The Arkansas Lawyer Winter 2016 by Arkansas Bar Association

The Arkansas

Lawyer A publication of the Arkansas Bar Association

Inside: Same-Sex Marriage Judicial Campaign Finance The Arkansas Supreme Court During World War II Arkansas LLCs Guardianships of Minors

Vol. 51, No. 1, Winter 2016 online at www.arkbar.com

OVERCOMING OBSTACLES To SUCCESS at the

#ArkBar

Annual MEETING

June 15-18, 2016

it’s our best event of the year.

Over the course of four days of continuing legal education, with three full days of substantive

law, you will takeaway tools and skills that can improve your practice. The combination of local and national speakers provide our widest range of CLE this year. Over 1,200 attorneys and judges attend each year, making the ArkBar Annual Meeting the best event to connect with attorneys from across the state.

Competing Fair and Winning: A View of Ethics, Integrity and the Legal Issues from Inside the U.S. Postal Services Pro Cycling Case

Plenary Session, Thursday, June 16 - 12:45pm

The “win-at-all costs” culture seems to have taken over all levels of competition— athletic and otherwise. Many have lost confidence that integrity still matters and that you can still truly win competing fairly. This talk will explore this cultural shift in sports and provide insight to the work of the independent National Anti-Doping organization, the United States Anti-Doping Agency (USADA), and its mission to protect the rights of those athletes competing fair and to ensure a playing-field free of performance-enhancing drugs for all competitors.

Travis T. Tygert

CEO, US Anti-Doping Agency

PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Jim L. Julian, Chair Haley Heath Burks Judge Brandon J. Harrison Ashley Welch Hudson Anton Leo Janik, Jr. Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. Tasha C. Taylor David H. Williams OFFICERS President Eddie H. Walker, Jr. Board of Governors Chair R. Scott Zuerker President-Elect Denise Reid Hoggard Immediate Past President Brian H. Ratcliff President-Elect Designee Anthony A. (Tony) Hilliard Secretary F. Thomas Curry Treasurer Shaneen K. Sloan Parliamentarian Leon Jones, Jr. Young Lawyers Section Chair Matthew L. Fryar BOARD OF GOVERNORS Arkie Byrd Thomas M. Carpenter Sterling Taylor Chaney Suzanne G. Clark Don R. Elliott, Jr. Frances S. Fendler Buck C. Gibson Amy L. Grimes Paul W. Keith Leslie J. Ligon Jeffrey Ellis McKinley Jerald Cliff McKinney II Wade T. Naramore Laura E. Partlow Kristin L. Pawlik Brant Perkins Robert M. Sexton Derrick W. Smith Brian A. Vandiver Danyelle J. Walker Andrea Grimes Woods

The Arkansas

Lawyer Vol. 51, No. 1

features

14 Round Pegs and Square Holes: How Same Sex Marriage Does Not Fit Neatly Into Arkansasâ&#x20AC;&#x2122; Existing Statutory Framework By Angela Mann and Jack Wagoner 20 Judicial Campaign Finance: Can the Independence, Integrity and Impartiality of the Judiciary Survive Unlimited Stealth PAC Expenditures in Judicial Elections? By Tim Cullen 28 The Arkansas Supreme Court Goes to War: A Sampling of Legal Issues Confronted by the Court During World War II By J. Cliff McKinney 34 Beyond Direct vs. Derivative: What Muccio v. Hunt Tells Us About Arkansas LLCs By Allison R. Gladden 40 The Arkansas Supreme Court Clarifies the Standard for Terminating Consensual Guardianships of Minors By Andy Taylor

LIAISON MEMBERS Brian M. Clary Karen K. Hutchins Judge James O. Cox Jack A. McNulty Judge David F. Guthrie Richard L. Ramsay Stephen A. Hester Judge Chaney Taylor The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2016, Arkansas Bar Association. All rights reserved.

