Lawyer/93
PRESIDENT'S REPORT by Herschel H. Friday
The June, 1976, meeting will be the 30th consecutive Annual Meeting of the Arkansas Bar Association that Beth and I have attended. During most of that period of time, it has been my privi lege to have a close relationship with the Bar Association and its activities. I have seen its operation develop from a voluntary effort by individual officers in rented quarters to the present sophisticated operation with a highly qualified and experienced staff in a fine physical plant. In this setting, the importance of anyone individual to the success of a particular year is greatly minimized. However, the need for collective strength is more important now. The members of the Arkansas Bar Association have the right and responsibility to be the effective voice of the Arkansas lawyer. The ultimate strength and vitality of the Association lies in its Sections and Committees. The Sections function in their own right and all of the Standing and Special Committees have been appointed. Every Committee Chairman has been contacted and his comments and recommendations have been received, considered and, where indicated, implemented. We have tried to give a Committee assignment, on the basis of stated preference, to every member who has indicated a desire to serve and I am satisfied that we have the framework for efficiently carrying on existing projects and undertaking new ones. If any member of the Association desires to participate in the activities of any Cmmmittee, I will surely honor his request. We will do our best to direct the work of the Association in all areas properly served by the Association, including the availability and rendering of qualified legal services to all citizens to the end of constantly improving the administration of justice. Without detracting from the overall effort, I will mention a few areas that appear to me, at this time, to be particularly significant: 1. This Bar year will be a legislative year. At this time, it does not appear that the Bar Association will be sponsoring major legislation. This could change depending upon subsequent developments, including the action of the electors at the November election on constitutional proposals. We will do what is necessary to see that the Association's views are presented to and considered by the Legislature. Also, we pian to distribute a Legislative Newsletter on a periodic basis which will alert lawyers to proposed bills affecting the practice of law and the profession. 2. We will continue the proper interest of the Association in the two law schools to the end of insuring, to the 94/Arkansas Lawyer/July 1976
extent possible, the availability of quality legal education. The Professional Utilization Committee will follow through on the survey heretofore completed by it. There is a real opportunity for service in this area to the newly graduating lawyers, to the profession and to the public. Many feel that there will be an increasing oversupply of lawyers and that the Bar must work with the law schools concerning the proper utilization of these young graduates. 3. We will continue to pursue the matter of the availability of qualified legal services to all of the people. The State-Wide Lawyer Referral Service, which, we believe, has had a successful start, will be pushed. In addition, we have a very active Legal Aid Committee and we are hopeful that the National Legal Services Corporation will begin to bring effective leadership to this critical area of the administration of justice. 4. We have established a new Youth Education for Citizenship Committee with the expectation that it can undertake a needed and effective program among the young people of this State. 5. By enlarging its present jurisdiction, we have created a new committee on Specialization and Advertising. Advertising is probably the hottest issue at the present time, because it involves a potential radical departure from the traditions of the profession. In my judgment, regardless of the preferences of the great majority of lawyers, this issue will continue to be a very real one and I do not expect it to go away. I am confident that the lawyers will face up to the matter and see that appropriate changes, if and when indicated, are brought about. 6. If approved by the House of Delegates, the Association will undertake a judicial poll designed to insure a quality judiciary, responsive to constructive criticism. In those states where a comparable program has been underway, the results have been very wholesome. The poll permits the lawyers to evaluate the judges on a private basis. There will be no publicity concerning the results of the poll unless the judge releases the poll results. 7. Finally, it is absolutely necessary that lawyers maintain competence. More and more the public is demanding the availability of competent legal service at an affordable cost. As of this date, three states have gone to a system of mandatory continuing legal education (Minnesota, Iowa and Wisconsin) and several other states have the matter under active consideration. Furthermore, several states have undertaken various programs pertaining to certification of specialists; and quality Continuing legal education is eHher expressly mandatory or
President's Report
required as a practical matter. Some 39 states have already established either through Bar Association or law school, or a combination thereof, a permanently structured, staffed and financed continuing legal education organization. The largest and most sophisticated is in California which, incidentally, operates on at least a break-even basis. I think that we should have such a permanent organization in Arkansas. It will be my objective during the year to establish and launch such an organization. Throughout the year, we will keep every lawyer fully informed in what is going on in our rapidly developing legal world, and I look forward to working with each of you. J- _.
"MILESTONES!" A special prepublication discount to members of the Bar has been announced by West Publishing Company for "Milestones! 200 Years of American Law", by Jethro K. Lieberman, a special Bicentennial book dramatizing the pivotal events and personalities in America's legal history as selected in nationwide ballotting by members of the U.S. legal profession. Official pUblication date is scheduled for August 31. Beginning with the Declaration of I ndependence and the Constitution as the foundations of American law, "Milestones!" moves from the historic Marbury v. Madison decision of the Marshall court through to the shattering events surrounding U.S. v. Richard Nixon. The book vividly brings to life the Dred Scott decision, the Fourteenth Amendment, the New Deal years, Erie Railroad v. Tompkins and several of the civil rights decisions of the court of Chief Justice Earl Warren. Eighteen milestones in all.plus the Declaration and the Constitution, are covered
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OYEZ
•
OYEZ
II
••
by Barbara Tarkington Membership Secretary
Craig Burn., formerly of Smackover, has become associated with Gill & Johnson of Dumas. William P. Mill. has opened a law office at 508 W. Arch, searcy, since his completion of 3 years active duty in the U.S. Navy JAG Corp. John B, Thurmon & John B. Blnghom have merged with a NLR law firm and the name changed to Hale, Hendricks, Hoofman & Thurman, PA. Dovld Horgl., formerly with the U.S. Attorney's Office, has joined House, Holmes & Jewell.
• Boyeo R. Dovlo, Lincoln, has been appointed as the first Executive Director of the ATLA. Rogers Cockrill & Harold W. Madden have announced their partnership with offices in the Twin City Bank Bldg. in NLR. Jamo. M. McHaney and John C. Calhoun, Jr. have moved their office to 1902 First National Bldg. The law firm of Harper, Young and Smith of Ft. Smith have relocated their offices at 510 N. Greenwood. Don Curdle, formerly with the Prosecuting Attorney's Office in Little Rock. has become an Assistant U.S. Attorney for the Eastern District of Arkansas. John P. Gill, a Major in the Marine Corps Reserve, has been presented a certificate of commendation.
96/Arkansas Lawyer/July 1976
Gov. Pryor has appointed Jo..... B. Blolr, Springdale, to the state Board of Higher Education and re-appointed Fred MacDonald, Brinkley. Philip S. AndorIOn, Little Rock, has been named a trustee of the George W. Donaghey Foundation. Sidnoy P. McMath, Litlle Rock. has been named President-Elect of Ihe Internalional Academy of Trial Lawyers. Edward O. BrllC08, Jr., formerly of Bentonville, has moved 10 Louisville, Ky. Patten, Brown, Leslie and Davidson, Little Rock, have moved their offices to 1095 Union National Plaza. Robert C. Compton was interviewed on KETS, Channel 2 on the issue of advertising by lawyers. Richard Martin, Ft. Smith, has been named Chairman of the North Sebastian County Unit of the American Cancer Society's 1976 educational & fund raising crusade. Jim Gardner, Blytheville, has donaled 268 volumes of books 10 Ihe Blytheville Public Library with more to come. Fred E. Bosahort, formerly of Little Rock, has joined a NLR law firm and the name changed to Fray, Napper, Bosshart & Wood. Mila. Hale, NLR, conducled a five session adult class during March & April on business law. Sid McCollum, Jerry Do888Y and Lloyd Burrow were speakers at a meeting of Ihe NW Arkansas Chapter of Ihe Society of Manufacluring Engineers. Nlcholo. Bierwirth, formerly of Siloam Springs. has moved 10 Tulsa, OK. Rlchord P. Oaborne, formerly with Gov. Pryor. has become associated with the law firm of Niblock and Odom of Fayelteville. Former Chancery Judge Ernie E. Wright has announced he will be sharing office space with Garvin Fitton for the private practice of law in Harrison. The law firm of McDaniel & Gatt has been formed in Jonesboro by Bobby McDonlel and a 1976 graduate Michael Gotl. Donlel BI.ney, formerly of Jacksonville, has formed a partnership in Morocco, Id. Kurt Butcher, formerly of Garfield, has moved his law practice to Bentonville. Joe and Betty Andoraon, formerly of Helena, have moved to Shreveport, La. Forre.t L. Jacobi, from W. Memphis. has relocated his office in Green Forest. Evelyn I. Drake, formerly of Heber Springs, has moved to Cedar
Falls, Iowa. Howard C. Vate. has joined the firm of Loh & Massey in Morrilton. Thoma. D. Wynne III, 1976 graduale, has been named deputy prosecuting attorney for Bradley County. Dovld Folaom has been named a law partner with Young & Palton of Texarkana. O. H. Storey III, former Assistant U.S. Altorney for the Eastern Dislrict of Ark., has become a partner in a LA law firm and the name changed to Hoover, Jacobs and Slorey. Corl D. Plumlee, a 1976 graduate, has opened his law office in Salem. Robert W. Gorrell has become an Associate in the office of Som Ed Glbaon, Benton. A. Jock King has returned to Ozark to start his law practice. Deborah Jackaon, a 1975 graduale, has opened a law office in Paragould while her partner, Richard Flelahor, also a 1975 graduale, has his office in New Jersey. Bill W. Brl.tow, high scorer al Ihe Augusl 1975 bar exam, has opened his law office in Jonesboro. Stephen E. Jame., high scorer at the March 1976 bar exam, has opened his law office in Clinton. Fronklin Wilder, Fort Smith, has completed his third book concerning the John Wesley family, pioneers of Methodism. Lynn F. Wade, Fayetteville, has received the first Freedom of Information Advocate award. Mike WII.an, Jacksonville, was a runner-up for Ihe award. Floyd Clordy III has been appointed Assistant U.S. Attorney for the Western District of Ark. Assistant Dean Stovo Clork, Fayetteville, has been named by Gov. Pryor to a Special Committee on County Government. Wllliom M. Moorhood, Sluttgart, has been named Chairman of the Supreme Court Committee on Bar Discipline and Caldwen Bennett, Batesvi lie has become a member. J. Goyle Wlndaor, Jr., Little Rock, was the speaker at the March meeting of the Arkansas Association of Women Lawyers. Virginia Tackot, Little Rock, was their April speaker. Robert F. Morehead, Pine Bluff, was the guest speaker at a special program held in April at Ihe St. John AME Church. Wolter Niblock, Fine. F. Batchelor, Jr., and Philip K. Lyon made a presentation on economics of law practice during a Continued on paoe 97
,-
EXECUTIVE COUNCIL NOTES by James M. Moody Secretary-Treasu rer
This will be my last article as Secretary-Treasurer and I want to take the opportunity to express my thanks to" those people in the Association I have worked with and especially to Col. Ransick and his fine staff without whom the organization could not function. The By-Laws of the Association provide that the Secretary-Treasurer will report to the House of Delegates annually on the fiscal affairs of the previous year. This report is made at the mid-winter meeting and updated at the annual meeting in Hot Springs. In the past four years the assets have increased from $58,818.69 to $119,168.96 and members equity from $56,068.09 to $77,349.15. This equity is presently in the form of reserves invested for the most part in Federal Land Bank bonds under the management of a permanent investment committee. Despite the fact that inflation has affected the operation of the Association as much as any business, the Association has continued to function within its revenue and shows every indication of continuing the trend. Credit again goes to Col. Ransick for his careful administration of the Bar Center and the expenses of the Association. Membership in the Association has increased from 1,579 in May, 1972, to a new record high of 2,149 as of June 4, 1976. This figure does not include 36 law student members. As part of its regular business, the Executive Council held a scheduled meeting at the Red Apple Inn, Eden Isle, on April 23, 1976. Dick Hatfield reported on the activities of the Prepaid Legal Service Committee. The committee which has worked extensively on review of various available plans, has reached
a stalemate until funds can be appropriated for more intensive studies. Hatfield suggested the possibility of an amendment to the insurance code to allow for regulation and administration of prepaid legal plans and contact with congressional representatives for revision of the Internal Revenue Code to allow for deduction from income tax for contributions to the plan. A questionnaire for use in the judicial survey has been prepared by Jim Ranchino with assistance and input from the committee chaired by
Win Drummond. The survey would be instituted in December, 1976, at an initial cost of $5,000. Thereafter the survey would be conducted every two years and resu Its communicated to the individual judge who has the sole option to publicize the results. The Executive Council approved the plan for consideration by the House of Delegates. The Council voted to redesignate the "Arkansas Bar Center" to "Arkansas Law Center" to give recognition to the Foundation and the law school.
Oyez Continued from page 96
March evening class at the U of A at little Rock Law School. A. W, Dick Horne. Little Rock, has been elected Chairman of the Arkansas Tax Revision Com-
mission. William Devld MUllen, grandson of the late Judge Roy Mutlen. has located his law practice in Walnut Ridge. Wllllem S. Mitchell and Robert C. Lowry. Little Rock, have moved their law offices to the 300 Spring Bldg., Ste. 420. Bill Jennlnge, Magnolia, has gone into private practice with his law office locat-
ed at 131 S. Jackson. Tom B. Smllh. Wynne, has become a full partner with his uncle and grandfather and their firm name changed to Shaver, Shaver & Smith. A law partnership has been formed in Ozark by Lonnie C. Turner and Orville C. Clift. Herold L. Hell, Little Rock, has been elected President of the Arkansas Association of Criminal De-
fense Lawyers; Robert W. Lelller. V.President; JllCk D. FI.... Secretary; and Henry Ooterloh, Treasurer. Max Bowie, Newport. has been appointed by Gov. Pryor to the State Advisory Council for Legal Services Corporation. The office and home of Bob Wellenberger, a 1976 graduate practicing in Monticello, was
destroyed by fire on the first day his office opened. M. R. Godwin, Little Rock, has joined the First Federal Savings and Loan Associallon as Vice-President of the Mortgage Loan Dept. Burl C. Rotenberry. formerly of Fort Smith, is now with
the Attomey General's Office in Little Rock.â&#x20AC;˘ Robert L. Hert, Jr., has been named Trust Officer of Simmons First National Bank of Pine Bluff. Her..,hel H. Frldey received the 1976 Shield of the Trojan, distinguished alumnus award, from the U of A at Little Rock Alumni
Association. Richerd A. Wlllleme, Little Rock, participated on a panel at an Association of Legal Administrators Continued on page 101
July 1976/Arkansas Lawyer/97
THE ASSIZES OF ARKANSAS (1970-1976) -Edwin R. Bethune, Jr.
In early England an "assize" was an assembly or its decree. The word was derived from Latin, aaslder., meaning
"to sit together". The first great assize was called by Henry II in 1166 to reform an unsatisfactory royal system of administering justice. That gathering of judges and lawyers, known as the Assize of Clarendon (1166), successfully met the needs of the time by producing such darIng Innovations as Itinerant judges and grand Juries. /I was the real beginning of the English Common Law. This article Is a report on the "Assizes of Arkansas (1970-1976)" which produced modern rules of criminal proce-
butions of many others who. due to space, must remain anonymous. The success of this reform is a credit to fNery Arkansas lawyer and judge who has made a stand, often times at great personal expense. to improve the system. Credit is also due elected officials who
publicly endorsed the idea, and to the media for their extensive and favorable treatment. A reform so wide-reaching could not have succeeded without such
broad support. THE ABA STANDARDS
INTRODUCTION Before 1970 there was never a systematic revision of Arkansas criminal procedure. In the past, changes were piecemeal and, more often than not,
ening and improving its administration. Seventeen sets of standards covering the entire field from police function through post conviction remedies were
and to formulate standards for strength-
cess of the recent project; but, upon reflection, that would not be fair. This reform was borne of necessity. It happened because the time was right. The past was truly prologue. The work and guiding inspiration of the leaders mentioned in this article was important but no more so than the contri-
The first movement of the Arkansas re-
form coincided roughly with the kickoff of the national effort of the American Bar. It is hard now to state for certain
scratch. In 1964 the American Bar Asso-
broad reform for a long time. Many wellintentioned efforts were begun but for various reasons fell short of the mark. It is tempting in an article like this to credit particular persons with the suc-
ards. The Criminal Justice Section of the
ABA was charged with the duty of implementing the Standards in the fifty states and Mr. Justice Tom Clark took the leadership of that responsibility.
whether we heard about the Standards and decided to reform or whether we decided to reform and then heard about the Standards. This chicken-or-egg
ciation, anticipating revolutionary developments in the criminal process, organiZed a special committee to analyze the entire spectrum of criminal justice
Leaders of the Arkansas bench and bar had been aware of the need for
did not stop with the writing of the Stand-
have to start our revision effort from
here to review the parallel development that produced a new substantive criminal code which became law January 1, 1976.
specific problems or particular court decisions. Thus, our scheme of procedural law was antiquated and internally inconsistent. In short, the Arkansas criminal justice system needed to reexamine old ways of doing things, to reform, to experiment, to run risks, to dare.
It was a blessing to Arkansas that the American Bar Association's commitment to the improvement of the system
Fortunately, we Arkansans did not
dure for our state. No attempt is made
took the form of lid hoc responses to
"Qut issues" in the criminal justice pro-
cess.
produced. The list of subjects covered tells the story: 1. The Urban Police Function 2. Electronic Surveillance 3. The Prosecution Function 4. The Defense Function 5. Providing Defense Services
problem is unimportant except as it em-
phasizes our early marriage to the ABA Standards implementation project - for it was that union that really got the Arkansas reform effort moving.
The ABA implementation program was well-funded. Lynn Edwards, Staff Director of the ABA Criminal Justice Section, came to Arkansas in 1970 to offer help and encouraged us to use the Standards as a basis for our reform. He
explained the Standards to us and told us how to get started. The quality of the Standards was immediately apparent. They were drafted
6. The Function of the Trial Judge 7. Pretrial Release 8. Discovery and Procedure Before Trial 9. Speedy Trial
by committees formed of persons from
10. Joinder and severance
good work of the Standards could stand the light of day. It was even clearer that It would be a mistake not to use the Standards and the valuable ABA support as a starting point for the Arkansas reform.
11. Pleas of Guilty 12. Trial by Jury 13. Sentencing Alternatives and Procedures
14. Probation 15. Appellate Review of Sentences 16. Criminal Appeals 17. Post-Conviction Remedies
It is readily apparent from the titles that the ABA Standards deal with the
the entire spectrum of the field of criminal justice. The issues covered by the Standards were considered from every point of view - it was clear that
THE COMPARATIVE ANALYSES The ABA counseled us to first make a
formal study of the Standards. We were advised to compare the Standards with existing Arkansas law, thus identifying
EDITOR'S NOTE: See ADDENDA, THE ARKANSAS LAWYER, April 1976, for the origins of the Arkansas Progrem re the A B A Standards for Administration of Criminal Justice.
98/Arkansas Lawyer/July 1976
the critical areas for reform. The project - no small task - would entail a review of the entire body of Arkansas criminal procedural law. Backed by funds obtained from LEAA, Professor Rafael Guzman of the University of Arkansas Law School at Fayetteville, took the responsibility for preparing the comparative analysis of all seventeen Standards. Since reform would necessarily follow completion of the comparative analyses, Professor Guzman agreed to and did complete his technical work in record time. Law students were employed to assist the professor and many of them later played important roles in the reform. The comparative analyses were mimeographed in booklet form, one booklet for each Standard. The booklets were done so that the reader could quickly compare the Arkansas law with the ABA proposal. To further enhance comparison, the analyses contained a recommendation for action required to bring Arkansas law in line with the ABA Standards.
THE WORKSHOPS As Professor Guzman's team of law students completed research on the first three Standards, a decision was made to study three of the Standards at a workshop to be attended by judges, prosecutors and defense attorneys. Travel and lodging expenses would be paid under an LEAA grant. The workshop was heid January 20-21, 1971, in Hot Springs and was jointly sponsored by the Arkansas Supreme Court, the Arkansas Judicial Council. the Arkansas Prosecuting Attorneys Association, the American Bar Associa路 tion, the Arkansas Commission on Crime and Law Enforcement, and the Ar路 kansas Bar Association. The uninimity of support for the first workshop was yet another testament to the quality of the American Bar Association Standards project. The Arkansas Bar Association took the lead in pUblicizing and organizing the workshop. Free copies of the ABA Standards and comparative analyses were mailed to participants in advance. Each participant was given a reading assignment so that the Standards could be examined critically by people who had studied the material before com Ing to the workshop. The workshop was not to be a "spoon-feeding" of new ideas, Since It was felt that the Standards could "stand the light of day", the workshops were purposely designed to test the Standards In the labyrinth of open and studied discussion. The attendees were broken into three groups to study the Standards on "Pretrial Release", "Pleas of Guilty", and "Speedy Trial". All of the proceedings were reported with the idea
that the written record would be used if and when an effort was made to reform procedural law. The two-day workshop was inter路 spersed with important messages concerning the American Bar Association Standards project which were beautifully delivered by Justice William H. Erickson of the Colorado Supreme Court, Professor Samuel Dash of the Institute of Criminal Law and Procedure of Georgetown University (and later of Watergate fame), Louis B. Nichols, a retired assistant director of the FBI, and the venerable Mr. Justice Tom C. Clark, retired United States Supreme Coort Justice. All of the speakers were provided by the American Bar Association at no expense to the State of Arkansas. Their remarks and the high quality of the ABA Standards convinced the workshop participants that the starting point for reform had been found. The comments were so favorable that immediate plans were made to study the remainder of the Standards at a second and third workshop to be held as soon as possible. The second workshop covering five important Standards was held October 78, '1971. The Standards studied were "Joinder and Severance", "Trial by Jury", "Discovery and Procedure Before Trial", "Criminal Appeal", and "PostConviction Remedies". The scheme of the workshop was changed so that each participant would have exposure to each Standard being studied; however, by using the Arden Hoose fonmat, the small study group concept was preserved. Assignments were once again given to judges, prosecutors and defense attorneys in advance so as to generate significant discussion. The ABA continued its fine assistance by sending eight nationally known speakers at no expense to Arkansas. Sam Dash, William Erickson, and Lynn Edwards made their second trip to Arkansas, and they were joined by Adrian Spears, Chief Judge of the United States District Court of the Western District of Texas; Jack G. Day, Chief Judge of the Court of Appeals of Ohio; Paul Wilson, Professor of Law at the University of Kansas; Reese Harrison, Assistant United States Attorney for the Western District of Texas; and, James R. Gillespie, Defense Attorney from San Antonio, Texas. The third workshop was held January 20-21, 1972, using the same format that had proved successful at workshop II. The nine remaining Standards were considered: "Appellate Review of Sentences", "Sentencing Alternatives and Procedures" , Probation". .. The Prosecution Function", "The Defense Function", "Providing Defense Services", "The Police Function", "The Judges Function", and, "Electronic Surveillance". The American Bar AssociaII
tion Section on Criminal Justice continued to be a major benefactor in the Arkansas refonm effort. Another 125 sets of Standards were made available, free of charge, for workshop participants - a monetary value in the neighborhood of $4,IXXL Out-of-state speakers were again furnished at the expense of the American Bar. Mr. Justice Tom C. Clark and Chief Justice Jack G. Day made their second trip to Arkansas on behalf of the Standards project. Lynn Edwards continued to render yeoman service to our state by returning for his third visit. Other ABA speakers included Peter W. Low, Professor and Associate Dean of the University of Virginia Law SChool; Theodore B. Knudson, Chief Justice of the Fourth Judicial District of Minnesota; Herbert S. Miller, Deputy Director of the Institute of Criminal Law and Procedure of Georgetown University; Watter S. Rogosheske, Justice of the Supreme Court of Minnesota; Andrew W. Parnell, Judge of the Tenth Judicial Circuit of Wisconsin; Gerald T. Bennett, practicing lawyer and Associate Professor of the University of Florida; Keith Mossman, Past President of the National District Attorneys Association of Vinton, Iowa; and, G. Robert Blakey, Chief Counsel of the Sub-committee on Criminal Law and Procedure, Committee on the Judiciary, United States Senate. As workshop III drew to a close, Mr. Justice Tom C. Clark put Arkansas' effort in perspective. He said, "Little Arkansas is leading the national effort to implement the American Bar Association Standards." As authority for his statement, he pointed to the successful workshops. the comparative analyses. and other developments which will now be discussed.
JUDICIAL RULEMAKING As the reform idea gathered momentum through the workshops and other collateral efforts, it became abundantly clear that Arkansas needed to make a fundamental decision about the adoption of procedural reforms. Would Arkansas, because of the inertia of custom, cling to the precedent that procedural rules could only be adopted by the legislature? Or, woold she opt for judicial rulemaking in the area of pleading, practice and procedure? The Arkansas Bar Association, acting on the premise that rulemaking is an inherent power of the Supreme Court, sponsored a measure in the 1971 state legislature which was patterned after the federal measure that authorized the United States Supreme Court to promulgate rules of pleading, practice and procedure in criminal cases. The bill gained the support of Attorney General Ray Thornton, Chief Justice Carleton Harris, Continued on page 100
July 1976/Arkansas Lawyerl99
Assizes Continued from page 99
and Governor Dale Bumpers. Within a matter of weeks the Arkansas General Assembly had passed Act 470 of 1971 which empowered the Arkansas Supreme Court to promulgate rules of pleading, practice and procedure in criminal cases. Thus. the way was clear for our high court to take over the business of procedural law.
THE ARKANSAS CRIMINAl CODE REVISION COMMISSION Along about the time of the second wor1<shop, Chief Justice Carleton Harris and Attorney General Ray Thornton entered into joint sponsorship of an 18member Arkansas Criminal Code Revi路 sion Commission. The commission was charged with the responsibility of revising both substantive and procedural law. It was divided into two 9-member com路 mittees. Composition of each committee was carefully considered in order to in路 sure proper representation of concerned groups and institutions. Members included an associate justice of the state Supreme Court, a sheriff, a municipal judge. two circuit judges. a chancellor. three former prosecuting attorneys, a state senator, a state representative, two law professors, and several attorneys skilled in the practice of criminal law. Circuit JUdge Harold Simpson of Pocahontas was chosen to chair the 9-member substantive committee and this writer was chosen to chair the 9-member procedural committee. The committees were given carte blanche to reform the Ar1<ansas criminal process and it was understood that the procedural committee would rely heavily on the work product emanating from the ABA Standards workshop.
All the members of the commission donated their time and expertise, being reimbursed only for their expenses. The expenses for the commission were borne by LEAA grants. American and Arkansas bar associations contributions. and $25.000 which was appropriated by the Arkansas legislature in 1973. The members of the procedural committee in addition to the chairman were Jack Lessenberry of Little Rock. Judge Terry Shell of Jonesboro. JUdge Bobby Steel of Nashville. William P. Thompson of Fort Smith. John T. Harmon of North Little Rock. Professor James W. Murphy of Little Rock. Justice John Fogleman of Little Rock. Terry Kirkpatrick of Fayetteville. Rep. Ray Smith of Hot Springs. Rep Rudy Moore of Fayetteville. and Reggie Eilbott of Pine Bluff. In 1972. Attorney General Ray Thornton was elected to Congress. His successor, Attorney General Jim Guy Tucker, became a 100 per cent supporter of the reform effort. In fact, Attorney General Tucker intensified the rerorm effort by providing additional staff and timely politicai support. Without his help the new rules of criminal procedure would still be on the drawing boards. The procedural committee of the Criminal Code Revision Commission met at least one week-end per month. Meetings would run from Friday noon oftentimes until late Sunday afternoon. It was not uncommon to spend an entire week-end on one narrow SUbject. By and by, the committee produced tentative drafts which were refined by the staff of the Criminal Code Revision Commission. The revised drafts would come back to the committee two or three times before being finally approved. In April. 1974. the procedural committee of the Criminal Code Revision Commission
completed its proposed draft. The draft was printed and a copy of the proposals was furnished to every lawyer and judge in the State of Arkansas.
THE ADOPTION OF THE RULES In December of 1974. the Arkansas Criminal Code Revision Commission petitioned the Supreme Court of the State of Arkansas to adopt the Rules of Criminal Procedure as drafted by the procedural committee. The court entered an order fixing a briefing schedule and providing any interested person or group with an opportunity to file objections or suggest modifications. The rules. while pending before the court. were submitted to many groups other than lawyers and judges, including the General Assembly's Legislative Council Judiciary Committee and its standing joint interim committee on the judiciary. Pursuant to the court's briefing schedule, suggestions and briefs were filed by the Arkansas Prosecuting Attorneys Association, bail-bondsmen, and others. including responses by the Criminal Code Revision Commission. All suggestions were considered by the court and several amendments were made to the proposed rules. Then. in December of 1975. the Supreme Court issued its per curiam order which provided. Interell.: "Pursuant to Act 470 of 1971, and in harmony with the court's constitutional superintending control over all trial courts. the court hereby adopts and approves the Proposed Rules of Criminal Procedure, as amended, effective January 1. 1976." THE SPIRIT OF FREEDOM A special salute goes to two men who played important but not so Obvious
Edwin R. Bethune, Jr. served as Program Director for the three Arkansas Workshops (1970. 1971. 1972) to implement the ABA Standards lor Criminal Justice; Chairman of the Arkansas Bar Association's Committee to Implement the Standards; Chairman of the Procedural Committee of the Arkansas Criminal Gode Revision Commission; and as Guest Speaker at various state and natlonaf meetings on the Standards. Bethune receIved his J 0 from the University of Arkansas School of Law In 1963. He served as an FBI Agent from 1964-68. DurIng 1970. he was Prosecuting ANorney lor Arkansas' First Judicial District. He Is a member of numerous civic and professional organIzations and is ChaIrman of the Federal Home Loan Bank Board. 9th District.
100/Arkansas Lawyer/July 1976
roles in keeping the spirit of reform alive. Col. C. E. Ransick, Executive Director of the Arkansas Bar Association, and his staff spent many hours in planning and conducting the workshops. They also, throughout the period of reform, maintained close liaison with the American Bar Association and with the Arkansas associations that have backed the effort from the beginning. Frank Newell, Staff Director of the Criminal Code Revision Commission, was a God-send to the entire reform process. He personally attended all meetings of the procedural committee. When the meetings were over he would "put it all together" by reducing the many ideas to firm, understandable rules of law. Additionally, he drafted, or supervised the drafting of, the considerable commentary that will be of value as the rules are construed over the years to come. His untiring efforts were an inspiration to his staff and to all the members of the procedural committee. Credit should also go to every president of the Arkansas Bar since 1969 since they each gave 100 per cent support to the Assizes of Arkansas. The leaders of the other supporting associations during the period of reform are also due credit since this reform succeeded only because it was broad-based.
Oyez ContinUed from page 97
March convention in New Orleans. Mlchaal Dennll, former City Attorney for Pine Bluff, has returned to the law firm of Dickey, Drake and Bynum. Jamel A. McLarty has been elected Vice-President of the Newport Chamber of Commerce. U of A at Fayetteville honored William H. Bowan by presenting him with one of three Distinguished Alumnus Citations. The Arkansas Duplicate Bridge Assn. under the President, Edward Leoter, Little Rock, has chosen The Arthritis Foundation as the 1976 "Charity of the Year". Ronald Klncada has opened a law office in Mountain Home. Ste.a White has opened his law office in Charleston. Donald M. Spaars
In concluding this article, special mention must also be made of some interesting footnotes which show another side of the Arkansas reform effort. Many states have literally spent hundreds of thousands of dollars on unsuccessful efforts to reform the criminal process. Our state. with its limited bUdget, completed the entire project on $25,000 which was obtained from the legislature in 1973. (Other money was obtained from American and Arkansas bar associations contributions and from LEAA grants through the Arkansas Commission on Crime and Law Enforcement. but, unlike other states, the effort was really done on a financial shoestring.) Other things - which can only come under the heading of "scrounging" deserve mention because they too show the real spirit of Arkansans when there is a job to be done. When the proposed official draft was ready for publication in April of 1974, the law firms of Smith, Williams, Friday, Eldredge and Clark; and Wright. Lindsey and Jennings of little Rock, Arkansas, voluntarily typed the drafts on mag-card automatic typewriters. As last minute changes were made, the law firms would retype the drafts free of charge. It was their way of helping out. Furthermore, when the commission finally got to the point where it needed a published draft, it outright begged the publisher of our Arkansas StaMes, Bobbs-Merrill, to print our proposals free of charge. The BOObs-Merrill Company graciously accepted and many dollars were saved for the public. Canon VIII of the Code of Professional Responsibility approved in January of 1970 by the Arkansas Supreme Court Provides; "Changes in human affairs and imperfections in human institutions make necessary constant efforts to maintain and improve our legal system. This system should function in a manner that
commands public respect and fosters the use of legal remedies to achieve redress of grievances." "By reason of education and experience, lawyers are especially qualified to recognize deficiencies in the legal system and to initiate corrective measures therein. Thus they should participate in proposing and supporting legislation and programs to improve the system. without regard to the general interests or desires to clients or former clients." "Rules of law are deficient if they are not just, understandable. and responsive to the needs of society. If a lawyer believes that the existence or absence of a rule of law, substantive or proceduri"l. causes or contributes to an unjust resuh. he should endeavor by lawful means to obtain appropriate changes in the law. He should encourage the simplification of laws and the repeal or amendment of laws that are outmoded. Likewise, legal procedures should be improved whenever experience indicates a change is needed." In 1970, when the Assizes of Arkansas were in their embryonic state, Arkansas lawyers and judges were challenged to do their duty under Canon VIII. By the successful completion of the long and arduous reform process, Arkansas lawyers and judges have fulfilled their professional responsibility. However, we must now honor the spirit of the law and keep the new rules up to date. If we rest on our laurels, our accomplishments, in the perspective of time, will be remembered as a small ray of light in the heretofore dismal history of Arkansas criminal procedure. If, however, we continue the alternative we have chosen a vigorous and unrelenting effort to reform -the people of Arkansas will gain respect for their system and our progressive resolve will be heard across the country. The choice is ours. .. ÂŁ1--..
has opened a law office in Malvern. Randall C. Jarmen has opened a law office in Berryville. Judge Mary Burt Nash, little Rock, has been selected as Arkansas Mother of the Year by the American Mother's Commission State Chapter. Jimmy D. Joyca, Pine Bluff, has been named 1976 Boss of the Year by Opportunity Chapter of American Business Women's Assn. Griffin Stockley has been named the new Director of the Pulaski County Legal Aid Bureau. G. Wayne Mooney, a recent graduate, has opened his law office in Wilson. New officers elected at a Law Day Banquet of the Greene-Clay County Bar: Pres., Guy Brinkley; V.-Pres., Alfred Holland; and Sec.-Treas., Deborah Jackson. JUdge Darrell Hickman was their guest speak-
er. Cleborne County Bar has new officers: Pres., Hoyt Thomal; Sec., Stephen Choate; and Treasurer, Earl N. OlmItead. New officers also for the North Pulaski County Bar: Pres., Ben Rice; V.Pres., Jim May; Sec., Paul Fray; and Treasurer, Kan Suggl. Walter Cox has been elected the new President of the Washington County Bar with Bill Storey as the new Vice-Pres. and Francll Rudko Secretary-Treasurer. Allan W. Horne has been elected President of the Pulaski County Bar; WIlliam L. Terry the new Vice-President and Garry P. Barkat sec.-Treas. During March the Texarkana Bar held a dinner honoring the Federal Judges of the Western District of Arkansas and the Eastern District of Texas.
[J--. July 1976/Arkansas Lawyerl101
TO STRIKE OR NOT TO STRIKETHAT IS THE ISSUE by James W. Moore
I. INTRODUCTION Regardless of whether your practice includes the field of labor relations, in representing people, whether they are individual working men or women, collective bargaining groups of workers, commonly referred to as labor unions or employers. private or public, you are likely to find yourself being asked by your client what the client's rights are in either an industrial or public sector strike situation. By "strike situation", I mean a temporary concerted stoppage of work by two or more employees for the purpose of achieving a desired objective from their employer which he is unwilling to grant voluntarily.
II. CONSTITUTIONAL RECOGNITION In an employer-collective bargaining agent relationship, the right to strike is labor's primary weapon. Contrary to popular thought, the right to strike is not constitutional in origin. Certain consequences of striking and attendant picketing, however. have received some constitutional backing by our courts. For example, the Thirteenth Amendment's prohibition against involuntary servitude has been held to prevent a court from ordering an employee to return to work even though the strike in which he is participating is illegal. But, this constitutional protection is not absolute when the public employee attempts to strike his sovereign governmental employer. Likewise, peaceful picketing has been equated to freedom of speech by the United States Supreme Court and protected against State action under the First and Fourteenth Amendments. Thornhill v. Alabama, 310 U.S. 88 (1940). On the other hand, this constitutional l02/Arkansas Lawyer/July 1976
protection was partially withdrawn when mass picketing violence and provocative acts by strikers erupted in an Indus路 trial strike situation in the celebrated Arkansas case of Youngdahl v, Ralnlalr, 355 U.S, 131 (1967). III. STATUTORY PROTECTION UNDER THE NATIONAL LABOR RELATIONS ACT The employees of a non-governmental employer covered by the National Labor Relations Act or their labor union depend upon certain provisions of the NLRA as the source of their authority to engage in strike or protected concerted activity as it is paraphrased from the NLRA's definition. The right to strike. among others, is embodied in the employees' "Section 7 Bill of Rights". "IE Jnployees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage In other concerted activities for the purpose of collective bargaining or other mutual aid or protection". 29 U.S.C. 1157 It is an unfair labor practice subject to remedial action 'Jy the Board for either an employer or a Union to coercively interfere with employees engagement in protected concerted activity. 29 U,S.C. 11158(a)(1) and (b)(1)(a. The NLRA provides practically no explanatory guidelines for determining what work stoppages constitute protected or permissible strikes. These criteria, as well as the rights of the strikers, have been developed in a hodge-podge, case-bycase basis by the Board and the reviewing federal appellate courts. In order for strikers to be protected in their concerted activity, they must be involved in a labor dispute. A "labor dispute" is defined under the NLRA as:
"(A hy controversy concerning terms, tenure or conditions of employment or concerning the association or representation of persons In negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee". 29 U.S.C. f152(a). When the original Wagner Act of 1935 with its prohibitions against employee unfair labor practices was amended in 1947 by the Taft-Hartley Act to include for the first time a list of unfair labor practices for organized labor, the redactors specifically preserved the right to strike: "Nothing in this subchapter, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right". 29 U.S.C. 1163. IV. PROTECTED STRIKES A. Economic Strikes Strikes subject to the NLRA are either economic or unfair labor practice in nature. The classic definition of an economic strike is a work stoppage by an employer's employees for the purpose of forcing the reluctant employer to increase wages or improve fringe benefits or working conditions. Section 2(3) of the NLRA. 29 U.S.C. 1152(3), states, in effect, that the employer cannot deprive striking employees of their employee status so long as the strikers are engaged in protected concerted activity. A strike for economic reasons is protected concerted activity. Employers in Arkansas who experience organizational and collective bargaining activity for the first time have
difficulty sometimes in understanding why they cannot terminate or otherwise discipline employees who participate in protected concerted activity. What Is even more difficult to understand by the employer who is unfamiliar with the rights conferred upon his employees under the NLRA is the form sometimes that the right to engage in protected concert路 ed activity takes. In NLRA v. Oklahoma Allied Telephone Co., Inc., _F.2D_, 201 NLRB No. 123, (10th Cir., Doc. No. 74-1461, May 2. 1975). (unreported), an Arkansas-based telephone company's traffic manager terminated a telephone operator for insubordination because of the derrogatory manner and remarks she used towards him and her supervisor in connection with her complaint about the allegedly warm temperature in the operators' traffic room. In an unfair labor practice charged filed with the Board, the employee claimed and a majority of the Board held that she was unlawfully terminated by the Company as reo crimination for her engagement in the protected concerted activity of protest路 ing working conditions to management. The Tenth Circuit Court of Appeals reversed the Board and held that there was insubstantial evidence to support the Board's concerted activity finding that the employee was acting on behalf of other employees when she complained about the temperature in the traffic room. In other words, individual complaining and griping by employees to management about working conditions is an unprotected non-concerted activity for which an employee can be disciplined by the employer when the employee conducts himself in an insubordinate manner. On the other hand, if the employee can show that he is protesting not individually, but on behalf of other em-
ployees, a working condition or economic issues affecting his employment. then he cannot be terminated for engaging in this protest even though his actions may have offended his employer's sensitivities. Board imposed niceties of the concept of protected concerted activity are difficult even for the reviewing courts to accept. This places a sometimes impossible responsibility on the employer's supervisors who must discern technical concerted activity situations everyday by their employees and react properly without violating the unknown decisions of the NLRB. An economic striker can be permanently replaced in his job by his employer with another employee. In other words, the right of the economic striker to collectively refuse to render his employment services to his employer in order to gain economic advantage is not absolute. This right has been balanced against the employer's concomitant right to continue his business. Consequently, if the employer hires permanent job replacements for economic strikers during the course of their strike, he is under no NLRA obligation to reinstate the strikers to their former jobs upon termination of their strike and an offer to return to work. NLRB v. Mackay Radio & Talograph Co., 304 U.S. 333 (1938). The permanent replacement right of the employer has been modified to some extent by the Board in Laidlaw Corp., 171 NLRB No. 175, enforced 414 F.2d 99 (7th Cir. 1969), cert. denied, 397 U.S. 920 (1970). While the employer continues to have the right to permanently replace economic strikers, once the strikers who have been replaced end their strike, the employer must maintain their names on a preferential rehiring list and offer them
the first available job for which they qualify upon departure of the replacements. This requirement does not apply when the strikers end their strike and offer to return to work at a time when they have taken substantially equivalent employment with another employer. Nor is the employer required under the Laidlaw rationale' to reemploy strikers who offer to return to work at a time when their employer can show "legitimate and substantial business justifications" for refusing to reemploy them in their now vacant jobs. NLRB v. Fleetwood Trailer Co., Inc., 389 U.S. 375 (1967); NLRB v. Great Dane Trailer., 388 U.S. 26 (1967). Such a situation would arise when, for example, a bona fide work force reduction occurs due to a decline in business prior to the strikers' ending their work stoppage and offering to return to work unconditionally. Compliance with the Laidlaw rule by an employer is complicated by the fact that neither the Board nor the reviewing federal courts, including our own Eighth Circuit. have ever definitely held how long unreinstated strikers remain employees in lieu of job vacancies. Llltle Rock Airmolive, Inc., v. NLRB, 455 F.2d 163 (8th Cir. 1972). Consequently, if a strike replacement quits the employer several years after the strike has ended. is the employer still under a dUty to contact an unreinstated striker before he can hire a new employee to fill the job? The Board has adopted the unpredictable procedure of answering this ques路 tion on a case-by-case basis. Economic strikers, even if permanently replaced during the course of a strike, are statutorily eligible to vote in a representation election conducted within 12 Continued on page 104
, James W. Moore Is a paltner In the Uttla Rock law firm of Smith, Wlll/ams, Friday, Eldredga & Clark and Is angaged In tha practice of labor ralatlons law. He was e law clark to tha former Chlaf Judga of the United States Coult of Appeals for tha Eighth Clrcuh, Tha Honorabla Pat Mahaffy; and, prior to that, was an attorney with tha NatIonal Labor Ra/al/ons Board. He Is a member of tha Bars of tha States of Arkan路 sas, louIsiana, and Tennessee and a graduata of the Tulane School of Law.
July 1976/Arkansas Lawyerl103
Strike. Continued from page 103
months of the commencement of the strike. 29 U.S.C. §159(c)(3). B. Unllir Llbor Proctlce Strlkl' Unlike an economic strike, an unfair labor practice strike is concerted activity in protest of an employer's violation of his employees' Section 7 rights. Typical unfair labor practice strikes would include strikes to protest an employer's discriminatory discharge of an employee for engaging in protected union activities or a work stoppage to complain of an employer's failure to bargain in good faith during contract negotiations. While a strike for economic objectives during collective bargaining is economic in nature, the employer cannot as a result thereof refuse to continue to bargain collectively with the labor union unless a bargaining impasse exists - that is. a bargaining stalemate following good faith negotiations over all mandatory bargaining subjects. If the employer does refuse to continue to bar~ gain in good faith with its employees' labor union after an economic strike occurs, the economic strike then becomes converted to an unfair labor practice strike, Conversion of the economic strike to an unfair labor practice strike confers upon the strikers the right to displace strike replacements upon the termination of their strike provided they have not disqualified themselves from reinstatement by intervening strike misconduct. An unfair labor practice striker who conducts his strike activity in a lawful manner has a right to reinstatement upon termination of his strike and notice to his employer of unconditional offer to return to work. In the event that the employer has hired strike replacements, he must terminate them to the extent necessary to reinstate the returning strikers to their same or substantially equivalent jobs. If the employer does not reinstate the unfair labor practice striker upon notice of his unconditional offer to return to work, he is entitled to back pay from the day on which the employer makes an unconditional oHer of reinstatement. Unlike economic strikers who retain their eligibility for voting in a representation election for only 12 months after commencement of a strike, unfair labor practice strikers. and not their temporary strike replacements, are the only eligible voters in any Board conducted represen~ tation election held after a strike has occurred. V. PROHIBITED STRIKES Not all strikes or concerted activity are protected. The right to strike as pre~ 104/Arkansas Lawyer/July 1976
served in Section 13 of the NLRA (29. U.S.C. 1163) is subject to the limitations fashioned by the Board and courts denying reinstatement to strikers who en· gage in strikes conducted for an unlawful object or in an unlawful manner. NLRB v. Wllhlngton Aluminum Co., 370 U.S. 9 (1962); NLRB v. Driver. Locel Union, 362 U.S. 274 (1960).
A. Strike. For Unllwlul PU'JlOI8. Examples of strikes for illegal objectives would be a strike to require an employer in a Right-te-Work state to grant a union shop clause in a collective bargaining agreement or a jurisdictional strike to cause an employer to assign work to a particular union craft in violation of Section 8(b)(4)(D) of the NLRA. 29 U.S.C. 1158(b)(4)(D). A strike in breach of a labor union's "no-strike" obligation in a collective bargaining agreement which provides for binding arbitration of all contract grievances is also an unlawful strike objective. When employees strike for unlawful purposes (rights not protected or specifically prohibited under the NLRA). they are not engaged in protected, albeit concerted activity. and are subject to disciplinary action by their employer. Likewise, where governmental em· ployees are involved who are not covered by the NLRA. any strike by the governmental employees is for an unlawful objective. In City 01 Fort Smith v. No. 38, AFL-CIO, 245 Ark. 409. 433 S.W.2d 153 (19681. the Arkansas Supreme Court held that while municipal employees have the right to belong to a labor union under Amendment 34 to the Arkansas Constitution, they do not have the right to compel collective bargaining of their employer and any strike against the government for this purpose is unlawful. (Citing: Potts v. Hly', 229 Ark. 830. 318 S.W.2d 826 (1958) ~ However. the Arkansas Supreme Court did not reverse that portion of the Chancellor's decree which held. in effect. that the strikers should be reinstated because they were discharged by their employer for exercising their right to belong to a union and not for engaging in illegal strike activity. The caveat for the governmental employer inherent in the Fort Smith case is that the employer must be careful not to predicate any termination or discipline of the striking governmental employee upon his apparent constitutional right to organize and belong to a labor union. Of course, whether governmental employees are lawfully terminated or otherwise disci lined for engaging in illegal strike activIty or whether they are unlawfuily disciplined on accounl of rightful union affiliation is a Question of fact.
(See unreported opinion of United States District Judge Garrett Thomas Eisele in Looney et al v. City 01 Little Rock Water Deplrtment, et ai, E.D. Ark. 1970. Docket No. LR-70-C-33. wherein the striking municipal employee was ordered reinstated because it was found that the decision to terminate was grounded upon the employee's prior union membership and not because of his subsequent strike action which occurred after the employer's decision to terminate the employee was formulated. Compare with the contrary result in United States District Judge Henley's unreported opinion in Joe Par."ns, et al Y. City 01 Selrcy Slnllation Department, e! II, E.D. Ark. 1972. Docket No. LR-72C-222. wherein the Court concluded Ihat notwithstanding the City officials disapproval of the sanitation workers' organizational efforts, the preponderance of the evidence did not show that the strikers' discharge was motivated by the City's disapproval of their collective bargaining efforts but as a result of the violation of valid work rules by one of the strikers and the engagement in an illegal strike by the others in protesl of this discharge ~ The legality of the strike objective is sometimes a close question on which not even the Board and Courts all times agree. In a current Arkansas case now pending before the Board. several of the employees in a garment plant struck the employer during the noon hour of the work day in protest of the employer's prior termination of a supervisor for cause. The employees left work without notice to their supervisors in violation of a plant rule. For this reason and relying upon the coun-determlned principle that concerted activity is unprotected when conducted for the Pu'JlOse of influencing management's prerogative to hire and discharge supervisory personnel. the employer declined to reinstate the strikers upon receiving notice of the termination of their strike unless the returning strikers agreed to accept a written warning of their violation of plant rules and further agreed not to repeat the violation in the future. (See e.g.• NLRB v. Ford Redlo & Mlcl Corp., 258 F.2d 457 (2nd Cir. 1958) ~ Refusing to follow the Ford Redlo principle. the 26th Regional Office of the Board has issued a complaint against the employer alleging that in essence that the employees' strike in protest of the supervisor's discharge was protected concerted activity. The Board contends that the employer could attach no conditions to reinstatement of the strikers, not even the minor disciplinary warning. Therefore, the Board argues, the employer is liable for back pay to the strikers from the time the strikers ter-
¡.
to
minated their strike and offered to return to work until the employer reinstated them under protest in order to minimize any potential back pay liability. The protected concerted activity and back pay issues will not be settled until the Eighth Circuit Court of Appeals ullimately reviews any Board decision upholding the position of the Regional Office. B. Strikes Conducted In An Unlawlul Manne' A strike to protest an employer's bad faith refusal to recognize and bargain with the employees' collective bargaining agent is for a lawful objective (protest of the employer's unfair labor practice). The strikers are ordinarily entitled to reinstatement upon termination of their strike. However, the unlawful seizure and retention of a company's buildings in the course of a sit-down strike caused the strikers to forfeit their right of reinstatement. Their consequent discharge by their employer for participating in this illegal strike misconduct was grounds for their discharge. NLRB v. Fanst..1 Metallurgical Corp., 306 U.S. 240 (1939). The Supreme Court made it plain that strikes conducted in a violent or unlawful manner caused the strikers to lose their NLRA protection, supra at 255-256: "Congress also recognized the right to strike, - that the employees could lawfully cease work at their own volition because of the failure of the employer to meet their demands. Section 13 provides that nothing in the Act "shall be construed so as to interfere with or impede or diminish in any way the right to strike." But this recognition of "the right to strike" plainly contemplates a lawful strike, - the exercise of the unquestioned right to quit work. As we said in National Labor Relations Board Y, Mackay Rsdlo & Tel811,aph Company, 304 U.S. 333, 347 [2 LRR Man. 610, 6151 .. if men strike in connection with a current labor dispute their action is not
to be construed as a renunciation of the employment relation and they remain employees for the remedial purposes specified in the Act". There is thus abundant opportunity for the operation at section 2 (3) without construing it as countenancing lawlessness or as intended to support employees in acts of violence against the employer's property by making It impossible for the employer to terminate the relation upon that independent ground. Here the strike was illegal in its inception and prosecution. As the Board found, it was initiated by the decision of the Union committee "to take over and hold two of the respondent's 'key' buildings", It was pursuant to that decision that the men occupied the buildings and the work stopped. This was not the exercise of "the right to strike" to which the Act referred. It was not a mere quitting of work and statement of grievances in the exercise of pressure recognized as lawful. It was an illegal seizure of the buildings in order to prevent their use by the employer in a lawful manner and thus by acts of force and violence to compel the employer to submit. When the employees resorted to that sort of compulsion they took a position outside the protection of the statute and accepted the risk of the termination of their employment upon grounds aside from the exercise of the legai rights which the statute was designed to conserve," It is well-settled that a total cessation of work and walk-out of an employer's workforce for economic objectives during collective bargaining is protected against employer interference under sections 7 and 8(a)(1) of the NLRA, 29 U.S.C. §§ 157 and 158(a)(1). However, employees who choose to "partially strike" their employer for a lawful economic purpose by staying at their work stations and engaging in deliberate "slow-downs" and staging intermittent, one-day walk-outs are unprotected and subject to discharge. NLRB Y. Blades MIg. Corp., 344 F.2d 998 (8th Cir. 1965). A strike may also be lawful in objective and generally conducted in a nonviolent manner so as not to disqualify all of the participating strikers from reinstatement upon its termination. However, if individual strikers engage in serious acts of picket line or other strike misconduct, the employer may refuse to reinstate them. Assaults and threats of violence against non-strikers, malicious destruction of property, and "night riding" against non-strikers are but a few of the more typical types of strike misconduct Which, if serious enough in the eyes of the Board, will disqualify the striker from consideration for reinstatement. However, minor acts of violence do not deprive strikers of the right to reinstatement. See e.g., NLRB v. Wallick &
Schwalm Co., 198 F2d 477 (3rd Cir. 1952). Whether acts of violence are minor or serious are questions of fact for the Board to consider in the first instance subject to the substantiality of evidence ru Ie upon appeal. State law is generally inapplicable in defining the rights of strikers which was preempted by passage of the NLRA. State law is controlling only where local governmental employees who are specifically excluded from NLRA coverage or the State's right to control violence under its reserved constitutional police power is involved. See Youngdahl v. Ralnlalr, supra. In this area, Arkansas does have a criminal anti-strike violence statute, Ark. Stats. Ann. 181-207. The statute makes it a felony punishable by up to two years imprisonment for any person acting in concert with others at the scene of a labor dispute to prevent or attempt to prevent by force or violence non-striking employees from working. The statute has rarely been invoked. Its lack of use as a means of combating strike violence is probably attributable to the understandable but regrettable fact that individual victims of strike violence are reluctant to come forward and file criminal charges against the perpetrators because they fear retaliatory action.
VI. CONCLUSION A strike or other concerted labor protest sets in motion a complex set of legal rules governing the rights of the strikers and their employer. The right to strike continues to be organized labor's primary collective bargaining weapon in the private sector under the NLRA when lawfully exercised. Its use for collective bargaining leverage by public employees is becoming increasingly evident throughout the country in recent months despite its continued illegality under local state law. This increasing disregard for the rule of law by employees in the public sector should not go unnoticed by Congress in the consideration of the pending legislation designed to grant state and local public employees collective bargaining rights similar to those enjoyed by employees covered by the NLRA. It is this author's view that the federal Congress should not preempt this field mainly because there is no evidence that strikes by state or other local public employees burden interstate commerce. And, this was the only constitutional rationale for Congress' regulating labor disputes in private industry. It is submitted that the states, and not the federal government. should be allowed to continue to regulate the employment conditions and rights of its own employees and those working for its political subdivisions. J-~~
July 1976/Arkansas Lawyer/lOS
LAW SCHOOL NEWS Assistant Dean J. Steven Clark Associate Dean David R. Hendrick
SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETTEVILLE
In his dedicatory address for the new Arkansas Supreme Court Room (this issue. The Arkansas Lawyer, at pa'ge 91). Dr. Robert A. Lellar IS critical of the American Law Schools' recruitment of the law students. In the foreword to the 1976 Law Graduates Brochure, Dean Wylie Davis of the School of Law, University of Arkansas, has a more optimistic attitude towards post-graduate placements.
THE DEANS' MESSAGE I am pleased to join in this brochure with Dean David R. Hendrick of UALR in presenting to the Bar and other prospective employers the 1976 graduates of our two Arkansas law schools. In terms of qualification for entry into the profession. including for many a significantly expanded law-school orientation in practical lawyering skills, these graduates are the best we have ever turned out. We are proud of them. But they are also the most numerous group in our history. Many of them. in a crowded profession, will face delay and in some cases disappointment in channeling their careers as lawyers. Moreover. as I wrote in last year's brochure. the placement frustration will probably get worse before it gets better. I beseech the thoughtful and creative help of the practicing Bar and the leaders of our Arkansas communities - many of which need to attract young lawyers - toward the successful management of this problem. Certainly I make no brief for the proprietary. profiteering law schools that have multiplied recently in other parts of the country. But I reject the charge, while respecting the views of those who make it, that our better law schools and law faculties generally have been ethically remiss and largely motivated by self-service in producing more graduates than the profession can easily and quickly absorb. In our State of Arkansas, has "Land of Opportunity" become an empty slogan? Or is it SO narrow as to exclude a fair opportunity for professional education? To me it would be sheer arrogance for the University of Arkansas deliberately to bar from a good legal education large numbers of our citizens. well-qualified educationally and otherwise. who aspire to compete lor places in the legal profession. no matter how
severe the competition may be. Is there any question that some of our most distinguished lawyers, jurists, and law teachers today would nol be lawyers, jurists. or law teachers at all if the law schools had been closed to relatively undistinguished college students and testscorers two or three generations ago? At the time of application for law school. there is no way - and I repeat - no way to select with anything approaching prescient accuracy those who will most honor our profession by their own lives and careers. The post-graduate placement problem has been obvious for some time. We are all attentive to it and "worried" about it. We are even wrestling with it. There is, however, a serious risk of self-fulfillment in constant public flagellation of the problem, with dire forecasts of a lugubrious, mass paranoia among embittered young law graduates. Doomsday thinking is often contagious but seldom construction. Instead, I would urge the law schools and the Bar to accept this challenge with all the resourcefulness we can muster, and with a spirit of optimism. At this writing. in early January. 1976. signs of a receding economic recession are the strongest in more than a year; and the stock market is performing with gratifying bullishness. Lawyers and law firms in Arkansas and elsewhere in America, I believe, are at the threshold of a major upsurge in the demand for legal services. In my judgment, established lawyers and others who hire new lawyers can and should be bullish in their recruitment this year.
Wylie H. Davis Dean. School of Law University of Arkansas. Fayetteville
106/Arkansas Lawyer/July 1976
J
SCHOOL OF LAW, UNIVERSITY OF ARKANSAS AT LITTLE ROCK NEWS RELEASES
University of Arkansas at Little Rock News Bureau 568-2200 Jerol Garrison For release Sunday, April 4, 1976
DEAN WALSH Robert K. Walsh, a professor of law at Villanova University. Villanova. Pa., has been appointed dean and professor of
NEW LAW SCHOOL DEAN SELECTED
law of the University of Arkansas at little Rock Law School. UALR Chancellor G. Robert Ross announced. He will begin his new Job June 15. Walsh. 33. is a graduate of Harvard Law SChool and was associated with the Los Angeles law firm of McCutchen. Black, Verleger and Shea. primarily in litigation, for three years before joining the Villanova Law School faculty in 1970. He became a full professor in 1973. The Law School, located downtown in the Arkansas Bar Center. came under UALR's Jurisdiction last July 1 after operating for the 10 preceding years as a division of the University of Arkansas Law School at Fayetteville. David R. (Sandy) Hendrick, Jr. has been acting dean. The Law Schooi has seven full-time and four part-time faculty members. Spring enroliment was 273, of which 65 were enrolled in the day classes that
were started last fall Chancellor Ross indicated that plans call for an enrollment growth of 450 to 500 before levelIn9 off in three or four years. Walsh is married and has four children. A native of Nebraska. he was graduated first in his class at Daniel Murphy High School at Los Angeles and received a bachelor's degree summa cum laude from Providence (R.I.) College. He was on the staff of the Harvard Journal on Legislation while at Harvard. Walsh's principal teaching assignments have been federal courts, administrative law, conflict of laws and constitutional law. He has been chairman of the Villanova Law School Faculty Hiring Committee three years and is the School's representative to the faculty Senate of the University. The executive committee of the student government of the Law School has eiected Walsh as' its faculty advisor for five years.
University of Arkansas at Little Rock News Bureau 568-2200 Jerol Garrison For release May 3, 1976 BOGLE-SHARP AWARD WINNERS David R. (Sandy) Hendrick, Jr., acting dean of the University of Arkansas at little Rock Law School, presents the annual 5150 Bogle-Sharp Award of the Arkansas Bar Foundation to Robert J. Govar (center) and Robert Wellenberger in a ceremony at the Arkansas Bar Center. They received the award for being voted by their classmates as the most likely members of their class to succeed in the general practice of law. Both were graduated recently by the Law School. Govar lives at Syivan Hills and is on the staff of the Sixth Judicial District Public Defender's Office at Little Rock, Wellenberger has opened a law practice at Monticello, his hometown. !J--... July 1976/Arkansas Lawyerl107
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Edltor's Comment: AEGIS is a feature of the Arkansas Bar Association's educatlonal program con路 cernlng docket control and other areas of high fisk expeflence In profeSSIonal liabIlity cases.
SAFEGUARDING YOUR PROFESSIONAL FUTURE
Mistakes Are Like Chickens, They Come Home to Roost! the problem
An insured attorney represented a poultry breeder being sued for damages in the amount of $65,000 for allegedly selling inferior stock to a customer. The attorney failed to file an answer on time and default judgment resulted in the amount of $80,000, including interest. Having realized the time factor on the day default was rendered, the insured attorney took immediate action to have the default vacated. The trial judge refused to set the default aside. The case was appealed, but the trial court action was upheld. Further appeal was denied.
the result
The client initiated a malpractice suit against his attorney for failure to file a timely answer resulting in an award far in excess of the actual damages. Though the client acknowledged responsibility in the underlying case, he took the position that had the case not gone into default, the existing damage wouid have only been $25,000. The attorney became liable for the full loss assessed against his client as a result of failing to act promptly. Settlement was made through the attorney's liability insurance carrier for $80,000 less the $25,000 acknowledged by the insured's client.
advice
Almost 50% of all legal malpractice claims stem from failure to act within a certain time period. What hurts more-such claims are not truly "professional" errors-just the result of insufficient attention to the everyday requirements of operating a business office. Good office procedures incorporate all time limits in a diary or tickler system, and a periodic review of all cases.
July 1976/Ar1<ansas Lawyer/109
FALL LEGAL INSTITUTE SEPTEMBER 16-18, 1976 CAMELOT INN LITTLE ROCK, ARKANSAS
Arkansas v. Oklahoma State Septem ber 18th Memorial Stadium, Little Rock 110/Arkansas Lawyer/July 1976
CODE Of PROfESS'ONAL RESPONS'S'L TY CANON 1 A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession ETHICAL CONSIDERATIONS EC 1-1 A basic tenet of the professional responsibitity of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence. Maintaining the integrity and improving the competence of the bar to meet the highest standards is the ethical responsibility of every lawyer. EC 1-2 The public should be protected from those who are not qualified to be lawyers by reason of a deficiency in education or moral standards or of other relevant factors but who nevertheless seek to practice law. To assure the maintenance of high moral and educational standards of the legal profession, lawyers should affirmatively assist courts and other appropriate bodies in promulgating, enforcing, and improving requirements for admission to the bar. In like manner, the bar has a positive obligation to aid in the continued improvement of all phases of pre-admission and post-admission legal education.
DR 1-101 Mllntllnlng Integrity Ird Competence of the Lagll Profession. (a) A Ilwyer I. subject to dloclpline II he hal made I mltlrllny flllB Illtement In, or if he hi' diliberlteIy filiad to dlocloll I mlterill foct reqUBltad in connection with, hi. applleltlon for admlâ&#x20AC;˘â&#x20AC;˘lon to the blr. (b) A Ilwyer thlU not further the Ipplicltlon for admlllion to the bar of another per.,n known by him to ba unquaHfiad In reapect to charoctlr, educltion, or other rolevlnt Ittrlbuteo DR 1-102 Mloconduct. (I) A lawyer IhaU not:
EC 1-3 Before recommending an applicant for admission. a lawyer should satisfy himself that the applicant is of good moral character. Although a lawyer should not become a self-appointed investigator or judge of applicants for admission, he should report to proper officials all unfavorable information he possesses relating to the character or other qualifications of an applicant. EC 1-4 The integrity of the profession can be maintained only if conduct of lawyers in violation of the Disciplinary Rules is brought to the atlention of the proper officials. A lawyer shou Id reveal voluntarily to those officials all unprivileged knowledge of conduct of lawyers which he believes clearly to be in violation of the Disciplinary Rules. A lawyer shou Id, upon request, serve on and assist committees and boards having responsibility for the administration of the Disciplinary Rules. EC 1-5 A lawyer should maintain high standards of professional conduct and DISCIPLINARY RULES (1) Violate I DlocipUnary Rule. (2) Circumvent a Dlocipllnary Rule through octlonl of lnother. (3) Engage In Ulegll conductlnvolvlog morll turpitude. (4) Englge In conduct involving dllhone.ty, frlud, deceit, or mlorepre18ntltlon. (5) Engege In corduct thlt I. prejudlelll to the admlnl.trltlon 01 JUI-
tlce. (6) Engage In any other conduct that adver.ly rofleet. on hll fltnell to procticB Ilw. DR 1-103 Dloclosuro of Information to Authorities.
should encourage fellow lawyers to do likewise. He should be temperate and dignified. and he should refrain from ali illegal and morally reprehensible conduct Because of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude. EC 1-6 An applicant for admission to the bar or a lawyer may be unqualified. temporarily or permanently. for other than moral and educational reasons, such as mental or emotional instability. Lawyers should be diligent in taking steps to see that during a period of disqualification such person is not granted a license or, if licensed, is not permitted to practice. In like manner, when the disqualification has terminated, members of the bar should assist such person in being licensed, or, if licensed, in being restored to his full right to practice.
(a) A Ilwyer poIlIl.lng unprivileged knowledge of I violltlon of DR 1-102 shall report such knowladge to a tribunal or other authority empowered to Inve.tlglte or act upon auch vioIition. (b) A lawyer poIlIl.lng unprivileged knowladge or evidence concerning lnother Ilwyer or e judge theU reveal fully .uch knowledge or evidence upon proper request of a tribunal or other luthorlty empowered to Inveltlglte or act upon the conduct of Ilwyero or judgea. ~
,
(EDITOR'S NOTE: During the pest year, we have published four "Ethics" quizzes In The Arkan.l. LaWYlr. By Per Curiam No. 5-0161, dated February 23, 1970. the Arkansas Suprema Courladopted the Coda of Professional Responsibility as tha standan:! of conduct for members of/he Arkansas Bar. With this Issue, we begin the Cannons of Ethics and related DIsciplinary Rules. To the extent possible, the Ethical Considerations will also be published.)
July 1976/Arkansas Lawyer/l11
BACKGROUND AND OPERATION of the NATIONAL ENVIRONMENTAL POLICY ACT by Robert H. Marquis
I. INTRODUCTION: THE DEVELOPING CONCERN WITH ENVIRONMENTAL PROBLEMS The year 1970 marked the beginning of a new legal era in the Nation's approach to environmental problems. Such problems were not, of course. previously ignored. Pollution issues have long been dealt with by the courts in cases involving such traditional approaches as trespass. liability without fault under the doctrine of Ryland, Y. Fletcher, and injunctions to abate nuisance. laws establishing national parks. national forests. and wildlife refuges have been on the
statute books for years. A statute regulating discharges into navigable waters and their tributaries was enacted in 1899. Other statutes of later but pre1970 vintage spelled out a Federal concern with air and water pollution and took steps towards dealing with problems in these fields, to a large extent through Federal loans, grants, and
other assistance to States and their agencies and subdivisions. There were other pre-1970 Federal statutes which related to environmental matters in various ways, as well as a Federal common law of interstate nuisance which has recently exhibited a considerable degree of continuing vitality. During the 1960's, however, public concern with environmental problems grew apace. The senate Interior Committee, in its 1969 report recommending enactment of the National Environmental Policy Act, suggested two reasons for this concern: First, the evidence of environmental mismanagement is accumUlating at an ever Increasing rate as a result of population growth. increased pressures of a finite resource base, and advancing technological development which have enlarged man's capacity to effectuate environmental change. Second, the American people - as a result of growing affluence, more leisure time, and a recognition of the consequences of continuing many present environmental 112/Arkansas Lawyer/July 1976
trends - are placing a much higher value on the quality of the environment and their surroundings than ever before. (S. Rep. No. 91-296, 91 st Cong.• 1st Sess. 8(1969). The National Environmental Policy Act - or NEPA, as it is generally referred to - became law on January 1, 1970. It was been followed by a number of other Federal environmental statutes, of which the following is a partial list: Clean Air Act Amendments of 1970 Water Quality Improvement Act of 1970 Fish and Wildlife Coordination Act of 1970 Resource Recovery Act of 1970 (amending the Solid Waste Act of 1965) Poison Prevention Packaging Control Act of 1970 Occupational. Safety and Health Act of 1970 Federal Water Pollution Control Act Amendments of 1972 Federal Environmental Pesticide Control Act of 1972 Noise ContrOl ACI of 1972 Marine Protection, Research and Sanctuaries Act of 1972 Coastai Zone Management Act of 1972 Endangered Species Act of 1973 Energy Supply and Environmental Coordination Act of 1974 Additional Federal regulatory legislation in such areas as coal strip mining and power plant siting has been under active consideration, and it is a sign of the times that this year's chosen question for college debaters has to do with the desirability of establishing a comprehensive system of Federal control over land use. II. SUMMARY OF NEPA A. Policy ProYlolon, The National Environmental Policy Act (83 Stat. 852 (1970). 42 U.S.C. § 4321 et. seq.) declares. in Section 101, a Federai policy of using all practicable means and measures "to create and maintain
conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans." To carry out this policy. Federal plans and programs are to be coordinated to the end that the Nation may anain six specified objectives. Five of these are cast in terms of environmental values - as. for example, the second, which speaks of assuring "for all Americans safe, heaithful, productive, and esthetically and cullurally pleasing surroundings." One, however, appears to recognize that in realizing environmental goals, economic factors cannot be disregarded; it refers to achievement of "a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities," B. "Action-Forcing" ProYllion, Section 102 is the so-called "action forcing" portion of NEPA. II directs that Federal agencies utilize an "interdisciplinary approach" which will insure that the natural and social sciences and the environmental design arts are used in all Federal planning and decisionmaking which may have an environmental impact. More specifically. it requires that agencies include in every recommendation or report "on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment" a detailed statement on: 1. The environmental impact of the proposed action. 2. Any unavoidable adverse environmental effects of the proposed action. 3. Alternatives to the proposed action. 4. The relationship - in terms of the proposed action - "between local shortterm uses of man's environment and the maintenance and enhancement of long-term productiYity.·' 5. Any "irreversible and irretrievable commitments of resources" which the proposed action will involve. The section further requires that be-
(
•
fore issuing such detailed statements Environmental Impact Statements, as they are commonly referred to - Federal agencies must obtain the comments and views of other Federal agencies having expertise in fields related to the proposed action. and of appropriate State and local agencies. (Under procedures which have been developed. this statutory requirement has been broadened to include comments by private citizens and agencies). Such comments must "accompany the proposal through the existing agency review processes."
I. I
C. Agency Procedurel What this means in practice is that an agency proposing an action which it believes covered by the Act first prepares a draft Environmental Impact Statement (EIS). It circulates the draft to Federal agencies. and to State and local agencies, as well as private organizations and individuals. which have indicated an interest or which the agency believes may have an interest in the proposal. The agency may, in addition, seek a further expression of views by holding public hearings on the proposal. After considering all comments on the proposal, the agency decides whether to go forward with it. If it decides in the affirmative, it prepares a final EIS stating the basis for its conclusions and covering in sufficient detail the five subjects specified in the statute. For the reasons indicated hereafter, such coverage will ordinarily include discussion of all critical comments on the proposal and the agency's reasons for disagreeing with them, as well as any modifications the agency may have made in the original proposal following receipt of such comments. Obviously, this is a time-consuming process which, depending on the complexity of the proposal and the extent of the opposition to it, can take anywhere from a few months to oyer a year. The rationale underlying it is that to follow the process will require that a "hard look" be taken at environmental impacts and alternatives, and, ultimately, at whether the proposed action is really justified when the economic and environmental pros are weighed and balanced against the cons. D. The Council on Environmental Qualily Among NEPA's other provisions is a
section establishing a Council on Environmental Quality (CEQ) in the Executive Ollice of the President. CEQ is directed by the statute to, among other things, "review and appraise" Federal programs and activities in light of the policies set out in NEPA, and advise the President on environmental policy matters. In carrying out the first of these functions, it has issued successive editions of detailed "guidelines" to be followed and applied by Federal agencies in carrying out their NEPA responsibilities. (While CEQ is not authorized by the Act to issue regulations, the guidelines have been regarded as for the most part binding on Federal agencies. The courts have generally accorded them respect and considerable weight in NEPA cases, although occasionally pointing out that. since they lack the status of regUlations, they do not have comparable binding effect). III. THE SCOPE OF "FEDERAL ACTIONS" UNDER NEPA NEPA requires environmental impact statements only for proposals involving major Federal actions significantly affecting the human environment. This may seem at first reading to restrict the scope of NEPA to projects undertaken directly by the Federal Government. and to render the Act of relatively small potential significance to attorneys whose practice is restricted to the representation of private parties, or even to those who may represent State or municipal governments. In fact, the scope and significance of NEPA are far wider than may thus at first appear. A. Fedarally eonltructed Projectl Which Ara Important To Other Partlel To begin with, many Federal Projects are of great interest to States, municipalities and private parties, and may be undertaken with their active support or even at their request. If the projects are challenged on NEPA grounds. they may find themselves just as actively involved in the litigation as the Federal Government or its agencies. For example, in Sierra Club VI. Froehlke, 359 F. Supp. 1289 (S.D. Tex. 1973), the United States District Court for the Southern District of Texas, following extensive hearings and the compilation of a record consisting, in the Court's words, "of thirteen bookboxes containing, by this Court's rough computation, some 240 items," issued a Wide-ranging decree enjoining construction of the Corps of Engineers' Wallisville Dam project at the mouth of the Trinity River in Texas. until full compliance with what the Court considered to be the requirements of NEPA. The decree also affected the much larger Trinity River project, which contemplates construction of 16
dams and 20 locks to create a navigable channel extending 363 miles from the Houston Ship Channel in Galveston Bay to Fort Worth. The parties to the litigation in the District Court and Court of Appeals (which reversed the District Court decision on most points, although leaving the injunctions as to both projects in effect pending the filing by the Corps of a supplemental EIS on the Wallisville project and an EIS on the Trinity project and a judicial determination of their sufficiency, Sierra Club v. Calloway, 499 F. 2d 962 (5th Cir. 1974Âť, included the environmentalist groups opposing the projects and the Secretary of the Army who would be responsible for their construction. But they also included the Trinity River Authority of Texas. the Coastal industrial Water Authority of Texas. the City of Dallas, the City of Fort Worth. and the City of Houston. These intervenors, all of which supported the projects, in reality represented not only themselves but also substantial numbers of businesses and individual citizens. B. Faderal "Actions" Directly Affecting Other Partlel NEPA applies, however, to far more than proposals for Federally constructed projects which may be of interest to States, localities, and private groups. The crucial statutory term is proposed Federal "actions", and the Federal Government acts, within the meaning of the statute, in a variety of ways. One such method of action is the making of grants and loans to State and local agencies, and in some circumstances to private parties, to help finance highways. airports, urban renewal projects, low-income housing, and the like. Another is the granting of licenses or permits for the construction of nuclear generating plants, hydroelectric projects licenses under the Federal Power Act, dredging and filling in navigable waters, and other similar activities requiring Federal approval. Still another is regulation which entails Federal approval. Still another is regUlation which entails Federal approval of railroad and possibly other types of rates of a kind which may have significant environmental effects. All of these types of Federal "actions" have been held, where significant environmental effects are involved, to be subject to NEPA. Indeed, one of the few pieces of NEPA litigation so far ruled on by the Supreme Court, had to do with action by the Interstate Commerce Commission with regard to increases in rail rates on recyclable materials as a part of a determination, in a general increase case, concerning the railroads' needs for rate increases to meet their revenue needs. See United Statal v. SCRAP, 412 U.S. 669 (1973); Aberdeen. Rockfllh Railroad v. SCRAP, 7 ERC 2009 (1975). Continued on page 114
July 1976/Art<ansas Lawyer/113
Environmental Continued from page 113
Just how far the courts go in holding that Federal involvement "Federalizes" State, local, or private action is illustrated by a few recent cases. In Scenic Rivers ASlOClatlon v. Lynn, 8 ERC 1021 OOth Cir. 1975). the Department ot Housing and Urban Development was required to consider environmental impacts and file an impact statement bafore approving the fiting by a private developer of a Statement of Record and Property Report pursuant to the Interstate Land Sales Act, which approval was necessary if the developer was to raise funds interstate in order to finance its proposed development. In Port 01 Astoria v. Hodel. 8 ERC 1156 (D. Ore. 1975), a contract entered into by the Bonneville Power Administration to supply electricity to a proposed privately owned aluminum plant was declared unenforceable until such time as an EIS had been flied and found adequate. In so holding. the Court stated that "NEPA is indeed strong medicine," and further noted: As a philosophical malter, I am deeply disturbed by the pervasive intrusion of the federal government into the private sphere which NEPA exemplifies. It is for Congress, however, and not the courts to determine such questions of national policy (p. 1160. n.1), Perhaps an even more striking example is Natural Re80urce. Defen.. Council v. SEC, 7 ERC 1199 (D.D.C.â&#x20AC;˘ 1974). The Securities and Exchange Commission was ordered in that case to comply fully with NEPA in deciding what to include in its disclosure requirements
for private corporations under the Securities Act, and to consider, in particular, whether each reporting corporation should be required to provide, for public disclosure, information as to the effect of its corporate activities on the environment. The SEC has recently indicated its intention to promulgate new regulations containing such a requirement. IV. SCOPE OF JUDICIAL REVIEW UNDER NEPA A. Procedural Compliance The scope of judicial review under NEPA is a matter on which courts disagree. The decisions are unanimous in holding that the courts may review an agency's procedural compliance with NEPA. This includes determination of whether an impact statement was necessary if one has not in fact been filed; whether a statement, if filed, has been prepared by the proper Federal officials; whether the statement is a "detailed" one within the meaning of the statute; whether it has treated adequately each of the five malters specified in the Act; and whether the final decision was made in good faith. B. Substantive Decision to Proceed The question on which there is disagreement is whether, if all procedural requirements have been met, the courts can review the agency's substantive decision to proceed with its proposal. Early cases answered this question in the negative; but, beginning with the Eighth Circuit's decision in the Gilham Dam case. Envlronmentll Dellnse Fund v. Corps 01 Engineers, 470 F. 2d 289 (8th Cir. 1972), cert. denied, (412 U.S. 931 (1973Âť. the trend has been in the opposite direction. The Court stated in the Gilham Dam Case that: Where NEPA is involved, the reviewing court must first determine if the agency reached its decision after a full, good faith consideration and balancing
of environmental factors. The court must then determine, according to the standards set forth in II 101(b) and 102(1) of the Act, whether "the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values ... " The trial court's opinion is in error insofar as it holds that courts are precluded from reviewing agencies' decisions to determine if they are in accord with the substantive requirements of NEPA. In light of our holding, there is no alternative but to subject the decision of the Corps to build Gilham Dam to review under the arbitrary and caprcious standard (pp. 300-01). The court then proceeded to uphold the Corps' decision on the basis of its review of the revised EIS for the project. At least one Circuit - the 10th - apparently holds to the view that agency decisions are unreviewable on a substantive basis, and the Supreme Court has yet to speak on the issue. V. CONCLUSION Environmental considerations are of utmost public importance. So are economic considerations - especially during a period of recession, inflation, and high unemployment. Many if not the great bulk of proposed Federal actions - inclUding those which involve Federal approval of or assistance to State, local and private projects - involve some measure of competition between economic and environmental objectives. NEPA represents a Congressional conclusion that previous decision-making was weighted too heavily in the direction of meeting economic goals, and that environmental considerations were given insufficient attention. Whether NEPA has redressed the balance in the best available way could be debated at length. It has certainly provided assurance that environmental considerations will be given attention, at Continued on page 129
Robert H. Marquis: A.B., American University; LLB., George Washington University; LLM., Georgelown University; private practice. Washington, D.C.. 1936-38: Special ANomey, Antitrust Division. U.S. Department of Justice, 1938-39; with Tennessee Valley Authority as aNomey. 1939-43. 1946-47, Assistant General Counsel, 1947-58, Solicitor. 1958-67, General Counsel 1967 until retirement in August, 1975; Professor of Law. UALR School of Law since August. 1975; U S Army servlca, 1943-46, to Captain, Judge Advocate Generafs Department, during which period was a member of the Staff and Faculty, The Judge Advocate Generafs School. and co-editor of Army textbook, "Government Contracts and Readjustment"; member of Order o/Ihe Calf and of the American, Tennessee, Knoxville (Tennessee), and Federal Bar Associations.
114/Arkansas Lawyer/July 1976
LEGAL ECONOMICS by Fran Shellenberger
YOUR OWN OFFICE STYLE MANUAL OR DO IT THE WAY SUSIE DID!
.,
Lawrence Lawyer, senior partner in the firm of Lawyer, Advocate and Lyon, was proofreading the work of the firm's new secretary, Cissy, who had been hired for the summer to assist with typing while the firm's regu lar secretaries were on vacation. The decision to hire one secretary for the summer was made after the firm's experience with the parade of temporary typists who filled in the previous summer. It was felt that one extra secretary, a top-notch typist, wou Id provide some continuity to the work product and wou Id have the benefit of a few weeks orientation with the firm's regular secretaries before being on her own. Cissy, a junior secretarial science student home from college for the summer, seemed to be just what the firm needed. Reluctantly, Lawrence called Cissy to his office. "Cissy, your typing is very nice; there's not a typographical error on any of this work. And I note that the few corrections necessary are done neatly." "Thank you, Mr. Lawyer, I'm glad you're pleased," said Cissy. "There are a few changes necessary, however," said Lawyer. "This letter for 2x4 Lumber Company should be done on that company's stationery. You see, our firm serves as the legal department for the company, so we use their letterhead instead of ours on correspondence for them. I thought Susie would have explained that to you." "No sir, she didn't. There were so many things to finish before she left, I guess she just didn't get around to everything."
"And these corporate minutes. They need to be typed on some specially punched paper which fits into the company's corporate record book. I'm sure Susie's got a supply of their minute paper somewhere." "This petition - it should be done on' the paper that has the black ruled line about one inch from the margin on each side; but I guess it'll be OK to use this. However, you'll need to add a column of parentheses to separate the parties' names from the name of the pleading and you'll have to type the parties' names' and the name of the pleading on the back of the last page, you know, do it the way Susie did." "Oh yes, she did tell me about that; I guess there's just so much to remember that I forgot. I'll fix this pleading up today because it won't have to be retyped, and I'll retype the rest of it tomorrow." The next morning Cissy brought the retyped letter and corporate minutes to Lawrence for signature. "Mr. Lawyer," she said, "typing for a law office is completely different from anything I've had in school. Isn't there some kind of a legal secretaries' manual here in the office that I can study? I won't be much help to you this summer if I keep using the wrong paper and form for your work."
"Cissy, there are a couple of legal secretaries' manuals in our library and I'm sure you'll find them helpful in a general way, but I'm not sure they will be very helpful to you here because, like most lawyers, we have our own way of doing things. However, you've given me an idea. There's no reason we can't creale
our own office style manual using one of the manuals in the library as a guide, and we can do it this summer while you're here to help. We'll try to include instructions for the type of paper and the other things peculiar to law offices in the instructions for your dictation, and you can begin a notebook of the various documents you type," said Lawrence, eager to get on with the project. ''I'll ask the other lawyers and their secretaries what they think about the idea." Lawrence had learnac from experience not to try anything new around the office without first mentioning it to Anthony Advocate, his partner, and Anthony's secretary, Audrey. He knew that once Audrey got the idea, the office style manual was as good as done. Audrey would know the practical problems and could help decide what should go into the manual. "Why do you want a style book?" queried Anthony. "Let me answer that for you, Mr. Advocate," said Audrey. If we'd had a style book last summer, our temporary secretaries wou Id have been a lot more help to us and I wouldn't have spent so much time training them," she said. "We have Cissy here for the su mmer and we couldn't ask for a better-trained and skilled employee," added Lawrence. "But even Cissy's excellent typing isn't getting the job done because she is untrained in legal document preparation. They don't teach that in school," he said. "Well. all right, but what are you going to put in the book?" Anthony Continued on page 116
July 1976/Arkansas Lawyer/115
Economk::s Continued from page 115
asked. Cissy responded quickly, "I'd want the first thing in the book to be samples of the various types and sizes of paper we use and the purposes of their use." "I have a lot to offer to the book," said Louise, the firm's specialist with automatic typewriters. 路'I've been telling you how important it is to standardize our work for the automatic typewriter. I'll want to include instructions for margins, tabular stops, line spacing, quotations, outlining, and that type of thing for sure," "I'm not sure I'm interested in standardizing our work," said Anthony. "What is your reason for this?" he asked Louise. "It's faster to produce a finished page if the typist doesn't have to rearrange the format according to the way each lawyer wants it done. She can spend more time on the content of the document and helping the lawyers in other ways if the format for documents is standard for all the lawyers in the office," she said. "You've just about convinced me," said Anthony, "but do we have time for this?" "We have to train Cissy this summer," said Lawrence. "We'll let Cissy and Audrey get the manual started while Cissy is learning. Susie can take over Ciss{s training when she gets back from vacation," he added.
路'1 wonder if we could include copies of statutes and Rules of Practice and Procedure," said Anthony, warming to the cause. "Every time we prepare a pleading in United States Tax Court we have to check the ru les for the form, style and number of copies. It would sure be handy to have a copy of the Rules in our manual," he added. "I can begin our Office Style Manual right now," said Louise. "I'm working on a fairly complicated set of interrogatories for Mr. Lawyer today. I'll make an extra copy of enough pages to illustrate our right and left margins, top and bottom margins, tabs and line spacing. I'll include pages that show the way we set out subparagraphs and quotations. The copy in our manual can be on the same paper we use for pleadings. Susie's the one who taught me how the firm prepares Interrogatories, so we can call au r book, "Do it the Way Susie Did!" "Say," Lawrence interrupted, "Whose idea was this Office Style Manual, anyway?" Here's how to compile your own office style manual.
1. Gather (in a 3-ring notebook) a sample of every type of document prepared in your office. Your list will be something like this: A. Pleadings (include every type of pleading prepared in your office and categorize them by court of jurisdiction). B. Letters (in addition to the firm's ordinary correspondence, include copies of any special forms you use for clients, title opinions, protest letters and others). C. Briefs O. Real Estate Documents E. Wills & Trusts F. Incorporations G. Probate Documents
2. Gather a sample of every type of paper used in your office in the preparation of the above documents and add them to the 3-ring notebook. Include samples for originals, copies, file copies, your firm letterhead 1st 2nd pages, Will paper, minute paper, ruled paper, draf1 paper, printed forms, and plain bond in various qualities and sizes. 3. Make a list of the information you need for the secretary's use at the typewriter and attach the list to each document in your manual or note it on the back of each page. Your list will be something like this: margins, tabs, paper size, paper type, quotations, indentations, citations, outtining format, pagination, etc. 4. Prepare a chart from the items you've gathered. listing the various documents and the pertinent information for their preparation as shown in accompanying chart, "Guideline for Creating Your Own Office Style Manual". Once you've gathered the sample documents, paper and forms into a 3-ring notebook and noted the pertinent information for their preparation on the chart, analyze the chart with the goal of standardizing the preparation of your office paperwork. Possibly you will be able to eliminate several types of paper or decide on a standard format for letters and documents prepared for your firm rather than having the secretaries prepare them in different ways for different lawyers. Include these new standards gained from your analysis as a part of your office style manual. Tear out this article and hand it to your secretary. Tell her you'd like her to create an office style manual for your office so that others can prepare legal documents "the way Susie does." J-~
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116/Arkansas Lawyer/July 1976
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Guideline for Creating Your Own Office Style Manual Name of Document Petition
Sample at Page No.
Paper Size
Paper Type
Margins Right
Left
Top
Bottom
Tabs
Prerecorded Form No.
Other· •Add columns for Q oolatlon.,
Answer
Indentation, Citations, Statistical
Motion
Material,
Judgment
Format, Page Numbering, etc., if desired
Outlining
Letters Opinion Letter Protest Letter Letter to More Than One Addressee Briefs 08eds Wills First Pages Attestation Proof of Will Trusts Title Pages Cover Pages Table of Contents Preprinted Pages Signature Pages Instructions for Binding <...
c:
-<
Probate Letters Testamentary Notices Orders Incorporation Art. of Inc. Minutes Sub. Agreements Stock Certificates
PRACTICE AND PROCEDURE FOR HANDLING CLAIMS UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, AS AMENDED by Eldon E. Fallon IN1ll0DUCTION As originally enacted in 1927. the Longshoremen's and Harbor Workers' Compensation Act was primarily designed to cover longshoremen and harbor workers injured or
killed white perform log work aboard vessels moored in navigable waters. By various legislative extensions. the provisions of the Longshoremen's Act have been generally extended to other groups of workers, including those covered by the District of Columbia's Workmen's Compensation Act, as well as those eligible for compensation coverage un-
der the terms of the Defense Base Act,' the
War Hazards Compensation Act,2 or under the provisions of the act relating to civilian employees of nonappropriated fund instrumentalities of the Armed Services. 3 Since 1953, oil field workers injured or killed while engaged in operations connected with the development of natural resources on the Outer Continental Shelf are covered by the Longshoremen's Act. 4 More recently, mine workers stricken with black lung disease (pneumoconiosis) have been inCluded within the benefit structure of the Act. 5 It is now estimated that approximately one million workers in private enterprise are covered under the provisions of the Longshoremen's Act and its various extensions.6 On November 27, 1972, the Longshoremen's Act was amended. These amendments, among other things, e)(panded the jurisdiction of the Act, altered the level of benefits and overhauled the procedure for formal hearings and appeals. The objective of this article is to review some of the significant changes brought about by the 1972 amendments and to consider their effect on the procedure for handling claims under the Act. I. THE AMENDED ACTSIGNIFICANT CHANGES ADMINISlllATION OF THE ACT The Act is administered by the secretary of Labor acting through the Bureau of Employees' Compensation. Territorial juriSdiction is exercised by deputy commissioners presiding over thirteen compensation districts established by law. The 1972 amendments separated the functions of administration from adjudication. Deputy commissioners have been relieved of their role as hearing officials and charged with administering the com-
pensation system. The deputy commissioner and his staff provide assistance in processing claims, assure that the injured employee receives proper medical attention and rehabilitation services and conduct informal and prehearing conferences. The formal hearings are presided over by an administrative law judge who is home based in Washington, D.C., but travels to the location selected as the site of the hearing. JURISDICTION The test for jurisdiction under the 1972 Amended Act is a three part requirement: (1) the employee must be engaged in "maritime employment"; (2) the employer must have employees engaged in maritime employment; and (3) the injury must occur upon navigable waters of the United States or adjoining land areas customarily used in loading, unloading, repairing or building a vesset.7 Maritime Employment The difference between the old Act and the 1972 amendments is the addition of the requirement that an employee be engaged in maritime employment and, of course, the geographical expansion of coverage inland. Un路 der the old Act, only the employer was required to be involved in maritime employment or activity. The requirements for the Injured employee under the old Act were that he be injured or killed upon navigable waters and not be a master or member of the crew of a vessel. Under the 1972 amendments, the injured or deceased employee must have been engaged in maritime employment at the time of his injury or death.a If the injured or deceased employee was so engaged, his employer will have had at least one employee in maritime employment and, as such, will qualify as a maritime employer.9 Thus, the status of both the employee and employer is dependent on the employee's being engaged in maritime employment. The unanswered question, at least at this point in time, is, What is "maritime employment"? Maritime employment on the part of the employee, though not essential under the old Act, was nevertheless interpreted, or at teast discussed, by the courts. For example, in Peter Y. Arr~.\O a crane operator was dismantling a bridge that crossed over navigable water. The crane toppted over and the opera路
tor fell into the water. The court, In dicta, concluded that dismantling a bridge over navigable water could affect passing vessels and, therefore, the crane operator was involved in maritime employment because "his activities were directly concerned with a maritime purpose." In Nalco Chemtcal Corp. v. Shea,ll, a salesman for a chemical company lost his life when his plane crashed in the Breton Sound area off the coast of Louisiana while en route to an offshore drilling platform. The court, noting that the decedent's .. regular duties consisted in large part of traveling directly to offshore drilling platforms that he could only reach by boat or seaplane," concluded that the decedent was engaged in whole or in part in maritime employment. Prior to 1972, COUI1S generally broadly con路 strued the phrase, "maritime employment." Nevertheless, the significance of the term was not as great as it is presently. If the post-amendment cases follow the approach used in Peter Y. Arrien and Nak:o Chemtcal Corp. Y. Shea, it would appear that the phrase "maritime employment" will be broadly construed. There have not as yet been many post-amendment decisions on this issue. A recent administrative law judge opinion, issued on May 10, 1974, presents an interesting fact question dealing with the issue of maritime employment. In Coppolino Y. International Terminal Operating Co., Inc.,12 the claimant was employed by International Terminal Operating Company as a head foreman and hiring agent. As head foreman his job was to see that the men were put in the appropriate place aboard the right vessel and to assure that the cargo was stored in the proper location. There was a two~story office building positioned on a pier about 150 leet from the water's edge. As part of the claimant's responsibility as hiring agent, he was required to feed into an IBM machine, located in this building, certain information concerning the men he would employ. While working in the building, moving a box of paper that was 10 be used in operating the IBM machine, he injured his back. At the time of his injury there was no vessel at the dock. The administrative law judge found that the claimant's duties constituted an essential part of the process of "loading and unloading vessels" and concluded that the claimant was covered by the Longshoremen's and Harbor Workers' Com-
Eldon E. Fallon Is a member of the New Orleans law firm Klerr, Galnsburgh, Benjamin. Faflon & Lewis. He Is a graduate of Tulane University (B.A. 1960) Tulene Law School (J.D. 1962) and Yale Law School (LLM. 1963). Mr. Fallon has lectured In the Bridging the Gap Institute LiJuls/ana State Bar Association and various tort and maritime seminars. He Is a member of the faculty of Tulane Law School. We are Indebted to Mr. Fallon and to the Louisiana State Bar Association for permission to reprint this article. which first appeared In the September 1975 Issue of the LiJuls/ana Bar Journal.
118/Arkansas Lawyer/July 1976
pansation Act, as amended. The fact that certain phases of these operations were performed in an office on the pier approximately 150 feet from the water's edge did not affect coverage, according to the administrative law judge. The employer argued that at the time the claimant was injured he was not performing functions of a longshoreman but, in fact, was "a purely clerical employee." The administrative law judge held that the Act does not restrict the term "employee" to a longshoreman, "but rather it includes any person engaged in maritime employment," which the court apparently fell was employment that "in whole or in part" was an essential aspect of the loading and unloading of a vessel. 13 In Gilmore v. Weyerhaeuser Co.,14 another post amendment case, the claimant was employed by a manufacturer of forest products as a "pondman". His employment required him to stand on the walkway of a log boom that was floating in a log pond. While sweeping one of the walkways, a plank gave way and the claimant was injured. The Benefits Review Board found that the claimant was engaged in maritime employment stating: "The fact that claImant is called a pondman or mill worker is irrelevant as to determining his qualifications as an employee within the terms of the act."15 These two polt-amendment cases seem to broadly construe the term "maritime employment". Nevertheless, this approach has not been uniform. In Hebert v. Barnard & Burk, Inc., et al. 16 the claimant, a welder, was assigned to perform a maintenance and repair job on an elevated access road leading from a levee over a batture area of the Mississippi River. Normally, the access road connected with a tanker dock used for the shipment of chemicals. Because of flood conditions, part of the tanker dock had been washed ;may. necessitating the repairs. The claimant was injured while working on a waler intake pipeline on a section of lhe access road that was over flood waters. The administrative law judge concluded that lhe claimant was not engaged in maritime employment. The court in Hebert seemed to restrict maritime employment to those activities specifically enumerated in the Act namely shipbuilding, ship repairing, ship breaking, and loading or unloading vessels. The fact that the claimant was exposed to "maritime risks" was not, in itself. considered determinative. The definition and scope of "maritime employment" as that term is used in the Amended Act will need further sifting through the administrative and judicial process before any definitive description can be fashioned. The battleground will most likely be centered on the issue of whether the term "maritime employment" Is restricted to the traditional maritime activities mentioned tn the Amended Act, such as loading, unloading, repairing, break· ing or building a vessel, or whether It is broad enough to include other less tradilional but nevertheless "maritime-flavored" activities. One area where this conlroversy may be brought into sharp focus is the fixed offshore oil platforms located less than three miles from shore. These platforms certainly adjoin navigable waters and are used for loading and discharging vessels. Roughnecks, roustabouts, wirellne personnel and the like who work on the platforms are dally SUbjected to maritime risks, both in their transportation to
and from work and during their daily endeavors. Nevertheless, these individuals are not generally involved in the traditional maritime activities specifically enumerated in the Act. Are Ihey covered by the Amended Act? Courts will probably divide on this issue, and the question may ultimately have to be resolved by the Supreme Court, 16a
0'
Locus the Injury Prior to the adoption of the 1972 amendments 10 the Longshore Act, longshoremen injured or killed while on a pier were restricted to state compensation while their brother longshoremen injured or killed on a ship secured 10 the same pier were afforded the benefits of the Longshoremen's and Harbor Workers' Compensation Act. The Supreme Court, in Naclreme Operating Co. v, John· lon,11 recogniZed the inequity of such a distinction and suggested that Congress deal with this situation. In November of 1972 the Longshore Act was amended. Among other things, the Act was extended landward to include injuries and deaths occurring on land areas adjoining navigable waters customarily used in loading, unloading, repairing or building vessels. The term "adJoining" has been liberally con· strued. In Atklno Y. I.T.O. COrp. 0' Bini· more,'! an adminIstrative law Judge held that an injury occurring In a cargo shed located on land 685 feet from the water's edge was covered by the Act. The court In the Atkins case defined "adjoining" as "neighboring", which "does not necessarily connote being physically connected." Moreover, it is not necessary for the claimant's employer to use the area for loading, unloading, repairing or building vessels. It is sufficient if any employer uses the adjoining areas for these purposes.1 9 In any event. it is clear that the 1972 amend· ments have extended coverage of the Act to shoreside injuries and deaths. It is not clear, however, whether the Longshore Act now preempts state compensation acts which were heretofore applicable. Prior to the 1972 amendments there existed an area of concurrent jurisdiction - a twilight zone - in which both the Longshore Act and state com· pensatlon acts were available. 20 In such a cir· cum stance the claimant could choose either remedy. This was particularly significant in Louisiana, where the State Compensation Act permits third-party suits against executive officers or fellow employees whereas the Longshore Act prohibits such suits. Thus, in those instances where there was potential third· party recovery, claimants in Louisiana have generally elected to proceed under the Stale Compensation Act. Have the 1972 amendments abolished the twilight zone or have they instead expanded it to Include an area "shoreward" of the waters' edge? At least one commentator has advocated the position that the 1972 amendments have retained the twilight zone concept,21 but the ultimate answers to this question is far from settled. MONETARY BENEFITS AVAILABLE UNDER THE LONGSHOREMEN'S ACT From its inception, the objective of the benefit structure of the Longshoremen's and Harbor Workers' Compensation Act was to provide compensation payments amounting to 66 2/3% of the average weekly wage of the
injured employee. Prior to the 1972 amendments, however, compensation payments were subject to an arbitrary limitation of $70 per week. This limitation, though possibly eqUItable when it was originally instituted, soon became inadequate. By 1971, approximately 11 years after the $70 limitation was enacted, this sum amounted to only about ~% of the average weekly wage of the average worker covered by the Act. 22 The 1972 amendments sought to correct this situation by removing the arbitrary limitation of $70 per week and in its place substituting a graduated formula which relates the amount of the compensation payment to the national average weekly wage of production or non supervisory workers on private nonagriCUltural payrolls. Section 906 of the Act provides that the maximum compensation for disability shall not exceed 2lX)% of the national average weekly wage to be deter· mined annually by the Secretary of Labor. The expectation is that a 200% maximum will enable approximately 90% of the work force covered by the Act to receive two-thirds of their actual average weekly wage. In order to ease the adjustment of these benefits, the Act provides a phase-In consIsting of the followIng four steps: 125% or $167, whichever Is greater during the period ending september 20, 1973; 150% during the period beginning October 1, 1973, and ending September 30, 1974; 175% during the period beginning October 1, 1974 and ending september 30, 1975, and 200% beginning October 1, 1975. 23 Applying this formula, at the present time, an injured employee is entitled to weekly compensation payments of $261 - 175% of the national average weekly wage - or twothirds of his actual average weekly wage, whichever is less. As the "national average weekly wage" increases, the weekly com pen· sation emolument will increase, and these increases will apply retroactively to those employees who were injured subsequent to the 1972 amendments. For those individuals who were injured prior to the 1972 amendments, the retroactive provisions of the Act apply only if their disability was permanent or death re· sutted.2A The minimum compensation payment is 50% of the national average weekly wage or the employee's full average weekly wage, whichever is less. Under the latest figures from the Department of Labor, 50% of the national average weekly wage equals $74.57 per week. This is a substantial improvement over the $18,00 per week which was the minimum payment under the Longshoremen's and Harbor Workers' Compensation Act prior to the 1972 amendments.25 The 524,(XX) limitation in cases of temporary total and permanent partial disability has been removed. Under the Act, as amended, there is no maximum limitation and the party continues to receive benefits as long as he has a disability and discrepancy between his average weekly wage at the time of his injury and his wage earning capacity thereafter. 26 Other notable benefit changes brought about by the 1972 amendments are the following: Death benefits paid to survivors were increased 10 50% of the average wages of the deceased, with two years compensation payable in one lump sum upon remarriageP minor children receive 16 2/3% of the average Continued on page 120 July 1976/Ar1<ansas Lawyer/119
Handling Claim. Continued from page 119 wages of the decedent provided the total amount payable for the surviving spouse Md children does not exceed 66 2(3% of such wages. a Surviving children receive compensation until their twenty-third birthday if they are attending school. 29 Funeral expenses up to $l,CXXI are recoverable,:J) and the amount prescribed for disfigurement of the face, head or neck is increased to $3,500. 31 MEDICAL SERVICES AND SUPPUES In addition to compensation payments, it is the employer's duty to furnish medical care to the emptoyee for such period as the nature of the injury may require. 32 "Medical care" as defined by the Act includes: "Medical, surgical, and other attendance or treatment, nursing and hospital services, laboratory, x-ray and other technical services, medicines, crutches or other apparatus and prosthetic devices and any other medical service or supply ... which is recognized as appropriate by the medical profession for the care and treatment of the injury or disease."33 Moreover, the employee is entitled to be reimbursed for his travel costs expended In pursuit of his medical care.3' The employee has the right to choose his attending physician from among those authorized by the deputy commissioner in the district in which his claim Is filed. 35 At present, all duly licensed physicians are authorized, Chiropractors, naturopaths, podiatrists, psychologists and optometrists, however, are not recognized as physicians as that term is used in the Act. 38 After the employee has made his inWa! choice of an attending physician, he may not thereafter change physicians without prior written consent of the employer, its carrier or the deputy commissioner. The consent is perfunctory when the initial choice was not a specialist and the purpose of the change is to acquire the services of a specialist whose treatment is necessary and apprapriate to the proper care and treatment of the compensable injury or disease,31 In all other cases, however, consent for the change is given by the deputy commissioner only upon a showing of good cause, . Finally, the deputy commissioner is assigned the duty of supervising the medical care rendered to injured claimants,38 He is kept abreast of the claimant's treatment through periodic medical reports, which must be forwarded to his office, In any case in which disputes arise as to the appropriate diagnosis or treatment for an injury covered by the Act, the deputy commissioner has the power to appoint one or more qualified physicians to examine the claimant and issue reports describing their findings and conclusions, Any party dissatisfied with such a report may request a review or reexamination of the claimant by one or more different physicians, and the review or reexamination is usually given unless it is found to be clearly unwarranted.3lI The costs of these special examinations are borne either by the employer or the special fund established by 1944 of the Act."O II. HANDUNG 'TliE CASE INTERVIEWING 'TliE CUENT The checklist set out below may be used for
12D/Arl<ansas Lawyer/July 1976
interview purposes in a longshoreman's injury case. This checklist will enable counsel to 0btain information and data that will be needed to fik! an application for benefits before the deputy commissioner. Interview Checkli.t 1, Name, address, age and marital status, 2, Social Socurity number. 3. Job title (longshoreman, welder, etc.). 4, Number of years in this occupation. 5. Date of injury. Hour began work, Hour of accident Did claimant stop woO< immediately? 6. Did injury cause loss of time beyond day or shift of accident? 7. Number of days or weeks lost from employment. 8, Date and hour pay stopped, 9. Date and hour claimant returned 10 work. 10. Wages or earnings (include overtime allowances). Average weekly earnings, Total earnings during previous year. 11. Was injury received While on the job? (If "No," explain.) 12. How many years has claimant woO<ed for this employe<? 13. Number of days usually worked per week, 14, Name of foreman or supervisor at time of accident. 15, Earliest date foreman or employer knew of accident. 16. Was Claimant employed elsewhere during the week he was injured? (If "yes," explain,) 17, Exact place where accident occurred (name of vessel, pier, wharf, terminal, etc,) 18. Was medical treatment provided by employer7 19. Is claimant still disabled on account of this injury? 20, Has claimant done any work during the period of disability? 21, Has claimant received a1Y wages since becoming disabled? 22. Has injury resulted in permanent disability or amputation? (if "yes," describe.) 23, Name of employer (individual or firm name), 24. Nature of employer's business, 25. Address of employer. 26. If accident occurred outside the U,S. state whether claimant is a U,S. citizen, 27. Describe the accident in detail (relate the events that resulted in injury; describe what claimant was doing at the time, and name any objects or substances involved and tell how they were involved). 28. Nature of injury. (Name pan(s) of body affected.)
29, Has claimant received medical attention for this injury? (If "yes," give name and address of doctor, hospital, clinic, etc.) PERIOD OF UMITAnONS Under the Longshoremen's Act, the right to compensation for disability or death is barred unless a claim is filed within one year atter the injury or death, or within one year after the last payment of compensation. whichever is later.路1 Under the 1972 amendments the time for filing a claim does not begin to run until the employee or beneficiary is aware, or, by the exercise of reasonable diligence. should have been aware of the relationship between the injury or death and the employment,Q The
one-year statute of limitation is tolled when a suit for damages has been erroneously brought under another federal statute (such as a suit for damages brought under the Federal Employees' Liability Act or under the Jones Act) and then dismissed on the groond that the Longshoremen's Act was applicable and afforded the exclusive remecly.43 Under Section 913 of the Act the one-year period begins to run from the date of the termination of the suit. Moreover, where the employer has faHed to compty with his obligation to report an employee's injury to designated officials within the time prescribed by statute, the limitations period does not begin to run until such time as the repon is made.... Failure to file a claim within the time prescribed by statute does not bar the right to file unless objection to the failure is made at the first hearing of the claim, of which all the parties in interest are given reasonable notice and where they have an opportunity to be heard,45 RUNG 'TliE CLAIM; NOnCE REQUIREMENTS In the great majority of cases, compensation payments under the Longshoremen's Act are begun voluntarily before a formal claim is filed. Under the Act. the employer Is required to begin paying compensation to the Injured employee on the fourteenth day after the employer has received notice of the inJury.46 When an employer refuses to pay compensation or terminates the payments that were voluntarily begun, the injured party may file 8 formal claim with the deputy commissioner, Although the claim may be set forth in a letter,41 it is preferable to utilize the official forms provided by the deputy commissioner's office for filing a claim under the Longshoremen'S Act. If the employer desires to controvert the employee's right to compensation, he must file a notice to that effect within 14 days from notice of the injury, stating the grounds on which the right to compensation is controverted. This notice is filed with the deputy commissioner and is ordinarily executed on a printed form provided for this purpose by the deputy commissioner..48 If the employer rails to file notice of his oontroversion, he may be liable for penalties.<I8a If the one-year statute of limitations is close at hand, counsel shoUld take the precaution of requesting that a kmer, together with the client's authorization, be considered a formal claim under the Act sufficient to suspend or interrupt the running of the statute until a formal claim can be filed in the proper form. The letter, as well as the authorization, should be signed by the claimant and filed in duplicate with a request that the deputy commissioner forward a copy to the employer or his insurer. The official printed form used for filing an employee's claim is Form BEC-203. When the form is completed, counsel should send the origInal and one copy to the deputy commissioner. DISCOVERY PROCEDURES Under section 927(a) of the Act. the deputy commissioner Is empowered to compel the attendance and testimony of witnesses, the production of books, papers, documents and other evidence and "to do all things com formable to law which may be necessary to enable
him effectively to discharge the duties of his office."418 Moreover. if any person neglects to produce, atter having been ordered to do so, My pertinent book, paper, or document or refuses to appear after having been subpoenaed or upon appearing refuses to take the oath as a witness or after having taken the oath refuses to be eXMlined according to law. the deputy commissioner is authorized to certify the facts to the district court having juris· diction in the place in which he is sitting. In such an instance, the district court hears the appropriate evidence in a summary manner and if the evidence so warrants. punishes the recalcitrant in the same manner and to the same extent as for a contempt committed be· fore the federal district court. It frequently occurs that a party will have questions to which answers from the opposing party would be helpful in the preparation of the case. If so, he may draft such Questions in duplicate and forward them to the deputy comm issioner. together with a CCNef letter re-. questing that the deputy commissioner for· ward one copy of the questions to the opposing party lor answers. The deputy commissioner may, under section 927, forward these questions to the opposing party and call upon the recipient to supply answers. Likewise, any request for production of documents may be forwarded to the deputy commissioner with a request that they in turn be sent to the opposing party. In cases in which a party feels a deposition would be of benefit, he may notify the deputy commissioner by letter, setting forth the name of the person to be deposed, his address and the reason for the deposition. The deputy commissioner has the power to compel the taking of a deposition under section 927(a). In the event depositions are taken, the procedure for issurance of summons and the rules that govern with respect to evidence are the scme as those that apply to formal hearings under the Longshoremen's Act. In the past, interrogatories and depositions have not been used extensivety in longshore proceedings. Perhaps the reason was that any necessary discovery was conducted in the third-party suit against the vessel owner. With the abolition of the unseaworthiness remedy and the resulting reduction in third-party suits, the use of discovery procedures in longshore proceedings is likely to increase. PREUMINARY CONFERENCES
G....'.11y
I:
To expedite the processing of claims under the Longshoremen's Act, prehearing meet· ings are arranged between the interested parties and the deputy commissioner or one of his staff. The initial prehearing meeting is generally designated as an informal conference; the conference immediately preceding the formal hearing is termed a "pr&-hearing conference." OCCasionally, the deputy commisstoner personally presides at both the in· formal conference and the prehearing conference. Often. however, an assistant to the deputy commissioner wltl take his place at either one or occasionally at all of the jX'eliminary conferences.
Tho Infonn.1 Conferwnce After the major portion of the evidence has been collected, counsel should request the deputy commissioner to call an informal con-
ference. On fixing the date of the oonference, the deputy commissioner notifies the claimant, his counsel. the employer and the latter's
insurer. Although the claimant IS notified, he need not be present at the informal conference. There IS some difference of opinion among lawyers as to whether or not the claimant should appear at the informal conference. One view is that it is good trial strategy for the claimant to attend. Since the informal conference often provides the first opportunity for a meeting between the claimant, the deputy commissioner and the defendant's representative, some leel that the claimant's chances of resolving the controversy may be enhanced by his appearance. The other view is that the claimant should not appear because he subjects himself need· lessly to possible interrogation by the defendant's representative. There is no court reporter or stenographer at thiS conference. Nevertheless, the deputy commissioner or other person in charge of the conference makes longhand notes as to the contentions of the respective parties. It is not unusual lor the deputy commissk>n· er to conclude the informal conference with a recommendation to the parties. He may suggest that more medical evidence be obtained, that the claimant's wages be more accuratety determined or that compensation be paid to the claimant at least until a formal hearing. Neither party is oound to accede to these recommendatIons, but counsel should be ready with an explanation should he decide to refuse to follow them.
The Prohe.ring Conference When it becomes apparent that the parties cannot reach agreement upon one or more issues, generally a party requests a formal hearing, A prehearlng conference is held be· fore the formal hearing. 5O At this conference the employer or its insurer will usually be represented by counset. At the prehearing conference each party is generally caned upon to state his position. Where possible, stipulations are made. Upon the termination of the conference the deputy commissioner or the presiding official prepares a memorandum summarizing what transpired at the prehearing conference. This memorandum includes a recitation of those matters pertinent to the claim upon which the parties have stipulated, a statement that the parties have so stipulated and a listing of the issues upon which agreement has not been reached. 51 A copy of this memorandum is mailed to all parties and their representatives. Upon receipt the parties within ten days must signify their agreement with the content of the memorandum by signing a copy of it and returning it to the deputy commissioner's office.52 If a party disagrees with any of the contents of the memorandum, he should nolily the deputy commissioner In writing. Failure to return the memorandum within ten days of its receipt is construed as acceptance of its content by the
party." Upon retum of the signed copies of the memorandum (in the absence of a signed copy, note of the absence is made on the copy), the deputy commissioner is required to forward the memorandum to the office of the chief administrative law judge. The issues set forth in the memorandum serve as the basis
of the trial, or "formal hearing" as it is termed.SoI lHE FORMAL HEARING Formal hearings are conducted by the administrative law judge assigned to the case by the office of the chief administrative law judge. The hearings are conducted in accordance with the provisions of the Administrative Procedures Act. 56 The proceedings are transcribed and a formal record is compiled. The trial date is set by the office of the chief administrative law judge, who notifies the par. ties on a form prescribed for that purpose not less than ten days In advance of the trial date. In addition to setting the date of the trial and time and place at which the hearing is to be conducted, there is attached to the notice a copy of the deputy commissioner's memoran· dum listing the issues to be resolved at the hearing.56 If during the course of the formal hearing the evidence presented warrants considera· tion of an issue not previously considered, the hearing is expanded to include the new issue. In this event, however, the parties are given a reasonable time in which to prepare for such new issue. 57 It IS generally a good idea to subpoena every wItness that counsel intends to call to testify at the formal hearing. Subpoenas can be obtained by writing the deputy com· missioner and requesting that subpoenas be issued for each of the persons whose names and addresses are listed in the letter as witnesses in the hearing on the compensation claim involved. In response to the letter of re-. quest the deputy commissioner wilt mail back to counsel two copies of each subpoena issued by him. One copy is for the service to be made by the party who requests the subpoena and the other is for the return of the service. The subpoena may either be served in person or sent by certified mail to the witness. The party serving the subpoena retains the second copy and designates on the reverse side the type of service CW'ld the date ser· vice was made. The copy showing the return of service can then be submitted to the ad· ministrative law judge at the commencement of the formal hearing to be flied in the record. No person is required to attend as a witness in any proceedings before an administrative law judge at a place more than a hundred miles from his place of residence unless his mileage and fees for attendance are paid or tendered to him in advance of the hearing date. Witnesses summoned to a formal hear· ing before an administrative law judge receive the same fees and mileage as witnesses in courts of the United States. 58 During the course of the formal hearing, the administrative law judge is not bound by oommon law or statutory rules of evidence or by technical or formal rules of procedure except those prescribed by the Administrative Procedures Act 5lil Statutory provision is made that declarations of a deceased employee concerning the injury are to be received in evidence and shall, if corroborated by other evi· dence, be sufficient to establish the injury.eo The hearings are open to the public CW'ld may be attended by any person interested. A stenographic record Is made of the proceedings."1 The formal hearing generally begins with opening remarks by the administrative law judge based on the information contained
Continued on page 122 July 1976/Ar1<ansas lawye'/121
Handling Claims Continued from page 121 in the memorandum of the prem,aring confer·
ance. Counsel for the claimant and counset for the employer make their respective opening statement. Thereafter, the witnesses for the claimant and the defendant are called on to gIve their testimony. The injury and resulting disability are proved in the same wfry that they would be proved in any trial, the primary distinction be· ing the considerable relaxation in the application of formal rules of evidence during the hearing before the administrative law judge. Generally. after the termination of the formal hearing the administrative law jUdge asks both counsel to submit briefs. These post hearing briefs are generally submitted by ooth
parties at the same time, with no opportunity given to forward reply briefs. The administrative law judge is required to
file a written opinion. setting forth his findings of fact and conclusions of law. This compensation order is forwarded to the deputy commissioner's office, which in turn sends it to the interested parties by certified mail.52 The compensation order becom~ fina! when filed in the office of the deputy commlssioner.83
APPEALS TO THE BENEFITS REVIEW BOARD
Generally From the date the written opinion is filed in the deputy commissioner's office, a party has 3) days to appeal the decision of the administrative law judge. Appeals are taken to the Benefits Review Board, a board consisting of three members appointed by the secretary of Labor. The Board conducts its proceedings in Washington, D.C. The Board may, however, upon showing of good cause order that proceedings in a particular matter be held in a location other than Washington, D.C. Payment of an award is not stayed pending appeals unless an order staying payment has been issued by the Board.&1 in the absence of such an order. if compensation is not paid within ten days after it becomes due, "there shall be added to such unpaid compensation an amount equal to 20% thereof, which shall be paid at the same time as, but in addition to, such compensation."65 The appeal is commenced by the filing of a Notice of Appeal at the office of the deputy commissioner for the compensation district in which the decision or order appealed from was filed.• A notice of appeal should contain the following information: (1) The full name and address of the petitioner; (2) the full name of the injured, disabled or deceased employee; (3) the full names and addresses of all parties in interest, including, among others, beneficiaries, employers, coal mine operators and insurance carriers where appropriate; (4) the case file number; (5) the date on which the decision or order being appealed was filed and (6) if the petitioner is being represented by another person - e.g., a guardian - the name and address of such representative should be stated.61 It is desirable 10 attach a certificate to the notice of appeal indicating the date the notice was filed and indicating that a copy was forwarded to opposing counsel.
122/Ar1<ansas Lawyer/July 1976
If the notice of appeal is mailed. certified
mall should be used. Upon receipt of a notice of
appeal, the deputy commissioner within five days must forward the notice together with the official record of the case, including the transcript of all formal proceedings, all stipulations CW1d any other pertinent documents, to the clerk of the Benefits Review Board, United States Department of Labor, Washington, D.C.158 Upon receipt by the Board of a notice of ap. peal and the accompanying documents forwarded by the deputy commissioner, the Board notifies the petitioner and the office of the Solicitor of Labor in writing that such notice and documents have been fited.89 WithIn 30 days after the receipt of an acknOWledgment of a notice of appeal, the appellant must submit 8 petition for review to the Benefits Review Board. The petition for review should contain a statement indicating the specific contentions of the appellant and should describe with particularity the substantia! questions of law or fact to be raised by the appeal. The petition for review should be accompanied by a brief or memorandum of law supporting the position set forth in the petition for review. Copies of the petition for review and supporting brief should be fOfWarded by certified mail to all parties In Interest and the Solicitor of Labor.TO Within 30 days after the receipt of the petition for review, each party upon whom the petition and accompanying brief have been served may submit a brief in response. ll Within 20 days after the receipt of the ap. pellee's response, the petitioner or any party upon whom the brief has been served may file a rebuttal brief.n
Scope of Review The Benefits Review Board is not em· powered to engage in a de no¥o proceeding. The Board is authorized to review the findings of fact lMld conClusions of law upon which the decision or order appealed from is based. The findings of fact and conclusions of law may be set aside only if they are not, in the Judgment of the Board, supported by substantial evidence contained in the record when considered as a whole.13 Oral Argument Oral argument before the board is not automatic. It must be requested. At any time prior to the issuance of a decision by the Board, any partY or intervenor or the secretary of Labor or his representative may request an oral argument. The Board, on its own motion, may also order an oral argument. Request for oral argument should be directed to the Chairman of the Benefits Review Board, Washington, D,C,1. Within 10 days from the date upon which a request for ora! argument Is received by the chalrman, the Board makes a determination whether a request should be approved or denied. In cases where a request tor an ora! argument has been approved. or where an ora! argument has been ordered by the Board on its own motion, all parties and intervenors are given a minimum of 10 days' notice in writing by certified mail of the time and place of the argumenV5 In Ihe event no oral argument is ordered, the Board proceeds to review the record of the case after all briefs. stipulations. support-
ing statements and other pertinent documents have been received. The Board issues written decisions. The original of the decision is filed with the cieri< of the Board. and a copy of the Board's decision is sent by certified mail to all parties to the appeal. In its decision, the Board may affirm, modify, set aside or remand the case. 16 Reconsidenltlon of Board Decisions Within 10 days from the date the Board's decision is filed with the clerk of the Board, any party in interest may request a reconsideration of the decision. The failure to file a request for such a reconsideration, however. is not deemed a failure to exhaust administrative remedies and is not necessary before filing for judicial review. n The request for a reconsideration should be in writing and should state the supporting reasons for the request and include any material pertinent to the request The request should be fOfWarded to the cieri< of the Board, and copies should be served on all parties.18
JUDICIAL REVIEW Within 60 days atter the Benefits Review Board's decision has been filed with the clerk of the Board, any party adversely affected or grieved by the decision msy take an appeal to the United States Court of Appeals for the circuit In which the injury occurred by filing with the Court a written petition praying that the order be modified or set aside. A copy of the petition should be forwarded to the clerk of the court. the Board and to all parties in interest,19 Upon receipt of the petition for review the clerk of the Board then fOfWards to the appropriate appellate court the record in the proceedings. The circuit court has the power to aHirm, modify or set aside, In whole or in part, the order of the Board. CONCLUSION The 1972 amendments to the Longshoremen's Act have made sweeping changes in the administration of the Act, the benefit structure and the procedure for handling claims. The full effect of these amendments will unfold gradually as they become assimilated by industry, labor, government, courts and the Bar. FOOlNOTES '42 USC 11651. 242 USC 11701. '5 USC 1150. '43 USC 11331 6/. seq. 530 USC 1932. !Hearlngs on 5.2318 Before Subcommittee on Labor of the Senate Committee on Labor & Public Weffare, 9200 Cong. 2d 5ess. at 1 (1972). 733 USC I~e). '33 USC 1902(3). 'Harris v. Maritime Terminals, 1 BRBS 301, 304 (1975).
'0325 F. Supp. 1361 (0 C Pe. 19n). "419 F.2d 572 (5th Clr. 1969). "Cese No. 74-UiCA-60 effd 1 BRBS 205 (1g75). 13ft Is Interesting to note that In Coppolino therB was no vessel docked at the pier at the time the claimant was Injured. The administrative law judge concluded that "nothing in the Act requires that a vessel be thus Iocsted at
the tim. 01 en eccldentel Injury In ord<>r to be covered." "I BRBS 180 (1975). ukf at 183. "Ces. No. 74-HCA-142. ".WIIey V. Wilson Wlrellne S81v1c.., et 81, Case No. 75·LHCA·224; Anderson V. McBroom RI9 Building S81v1c., Inc., et eI, Ces. No. 75-LHCA-I26. 173iJ6 US 212, 224 (1911I). "Ces. No. 74-LHCA-12. I~H8fls v. Marine Termlna/s. Inc., 1 BRBS :xlI (1975). 205ee Norris, Maritime Persona' Injuries 1145 (2d Ed. 1966); I Edelmen. Merlt/m.'n/ury & De.th. 284 (1960). "Gllmor. & Bleck. Admlr.lty, 423-26 (2d Ed. 1975). 22S8nate Report to accompany 5.2318, Report 92-1125, 92 Cong. 2d at p. 5
s..•.
(1972). • "33 USC 1906(b). "33 USC 1906(d); 910(!Xg) end (h). The wording of these sections Is confusing and to some extent Inco"./stont: Section. 906(d) end 910(h).eem to .ugg••t thet clelmont••ustelnIng perm..- dl.eb/iity prior to the 1972 amendments arB entitled to the SMl8 beneffls as those claimants sustaining permanent disebility subsequent to the 1972 emendments. For example, a person receiving $70 per week lor • permonent dl.ebllity .ustelned prior to 1972 would seem to be entitled to have his compensetlon rate Increased to the present fate of $261 or two-thirds of his salary, whlch.v.. I. I.... N..erth.,.....ectlon 910(1) and (g) only refer to annual Increases and not a cheng. In the bas. ret•. Recently, the Bone-
fits RfIV/ew Board was called upon to Interpret these sections of the Act. In Landrum II. A}r
AmlKlca. Inc.• I BRBS 268 (1975) the Boerd held thet c/elmonts Injured prior to the 1972 amendments are only entitled to the annual adjustment. re","ad to In .ectlon 910(h) which are then _ad to the compen.etlon rat. beIng recelvad by the c/elmont. "33 USC 1906(b) (2). "33 USC 1906(c). "33 USC 19C1I{b). "33 USC 19C1I{b). "33 USC 1902{IB). 3'33 USC 1909(.). 3'33 USC 1906(c) (20) 3233 USC 1907; 20 C F R 1702.402. 3320 C F R 1702.401.
""Id.
3533 3520
USC 1907; 20 C F R 1702.403. C F R 1702.404. 3120 C F R 1702.406. 35U S C 1907; 20 C F R 1702.407. 3020 C F R 1702.409. "20 C F R 1702.412. "33 USC 1913.
":lid. <333 USC 913(d). Ukewls•• In Wilson v. Donovon, 218 F. Supp. 944 (E D La. 1963). the Court held thet a sun "lad und.. the LouI.IBIla Workmen's CompensBtlon Statute and Jeter dl.mlasad /Ix lack 01 Jurisdiction wes a "sun brought et law" es th.t tlKm fa u.ad In .ectlon 913(d) end es .uch tollad the period 01 IImn.tlons under the Longshoremen's Act. "33 USC 1930(1). eI.o Assocletad Indemo Corp. V. She•• 455 F.2d 913 (5th Clr.
see
1972). "33 USC 1913(b). "33 USC 1906(.). 914(b).
"see
Strechen Shipping Co. V. Hollis. 4«J F.2d 1108 (5th Clr. 1972); Loul.lana-T.xes WetIKWeyS CO. V. US Employees' Com-
pensetlon Comm·n. 19 F. Supp. 3iJ6 (D C Ky. 1935); Young V. Hoag•• 90 F.2d 3iJ6 (D C Clr. 1937); McKinney V. O'Laary. 4«J F.2d m (9th Clr. 1972). "33 USC 1914. "833 USC 1914(.); McCabe V. Bell Build· .... I BRBS 2QO (1975). "33 USC 1927(a). "20 C F R 1702.312. "20 C F R 1702.315. "20 C F R 1702.316.
t13kt. "20 C F R 1702.316(b). 55Admlnlstratlve Procedures Act, 5 USC 1554. See 20 C F R 1702.339. "20 C F R 1702.335. "20 C F R 1702.336. "20 C F R 1702.340. 342. see elsa, 33 USC 1924, 925. "20 C F R 1702.339. '033 USC 1923(.). "33 USC 1923(b); 20 C F R 1702.346. "20 C F R 1702.349. 0320 C F R 1702.350. "33 USC 1914(1) ond 921(c). "33 USC 1914(b). "20 C F R 1802.2(U. "20 C F R 1802.207. us.. 20 C F R 1802.201J. "20 C F R 1802.209. 1020 C F R 1802210. "20 CFR "20 C F R 1320 C F R "20 C F R
"20 "20 1120 "20 "20
1202211. 1802.212.
1802.:xlI. 1802.305.
C F R 1802.:xl7. C F R 1802.404.
C F R 1802.407. C F R 1802.408. C F R 1802.410; 33 USC 192I(c).
1- .....
NEWS RELEASE
EIGHTH CIRCUIT ANNOUNCES PROCEDURE CHANGE Appeals of most federal criminal cases will be further expedited under a plan recently adopted by judges of the United States Court of Appeals for the Eighth Circuit Beginning JUly 1. 1976. the judges will require briefs and transcripts in
criminal cases to be filed more promptly. The changes are included in a new Plan to Expedite Criminal Appeals approved by the Judicial Council of the Eighth Circuit. Chief JUdge Floyd R. Gibson said that the Court now decides most criminal appeals within six months after a conviction. The changes are de-
signed so that decisions in "routine cases" can be handed down in less than 100 days and in "more complex" cases within 150 days, he said.
Under the new policy. District Court Clerl<s will automatically proceed to transmit court records in cases where trial testimony lasted three days or less. Stenographic reporters will be required to provide a transcript of the trial in no more than 20 days. Administrative changes relating to more lengthy cases on appeal will also be instituted. Copies of the revised plan are avail-
able on request to the Cieri< of the Court of Appeals. Eighth Judicial Circuit. Room 511.1114 Marl<et Street. SI.
Louis. MO 63101. The Chief Judge said that rules modifications were necessary so that
the Court could keep up with increases in the number of criminal appeals. He
said that the Court had managed to dispose of most appeals promptly despite a 250 per cent increase in the
number of appeals in the last decade. The judges of the Court will "give the highest priority to the preparation of opinions in criminal appeals," Gibson said. The Court, which is based in St. Louis, hears appeals from federal district court in seven Midwestern states.
July 1976/ArI<ansas Lawyer/123
LAND DEVELOPMENT AND ZONING by Perry V. Wh itmore
After some ten years of continuous and faithful service to the City of Little Rock, Arkansas, with particular involvement in that City's problems relating to land development and land use or zoning, I resigned my position with the City, moved my family into a larger and more expensive home, purchased a larger and more expensive automobile. joined lawyers John Plegge and Chester Lowe in a penthouse office overlooking the River and sat back in anticipation of being overrun by the real estate fraternity and their demands upon my peculiar talents in this field of law. Only to discover that while by my tenure with the City I had developed a reputation for a specialty in the law. that specialty was in the field of "barking dogs" and ordinances enacted to control such animals. While daily the cities in this area and the courts meet, consider and handle problems relating to the development and use of land. they do so without the benefit of my vast experience. Fortunately for you, Cooper Jacoway was aware of my frustrations and prevailed upon me to appear here and share with you my rather extensive expertise in this particular field of law. Preparatory to appearing here today. I pursuaded David Henry, assistant City attorney for Little Rock, and Sam Hillburn, City attorney of North Little Rock, to join me. I will undertake during the next several minutes to summarize for you the law bearing upon land development and zoning and then will call on these two gentlemen in turn so that they may acquaint you with the particular ordinances of each of these cities. Hopefully, by this means we will acquaint you here today with some of the basic necessities of an undertaking to develop or 10 change the use of a particular piece of property. Also. these two gentlemen will be available to field your questions should we not completely cover the subject during our formal presentation. INTRODUCTION The discussion of any subject should begin by breaking the
EDITOR'S NOTE: Three lead erticles in Ihis issue are papers presented in the Pulaski County Bar Association's Continuing Legal Education serlas during 1975-76. Tha authors ara Parry V. Whitmore, James W. Moore, and Robert H. Marquis. Additional papars tram Ihis "CLE" serias will ba published in Ihe naKI
124/Arkansas Lawyer/July 1976
SUbject matter into parts and giving the SUbject some type of dimensions. For our purposes here today we are going to undertake to confine or perhaps expand our comments on the law into three areas, as it relates to: (1) the authority of cities to control the development of property through sub-division regulation; (2) the authority of cities to control the construction and placement of improvements upon lots and plots of grounds and; (3) the authority of the cities to restrict the uses which may be made of property. Without imposing on you the historical background in development of this field of law, I would start by informing you that our State Legislature in 1957 enacted legislation whereby cities were enabled to undertake a comprehensive response to those complex problems occasioned the cities by the pressure for development of new lands through the sub-division process as well as the problems created by the redevelopment by use changes of land already developed through the development of compatible zoning districts within the city. This Act (Act 186 at 1957) has in the main remained the fountainhead of the city's authority in this field of land use and development. This is not to say that the act has not been modified through the amendatory process on several occasions; and on one occasion rewritten; however, the principal thrust of the act remains substantially the law loday. Now in breakdown, the Act provided first, a methology by which cities review proposed sub-divisions of lands and make requirements with reference to the designing and grade of streets, the dedication of easement of rights-of-way and require the sub-divider to provide basic improvements to those streets servicing the lots that he proposes to offer for sale or intends to develop. Secondly, and of course equally important, is that the cities were given authority to establish planning commissions, whose responsibilities include the superintending of the sub-divisions of new lands and the responsibility to see to the compatible
issues of The Arkansas Lawyer. These articles are of particular interest to the practicing lawyer in Arkansas, as they cover current law on current SUbJects. Cooper Jacoway, Uttls Rock attorney, was Chairman of the program.
uses of property by application and administration of the zoning ordinance. BOARD OF ADJUSTMENT And linally, the Act provided for Ihe creation 01 a Board of AdJustment. You may not be familiar with the functions of this parbcular Board since it is not frequently In the news and its purpose IS more limited than that of the Planning Commission ThiS particular Board's function IS quasI Judicial, It has as Its purpose the construction of the zoning ordinance In actual application and the forgiveness of the compliance with the strict letter of the zoning ordinance. In those instances where the property owner would be put upon if such zoning ordinances applied cold turkey. For instance, the Board of Adjustment is that body where you would seek permission to ignore the setback prOVISions of the zoning ordinance where a compliance with the setback provisions would leave you with a difficult lot. City 01 Little Rock YS. Kaulman, 249 ARK. 530. 460 SW2d 88. However:bear In mind that the Board of Adjustment IS not permitted by law to allow property to be used as commercial property when located in a residential zoning district. In other words, the Board cannot permit a use of property when such use violates the zoning ordinance. I might add that our local CirCUit Court. affirmed by the Supreme Court. had no difficUlty in finding authority of the Board of Adjustment to permit a property located in a residential use district to be converted to a residential swimming pool where the swimming pool was owned by the Leawood Property Owners Association and mem路 berships available to residents of the area in which the facility was to be located. City 01 Little Rock, Arkansas YS. Leawood Property Owners Association, 242 ARK. 451. 413 SW2d 877. You notice that I particUlarly mentioned the Circuit Court. The action of the Board of Adjustment is final insofar as the City is concerned as opposed. for instance. to the activity of the Planning Commission in the area of zoning where it recommends to the City's Legislative body whether or not the zOning ordinance should be changed in response to the application of a landowner. An appeal from the decision of the Board of Adjustment IS de novo to the Circuit Court. Arkansas Power 31 Light vs. City 01 Lillie Rock, 243 ARK. 290. 420 SW2d 176. SUB路DIVISION REGULATIONS Return your attention to my mentioning sub-division regulations. Here again. we arB not without precedent supporting the city's authority to make reasonable requirements of the developer. In the case of Butler ys. City 01 Little Rock, Arkan路 sas, 231 ARK. 834. 332 SW3d 812. a landowner sought to subdivide and develop property without complying with the requirements of the City of Little Rock. The landowner partiCUlarly objected to the required dedication of street rights-ofway, which in this case would have been for a County road. He
was supported by the County Judge who claimed he did not want the darned thing. The Circuit Clerk would not accept the sub-division plat for recording. until it received approval by the city. The court In sustaining the authority of the city to require dedication essentially held that the person seeking to develop property was exercising a privilege and not enforcing a right and a requirement of right-of-way. for a County road did not conflict with the exclUSive Jurisdiction of the County over County roads In thiS field of sub-dlvisten regulatten. I will not impose upon your time further as I anticipate both DaVid and Sammy will acquaint you with the essentials expected of the sub-dIvider. I wanted only to alert you to the fact that the court has found the city to have authority to police the development of sub-divisions. LAND USE By far the most difficult problems in thiS area of cities' partiCIpation in the development and use of property lies in the uses of such property or zoning. In the case of Herring ys. Stannus, 169 ARK. 244. 275 SW 321. our Supreme Court stated in absolute simplicity that the right to determine the use of a particular piece of property abided in the city. It went further in that decision and stated that the decision of the city relative to the zoning determination would not be disturbed on appeal. unless the city's decision was arbitrary and capricious. We could do no more here today than to alert you with reference to some factors which the court has either expressly or Impliedly applied in determining whether or not the city was arbitrary in a given circumstance. In the case that is frequently referred to as the DomIno case, City of Little Rock YS. Pleiler, 169 ARK. 1027. 277 SW 883, the court staled that the authority to zone could not be employed to restrict the use 01 property abutting an established business district. Such abutting property owner had the right 10 choose to use his property as his neighbor or to let it remain residentiaL That decision stood as a law until the 1960's when the court undertook the decision of Parker ys. City 01 Little Rock, Arkansas, 241 ARK. 238. 407 SW2d 921. where they were faced With the applicatlon of an owner to rezone hiS dwelling which was abutting a shopping center out on West Markham Street. For the first time, apparently. our court became mindlul of the fact that if by right Ihey rezoned such abutting property, they in effect rezoned the world. In the Parker case the court reasoned that the more modern sophisticated land uses as now permitted by the city's ordinances made the old Pfeifer rule obsolete. However, thereafter our court has been faced on several occasions with this problem of the use of abutting property to a buSiness district. The decisions vary. giving rise to differences of opinion; however. I stand with those who say the court has abandoned the Pfeifer rule. Other than the Pfeifer case. I know of no other rule of law by Continued on page 126
Perry V. Whitmore: A native of DeQueen, Ark., graduated from DeQue8n High School, aNended Arkansas Stale Teachers College (now University of Cenlral Arkansas), graduated In 1951 from the University of Arkansas SChool of Law. He enlered the praclice of law In Conway and in 1960 joined Ihe office of the City ANomey of UN/e Rock, where he remained unti/1972. He is now a member of the firm of Plagge, Lowe and Whitmore in UN/e Rock.
July 1976/Arkansas Lawyerl125
Land Continued from page 125
which it could be said that by right the property owner is entitled to a certain use of his property. All zoning cases present an individual factual determinations. The court found the city arbitrary when it refused to rezone residential property for commercial purposes where the subject property was traversed by a water course which made development of the property for residential purposes a financial prOhibitive. City of Little Rock ys. Henson, 220 ARK. 663. 249 SW2d 118. The court reasoned that the application of the zoning authority under such circumstances would result in a substantial financial loss to the owner. This property is located on West Markham Street directly across from War Memorial Stadium and is the site of two service stations. Some years later the property lying immediately east of the Henson tract was the subject of a rezoning application. seeking to use of that property for an additional service station. The applicant was a church whose membership had moved westward and caused an abandonment of the West Markham structure. The applicant advanced the argument that any reconstruction of the church building for use as residential property would be financially prohibitive as in the Henson case. The city denied the application for commercial use of the property. The Supreme Court sustained the city statin9 thai the owner of land was not necessarily entitled 10 a zoning classification that would produce the top dollar. but the court did advise the City to consider some use of that particular property other than Single-family resldenllal. City of Little Rock YS. Faith Eyangelical Lutheran Church, 241 ARK. 187. 406 SW2d 875. The church structure has now been converted to an office building. In the HenllOn case Ihe court noted the absences of objectors to the applicant's request for rezoning; however. in a later case the court made it clear that the attitude of neighbors was of no significance. CUy of North Little Rock ys. Habrle, 239 ARK. 1007.395 SW2d 751. Two cases have taYorable considered development plans tendered by landowners where such development plans appeared to "soften" the Impact on surroundIng property ot the proposed conUicting use. City of Little Rock Ys. Hocott, 220 ARK. 421. 247 SW2d 118. and Metropolitan Trust Company ys. City of North Little Rock, 252 ARK. 1140. 482 SW2d 613. The last case cited inyolved "the Other Center" in North Little Rock and the decision required additional setbacks of buildings. excluded any business selling liquor and required the landowner to construct and maintain abundant screening between the Center and established residences which abutted the sile. In the first case. the property was some time in developing and the plans submitted in support of the zoning application had been misplaced. Any day now the Supreme Court may find the Crestwood Apartments were constructed in violation of its decision. You might think from this limited sampling of the decisions of our court that there would be reason to question the exactness in law of zoning. One appellant's attorney had the audacity to suggest the court might not be too clear itself. City of Little Rock ys. Garner, 235 ARK. 362. 360 SW2d 116. The court speaking through Justice McFaddin denied any lack of clarity but was considerate of the attorney's confusion and set out the ABC's of the law. Unfortunately for that partiCUlar attorney. the court while reasoning to point C of their lesson on the law of zoning convinced themselves of the lack of any merit for his case. Seriously. the opinion of Judge McFaddin is quite thorough and if you have Interest in this field of law. I would recommend that opinion to you. Along about the time we managed to win one of those antiPfeifer cases. our State Legislature determined that something would run afoul, the City having won a zoning case. and promptly enacted a re-enactment of Act 186. but provided that the disappointed applicant for rezoning might appeal de novo to the Circuit Court. as well as retaining the traditional appeal 126/Arkansas Lawyer/July 1976
to Chancery. Apparently. it was the belief of our legIslators that we had cast some sort of spell over our local Chancellors. and a jury tnal was the answer. The City of Little Rock tried one case In the local Circuit Court. Before tryIng the case on the merits. the City appealed the quesllon of jurisdiction and the right of Irial to a jury. We were told by our Supreme Court that our appeal was premature. Wright YS. City of Little Rock, 245 ARK. 355. 432 SW2d 488. Accepting that fact. we then Iried the case before the Court sitting without a jury by agreement. We were successful on the merits and no appeal taken. Shortly thereafter. Fort Smith. faced with the same type of situation. successfully appealed on the Jurisdiction question. Wenderoth ys. City of Fort Smith, 251 ARK. 342. 172 SW2d 74. The Court by that decision determined that zoning appeals should be tned solely In Chancery Court and the City of Little Rock was remiss by not having raised the jurisdiction Issue in the appeal of earher decisions. CONCLUSION We are of course just today skimming the surface of this area of law and it goes without saying that more went unsaid with reference to this law than staled. Hopefully. from these comments. you have garnered that the cities within our area exerCise ~d.m.inistrative. or if you will. executive authority over the sub-dIVISions of lands lying within their planning boundaries. they exercise legislative jurisdiction in the field of zoning and they provide a limited judicial opportunity for the settlement of disputes and the application of hardship or equity prinCIpals through the Board of Adjustment. Appeals from the people or bodies who act in these capacities for the cities are heard de novo l except in the application of the authority to zone. where the question on appeal is whether or not the city was arbitrary. a Chancery case. I am not gOing to surrender your atlention to DaVid and Sam who will inform you of those methods by which you Initiate the opportunity to apply the lesson contained In Judge McFaddln's opinion. :I
-.....
I .1
~
1111
JURIS DICTUM by C. R. Huie
Executive Secretary, Judicial Department
The Annual Report of the Judicial O&partment containing court stallstlcs for the year 1975 will, In the very near future, be completed and sent to the printer. While statistics as a general rule make dull reading, Increased public Interest In the progress and conduct of our court system should make the following porlions of the Report Interesting to lawyer and layman alike. In this Issue we will cover the Supreme Court and Courts of General Jurisdiction (l.8.w, Equity, and Probate). In a subsequent Issue we will discuss Courts of Umffed Jurisdiction. (Municipal, City, and J.P.)
recorded during 1974 and surpassing the old record set in 1972 by nearly 15%. Total petitions terminated during 1975 (156) were stable as compared with the number recorded during 1974 (155), with civil petitions declining by six and criminal petitions rising by seven. Motions decided (excluding those for time extension) declined slightly during 1975 as compared with 1974, from 179 to 165. Criminal motions rose by 25.3%, however, while civil petitions declined by 38.8%. Motions granted for extension of time increased tremendously during 1975 as compared with 1974, rising from 737 to 991. The increase represents a gain of
THE SUPREME COURT
34.4%, with criminal time extension mo-
tions climbing by 69.4% and civil by During 1975 the Arkansas Supreme Court continued to maintain a singularty high standard of production and elliciency. The Arkansas Supreme Court's total workload is measured in terms of the appeals, petitions, and motions (excluding those for extension of time) of which final disposition is made during a calendar year. Workload is also measured in another fashion: Total majority opinions written denominated into a per-justice
average. A barometer for measuring the efficiency of the Court's operations in dealing with its workload is its currency, that is, whether all cases under sut>mission are concluded prior to the summer recess. Over the years the Arkansas Supreme Court has compiled a remarkable record in remaining current. All indications are that this record will continue. The Supreme Court's totai workload of 800 appeals, petitions, and motions (excluding those for time extension) during 1975 was the second highest of record, exceeded only by the total of aos recorded during 1972. The 479 appeals handled by the Court during 1975 represents an all-time high and an increase of 8.9% eNer the level recorded during 1974. Criminal appeals totaled 165 during 1975, and account for a major part of the increase, rising by an astounding 60.6% eNer the level of 127
12.0%.
Justices of the Arkansas Supreme Court wrote an average of over 65 opinions each in 1975, as compared with an average of 56 during 1974. Majority opinions totaled 456 in 1975, an increase of 9.0% over the 418 written during 1974. Not included in the per-justice average are: concurring opinions, 17 of which were written in 1975 compared with 11 in 1974; dissenting opinions, up from 36 in 1974 to 41 in 1975; per curiam opinions, 13 in 1975 compared with 10 in 1974; and opinions dissenting in part and concurring in part, 7 in 1975 and 9 in '974. The seven Justices of the Supreme Court produced a grand total of 534 written opinions during 1975. 1975 marked the first full year during which Supreme Court Rule 21, which provides for non-publications of opinions which do not meet certain cri-
teria (value as precedent, public interest, etc.), was in ellect. Not quite hail (201) of the Supreme Court's 456 majority opinions (not including per curiam) were designated by the Court as "Not for Publication". As noted abeNe, 1975 was a near-record year for the Arkansas Supreme Court. with wor1<load remaining well abeNe what might be considered a "breaking point". Following an astounding increase in wor1<load during 1972, the Court's workload has been relatively stable and has fluctuated by an average
of only 0.1 % from year to year since
1972. GENERAL JURISDICnoN COURTS Trial courts of general jurisdiction in
Arkansas are the Circuit and Chancery Courts. Circuit courts are courts of law; chancery cou rts are courts of equity, a geographical area eNer which a Circuit Judge presides is referred to as a Judicial Circuit; Chancellors preside eNer Chancery Circuits. In addition to presiding eNer Chancery Courts, Chancellors also preside over Probate Courts. The boundaries of Judicial and Chancery Circuits are not necessarily contiguous;
in fact, in only three instances do Judicial and Chancery Circuits embrace the same geographical area.
A. CASE FILINGS Circuit Courla Total filings in Cineuit Courts stat&wide increased during 1975 by 14.5% eNer the level set during 1974, rising to an all-time high of 32,795. After a dramatic increase during 1974, Capital case filings fell from 233 that yearto 178 in 1975, a decline of 23.6% Felony filings during 1975 rose by 15.7%, from 7,479 during 1974 to 8,657. Misdemeanor filings declined slightly during 1975, from 4,277 during 1974 to 4,152, a decrease of 2.9%. Total criminal case filings rose by 8.3% this past year. from 11,989 during 1974 to 12,987. Civil case filings increased by 18.9% during 1975 over the level posted during 1974, from 16,653 to 19,808. In only one Judicial Cineu it, the Eighteentb. did filings drop during 1975, failing slightly from 610 during 1974 to 598, a drop of oniy twelve cases. Filings in all other Judicial Circu its rose, led by the Sixth with an increase of 670 and the Twelfth with an increase of 628. Table I reflects total circuit court filings statewide per year for the ten-year period 1966-1975. Note that the case filing increase during 1975 was the highest ever, and reflects the third highest percentage increase during the past ten years. Continued on page 128
July 1976/Ar1<ansas Lawyer/127
Juris Dictum Continued from page 127
TABLE I CIRCUIT COURT FILINGS 1966-1975 CHANGE FROM PRECEDING YEAR YEAR 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975
F1UNGS 17,758 18,893 18,2ij2 21,158 22478 21,109 21,991
+ +
AMOUNT 875 1,135
631 2,896
+
+
1,320 1,369
+
882 2,988
+
24,979 28,642
+ +
32,795
Chancery end Probate Courts Total Chancery filings (excluding Probate) increased slightly during 1975, rising from 28,055 during 1974 to 28,791, an increase of 2.6%. Equity filings during 1975 fell by 4.5%, from 5,931 during 1974 to 5,663. Domestic relations filings increased by 4.2%, from 20,346 during 1974 to 21,208 during 1975. Reciprocal support cases "in" rose slightly, from 1052 during 1974 to 1463 during 1975, an Increase of 14.6; reciprocal support cases "out" fell from 728 during 1974 to 714 during 1975, a drop of 1.6%.
3,663 4,153
+
+
+ + +
+ +
+
PERCENT 5.18 6.39 3.34
15.85 6.24
6.09 4.18 13.05 14.66 1U9
The first Chancery Circuit experienced a decline in case load for the first time on record, but the decline was slight; the Fifth, Tenth, and Sixteenth Circu its also reflected case filing declines, but the decreases were likewise slight. All other Chancery Circuits posted gains in filings during 1975, led by the Eighteenth with an increase of 226, a 38.4% rise. Probate workload during 1975 increased to the highest level yet recorded with 9,842 filings, but the increase was only 3.0% over the 1974 level of 9,553.
TABLE fI CHANCERY COURT FILINGS 1966-1975 CHANGE FROM PRECEDING YEAR YEAR 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975
F1UNGS 16,184 16,988 17,490 18,921 19,438
21,326 24,532
25,824 28,055 28,791
+
AMOUNT
+ + +
1,425
+
804
+
502 1,431
+
517
+ +
1,888 3,206
+ +
1,292 2,231 736
+
+
+ + +
+ +
+ +
PERCENT 9.66 4.96 2.95 8.18 2.73 9.71 15.03 5.26 8.63 2.62
TABLE III PROBATE FILINGS 1966-1975 CHANGE FROM PRECEOING YEAR YEAR 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975
F1UNGS 9,067 9,069 8,904 9,330
AMOUNT + + +
2 165 426
+ +
535 639 402
8,795
9,434 9,836 9,117 9,553 9,842
128/Arkansas Lawyer/July 1976
1,041
+
119 164 289
+ + + + + +
PERCENT 12.97 .02
1.81 4.78 5.73 1.26 4.26 1.20 1.68 3.02
Decedents' estates filings last year rose by 1.1 'Yo, guardianship filings increased by 10.8%, commitment actions rose by 3.4%, adoption filings rose by 3.2%, and miscellaneous filings declined by 2.4%. Nine Chancery Circuits reported declines in Probate filings for 1975, but the decreases were negligible. The other nine Circuits posted increases, but for the most part the gains were slight. Tables II and III reflect statewide Chancery and Probate filings for the tenyear period 1966-1975. These filings are listed separately because of the different natures of the two classifications of filings. B. CASE DISPOSITIONS As case filings increase from year to year, likewise must dispositions in order to keep pace with burgeoning caseloads. General jurisdiction Judges in Arkansas have done a remarkable job over the years in keeping pace with skyrocketing legal activity, which has nearly doubled (in terms of filings) during the past ten years. Circuit Courta Case dispositions in Circuit Courts climbed dramatically during 1975, increasing by 22.1% over the 1974 level. A total of 31,310 cases were terminated during 1975, as compared with 25,639 during 1974. All but two Judicial Circuits terminated more cases during 1975 than in 1974, and the decreases in those two circuits were slight. Many of the percentage increases in terminations were astounding, notably the Ninth (+81.8%), Fifteenth (+45.8%1, Fifth (+41.9%), and Second (+36.1 '!o). Table IV reflects statewide Circuit Court dispositions per year during the ten-year period 1966-1975. Chancery Court, Chancery Court terminations (excluding Probate) increased by 5.9% during 1975 over the 1974 level. A total of 27,045 Chancery cases received final disposition during 1975, as compared with 25,535 during 1974. Four Chancery Circuits reflected slight declines in terminations during 1975 as compared with 1974; all others posted increases, led by the Eighteenth Circuit with a remarkable increase in terminations of 85.9% and the Eighth Circuit with an increase of 59.0%. Table V reflects Chancery Court terminations statewide per year for the tenyear period 1966-1975. C. AGE OF CASES PENDING Circuit Courta As noted earlier in this section, disposition of cases in Circuit Courts during 1975 rose by more than 22% over the 1974 level. Although filings exceeded terminations, the total number of cases pending at the end of the 1975 over
two years of age was nevertheless 1.8% lower than the figure a year previous. Cases pending Oller two years of age at the end of 1975 comprised 11.7% of the total number of cases pending, compared with 12.8% at the end of 1974 and 13.9% at the end of 1975. Criminal cases over two years of 8ge at the close of 1975 accounted for 11.1%
of total criminal cases pending, compared 8.4% in 1974 and 9.7% at the end of 1973. Civil cases pending Oller two years of age comprised 12.0% of total civil cases pending, compared with 14.9% in 1974 and 15.9% at the close of 1973. Ten JUdicial Circuits reflect less than 10% of total cases pending to be Oller
TABLE IV CIRCUIT COURT DISPOSITIONS 1966-1975 INCREASE OR DECREASE YEAR
16,923 18,998 18,664
19,316 20,559
22,046 20,913 23,155
19n
1973 1974 1975
25,639 31,310
PERCENT
AMOUNT
TlORMINAll0NS
1966 1967 1968 1968 1970 1971
+ +
2,695 2,075
+ + +
662 1,243
+ + +
334
1,487 1,133
2,242 2,484 5,671
+ +
18.94 12.26 1.75
+ + +
3A9
+ + +
6A3 7.23 5.14 10.73 10.73 22.11
19.00 16.06 25.04 13.61 6.18 16.20 9.13 1.88 14.75 6.00
decision-making process, and, in most circuits, agency decisions themselves under the arbitrary and capricious standard. The price for sucn assurance can, however, be high. The NEPA process inevitably involves slow-downs in agency decisions and further slow路 downs as a result of complicated and expensive litigation. Slow-downs tend, in turn to increase costs-particularly where litigation results in temporarily halting construction and spreading it out over a longer period. And increased costs are a drain on governmental and private resources, a contributor to inflation, and a. factor that can hardly be ignored in the present economic environment.
NEPA has been on the statute books for less than six years. This is a short period for testing so basic a change in the nature of the Federal decision-making process and in the role of the courts in relation to that process as NEPA entails. It remains to be seen whether the delays and added costs reSUlting from NEPA in its present form will prove tolerable over an extended period, and whether it may be possible to devise modifications which will reduce such delays and costs substantially while still assuring that environmental considerations will be taken adequately into account in the decision-making process. J-~
INCREASE OR DECREASE AMOUNT TlORMINAll0NS
1966 1967 1968 1968 1970 1971
14,518 16,929 21,230 18,329 17,195
19,997
19n
21,820
1973 1974 1975
22,231 25,512 27,045
environmental Continued from page 114
both the agency level through the environmental impact statement procedure, and in the courts through litigation which tests the adequacy of the agency
CAVEAT All in all, 1975 marked a banner year for increased efficiency in production by the Arkansas Court System. However, this caveat must be noted. While the total workload of the Judiciary has increased almost 100 percent in the past ten years, the number of judges available to handle the Increased burden has grown by only 22 percent. While Act 325 of 1975 prOliided for one additional Circuit Judge and 3 additional Chancellors, a straightforward look at the trends in rising pOPulation, substantial increases in court filings, and other relevant factors brings us to the inevitable conclusion that additional judicial manpower must be made available during the next decade if the courts are to survive as the arbiter of our disputes and the dispensers of justice. J
TABLE V CHANCERY COURT DISPOSITIONS 1966-1975 (NOT INCLUDING PROBATE
YEAR
two years of age, notably the Ninth with only 1.7% of cases pending Oller two years old. Chancery Courts Cases pending Oller two years of age in Chancery Courts accounted for 32.2% of total cases pending at the close of 1975, compared with 31.7% at 1974's end. 42.1% of all equity cases pending at the year's end were Oller two years old; 27.6% of all domestic relations matters pending were in excess of two years. Eight Chancery circuits reflect more than 10% of total cases pending to be Oller two years of age, notably the First Circuit with 56.4%. Seven Circuits show less than 5% of total cases pending to be over two years of age, notably the Third with 1.0% and the Second and Tenth, each with 2.2%.
+ + +
2,318 2,411 4,301 2,902
+ + + + +
2,802
PERCENT
+ + +
1,133 1,823
411 3,281 1,553
+ + + + +
-....
July 1976/Arkansas Lawyer/129
In memoriam Let your speech be always with graca, ..asoned with salt, that 18 may know how 18 ought to answer wery men. COLOSSIANS .f.~
WILLIAM M. SPARKS
1905-1976 WILLIAM MITCHELL SPARKS, age 71. died March 14, 1976, in Hope. Arkansas. Mr. Sparks was born March 5, 1905, in Newton County, Arkansas, the son of Mr. and Mrs. John Milton Sparks of Parthenon, Arkansas. He was a graduate of the University of Central Arkansas (formerly Arkansas State Teachers College) in Conway. and a graduate of the School of Law, LaSalle Extension University. He did graduate work in the field of agronomy at Texas A & M College. He served in the public schools of Arkansas 1926 to 1939, as teacher, superintendant and coach. From 1939 to 1969, he served with the U.S. Department of Agriculture, Farmers Home Administration in Ouachita County, in Hope, and in Pulaski and Hempstead Counties, and with the Small Business Administration in Little Rock. He retired from Federal service in December 1969, and moved back to Hope, where he served as district legal aid attorney for social services in the 13 counties of the Southwest and South Central Section of the State, and engaged in the general practice of law from September 1974 until January of this year. He was a deacon of the First Baptist Church in Hope and formerly of Immanuel Baptist Church in Little Rock. He was a member of the Kiwanis Club, having served as past presi-
130/Arkansas Lawyer/July 1976
dent and past lieutenant governor of the Missouri-Kansas-Arkansas District. He was a member of the Southwest Arkansas Bar Association, Hempstead County Bar Association, and Arkansas Bar Association. Survivors include his wife, Winnie, one daughter, Mary Jean (Mrs. C. E.) Noyes, of Marlboro, New Jersey, two sisters, one brother, two grandchildren, and a number of nieces and nephews. CHARLES C. CONWAY CHARLES C. CONWAY, aged 51, died May 16, 1976, at Texarkana, Arkansas. Mr. Conway was born at Texarkana, the son of the late George Taylor Conway and Mary Cecilia O'Dwyer Conway. Mr. Conway attended St. James Academy at Texarkana and was graduated from the University of Arkansas Law School in 1949. At the time of his death, he was a member of the firm of Smith, Stroud, McClerkin, Conway and Dunn. In 1961, the late President John F. Kennedy named him United States District Attorney with headquarters at Fort Smith. He resigned in 1969 to return to Texarkana to resume the practice of law. Mr. Conway was a former Texarkana city attorney, deputy prosecuting attorney and served as a special justice of the Arkansas Supreme Cou rt. He was a past president of the Texarkana Bar Association. He was one of the original members and first president of the South-
west Arkansas Water District, and a member and past president of the Texarkana Special Education Board and the Knights of Columbus; was chairman of the St. Michael's Hospital Development Program and the Red Cross Board. He was a member of St. Edward's Catholic Church and served on the Church's Paris Council. He was active in athletic events for children, such as Little League. He served in the Navy during World War II. Survivors are his wife, Hazel Dod路 son Conway; two sons, Charles Mitchell and Michael Conway, both of Texarkana; two daughters, Melinda and Mary Conway, both of Texarkana, and two sisters. OTTO R. BRIOGFORTH
1905-1976 Mr. Otto R. Brldgforth died March 18, 1976, at Forrest City, Arkansas. He was born April 21, 1905, in Forrest City and was the son of Mrs. Norma Rollwage Bridgforth and Dr. David T. Bridgforth. He had lived all of his Iile In Forrest City and was a retired businessman, associated with Vaccaro Lumber Cmmpany for the past 43 years. He was a member of the Episcopal Church of the Good Shepherd and a member of the Arkansas Bar Association. He leaves his wife, Lucille Bridgforth of Forrest City; two sons, Otto R. Bridgforth, Jr. of Forrest City and Bill Bridgforth of Pine Bluff; a brother, a sister and three grandchildren.
ADDENDA by C. E. Ransick Editor
PROFESSIONAL RESPONSIBILITY The Arkansas Bar Association I has sent a copy of this ABA pamphlet to each member, with a letter of March 5, 1976 from Chairman Edward B. Dillon, Jr. of the Professionai Ethics and Grievances Committee. Mr. Dillon points out that "90% of the complaints processed .against lawyers involve one or more of the matters discussed in this pamphlet", and that "careful reading of the contents of this pamphlet, and application thereof, will go a long way toward improving both the standards and the reputation of the profession".
CREDITS The Continuing Legal Education Committee of the Pulaski County Bar Association has been particularly active during the past year. Under the guidance of Chairman Cooper Jacoway, a series of papers was delivered by various lawyers at the Association's monthly meetings. We are indebted to Chairman Jacoway, the speakers and the Pulaski County Bar Association for permission to reprint some of these papers in The Arkansas Lawyer. The first was pUblished in the January 1976 issue - "Basic Considerations in Employment Discrimination Litigation" by Jerry D. Jackson. Three more are published in this issue - "To Strike or Not to Strike - That is the Issue" by James W. Moore; "Background and Operation of the National Environmental Policy Act" with Professor Robert H. Marquis; and "Land Development and Zoning" with Perry V. Whitmore. As additional papers from the series are published, we will note their origin. "NO-FAULr' AUTOMOBILE INSURANCE The Arkansas Bar Association is being given the "credit" for defeating Senate Bill 354, the "National Standards for No-Fault Insurance Act". At the February, 1976 meeting of the Co-Ordinating Committee of National Bar Presidents in Philadelphia, Arkansas Bar President Robert C. Compton contended that a factual study was needed on "no-fault" experience. A study, "The Current Facts on National NoFault: March 17, 1976", was completed. Mr. Compton hand delivered the study to Senator John L. McClellan with a letter, dated March 17, 1976. On
March 22, 1976, Senator McClellan made a strong statement against no-fault before the Senate, and then caused Mr. Compton's letter and related study to be published in the Congressional Record, at S3896 and 83897, of the same date. On March 31, 1976, by a vote of 49 to 45, the Senate recommitted Senate Bill 354 to the Senate Commerce Committee. Then the motion to reconsider was tabled by a vote of 47 to 45. Arkansas Senator Dale Bumpers joined Senator McClellan in the voting. "This action seems likely to kill no-fault in the Senate for the balance of the year," according to Jurisdata's Weekly Report to the Bar.
CELEBRITY QUESTIONS Q: Where did this picture and caption appear? A: Under the syndicated column, "Celebrity Questions", in the Thursday, March 11, 1976, State issue of the Arkansas Gazette. Q: Who he? A: Certainly not Jackie Coogan - but ... JACKIE COOGAN
Tom Sawyer in 1930
LOCAL BAR ASSOCIATIONS The Arkansas Bar Association is prepared to assist lawyers in establishing local county law associations in Arkansas by furnishing proposed constitutions and bylaws, etc. Three new associations have recently been founded: FRANKLIN COUNTY BAR ASSOCIATION President: Gregory P. McKenzie Vice-President: Joe Ramos Secretary-Treasurer: Orvill C. Clift NAVADA COUNTY BAR ASSOCIATION President: James H. McKenzie Secretary: Joe M. Fore FULTON, IZARD AND SHARP COUNTY BAR ASSOCIATION President: Paul E. Hopper Vice-President: Herbert L. Ray Secretary-Treasurer: Forrest E. Dunaway July 1976/Arkansas Lawyer/131
1SEMI路LEGAL CROSSWORD PUZZLE
We wish to acknowledge the submission of the crossword puzzle, which appeared in the April 1976 issue of The Arkansas Lawyer, page 86. Vic Fleming, a first year law student at the UALR Law School, is the author. We have no knowledge of a crossword puzzle being published In anyother legal journal. Perhaps, we can get Association Justice George Rose Smith of the Arkansas Supreme Court - a well-known puzzler - to do the next honors.
cisco, California, who now is showing and winning with him under a professional handler on the West Coast A.K.C. show circuit. At the 1976 International Foxhound show at Tulsa, he also won best opposite-sex puppy in the puppy show (under 12 months of age) with the young nine months old bitCh. (see picture). He also won best opposite-sex With her In the Grand Royal Foxhound puppy show in March 1976. Since the 1976 International Show, he has won the Arkansas and the Tennessee state championships with M & B Country Bumpkin, an older brother of the bitch puppy. POETIC CHALLENGE It is an editor's privilege to publish the unusual. The following poem was delivered as part of the author's address before the Phi Alpha Delta Law Fraternity, Robinson Chapter, on March 23, 1976. Her book, "Family Law Practice and Procedure Handbook", published by Prentiss-Hail, shows how to build a Family Law practice for sensitive, effective service and personal success. Her poetic challenge calls for better legal services in Family Law. "IN THE MATTER OF FAMILY LAW"
In Family Law, you come to see No game to win, no client to free. In you is placed a person's trust That you will guide him to be justl
A LAWYER'S BEST FRIEND
John B. Moore, Jr. of Clarendon, Arkansas went by the nickname "Coon Dog" when in law school. In fact he carried some of his hunting dogs to school and kept them at the fraternity house. So, you can see he "went to the dogs" years ago. He started breeding and training hounds as a teenager during the 30's and has been at it ever since. In past years he bred hou nds that would compete both in the field and in the shows. Two years in succession he won the Arkansas State Foxhound field trial with a bench show winner. Due to the increase in the deer population and cleanng of wood lands for cultivation, he has quit breedIng for field trial performance and has concentrated on conformation for shows. In January 1976 he won the International Foxhound Show all age championship held in the main ballroom of the Camelot Inn at Tulsa, Oklahoma, with a dog he bred named M & B Thunder. In 1975 he finished the same hound as an A.K.C. Champion and won the Mississippi State championship. After the International Foxhound show he sold M & B Thunder to a C.P.A. from San Fran132/Arkansas Lawyer/July 1976
This realm is not to win or lose, To light a torch, or spark a fuse; You apply wise counsel to soothe and calm In effort to spread your legal balm. You may represent anyone of the clan, The woman, little child, or the big man. Yet peaceful unit is the basic goal For which all caution bells must toll! Proceed more slowly toward final trials, No need to rush the parting miles. Little children are your prime concerns With parental loyalty each heart burns, Negotiate, counsel, and arbitrate! Your office procedure can set the fate For each client's future, calm and bright, Because you tell him what is right. Family Law is largely the Golden Rule, You teach your client as though in school To fix new goals on legal scales, As balanced equity never fails. Family law cases are frustrating work, A duty from which you must not shirk! Your client could fall into other hands Provoking doom in his hour-glass sands. -Neva B. Talley-Morris
.I. ""
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