Cover photo by Michael Pirnique. Pictured is the plaque honoring Arkansas lawyers who served in World War II located outside of the old Supreme Court Chambers at the Arkansas State Capitol. Contents Continued on Page 2

Lawyer The Arkansas Vol. 51, No. 1

in this issue ArkBar News

House of Delegates Report

2015-2016 Board of Governors

A Call to Leadership

CLE Calendar

2015 CLE Speakers and Planners

Disciplinary Actions

Arkansas Bar Foundation Memorials and Honoraria

In Memoriam

Classified Advertising

columns Presidentâ&#x20AC;&#x2122;s Report

Eddie H. Walker, Jr.

Young Lawyers Section Report

Matthew L. Fryar

you are the experts contact the association if you have article ideas for the arkansas lawyer magazine. Email: ahubbard@arkbar.com or call 501-375-4606

Arkansas Bar Association

2224 Cottondale Lane, Little Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District A-1: Margaret Alsbrook, Jon B. Comstock, Andrew T. Curry, Angelia Esparza Muldoon, John Peskek, Ryan Scott, Vicki S. Vasser-Jenkins Delegate District A-2: William Fitzgerald Clark, Bob Estes, Matthew L. Fryar, Michael Scott Hall, Jason M. Hatfield, Brian C. Hogue, Leon Jones, Jr., Joshua D. McFadden, W. Marshall Prettyman, Jr., Sarah A. Sparkman, Rick Woods Delegate District A-3: Aubrey L. Barr, Veronica Lawson Bryant, Michael Alan LaFreniere, Candice A. Settle, Samuel M. Terry Delegate District A-4: Sam D. Snead Delegate District A-5: Wade A. Williams Delegate District A-6: John D. Van Kleef Delegate District A-7: Samuel J. Pasthing Delegate District B: John T. Adams, Amber Wilson Bagley, Carrie E. Bumgardner, Bart W. Calhoun, Kenya Gordon Davenport, Edie Ervin, Caleb Peter Garcia, Shana Woodard Graves, Stephanie M. Harris, James E. Hathaway III, Christopher Heil, Glen Hoggard, Amy Dunn Johnson, Jamie Huffman Jones, Joseph F. Kolb, William C. Mann III, Patrick W. McAlpine, Kathleen Marie McDonald, Jeremy M. McNabb, Chad W. Pekron, John Rainwater, Robin L. Sullivan, W. Carson Tucker, Jonathan Q. Warren, J. Adam Wells, David H. Williams, Thomas G. Williams, George R. Wise, Jr., Kim Dickerson Young Delegate District C-1: Roger U. Colbert Delegate District C-2: Michelle C. Huff Delegate District C-3: Robert J. Gibson, Hunter J. Hanshaw, Jason Mark Milne Delegate District C-4: Kara Lynn Byars Delegate District C-5: Matthew Coe, Sara Rogers, Albert J. Thomas III Delegate District C-6: Michael L. Murphy Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Kandice A. Bell, Brent J. Eubanks, John P. Talbot Delegate District C-9: Chase Adam Carmichael, Jenny Denise Chambers-Lemoine, Lee Douglas Curry Delegate District C-10: George M. Matteson Delegate District C-11: Sterling Taylor Chaney, Taylor Andrew King Delegate District C-12: Kurt J. Meredith, Michelle M. Strause Delegate District C-13: Brian M. Clary, John Andrew Ellis, Law Student Representatives: David Trent Harrison, University of Arkansas School of Law; Eruore O. Oboh, UALR William H. Bowen School of Law

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Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

ArkBar News Anthony A. (Tony) Hilliard Elected ArkBar President-Elect Designee

2016 - 2017 Legislative Calendar

Anthony A. (Tony) Hilliard is the new Arkansas Bar Association President-Elect Designee following a ballot count in December. Mr. Hilliard is an attorney with Ramsay, Bridgforth, Robinson and Raley, LLP in Pine Bluff. Mr. Hilliard’s involvement in the Bar includes serving on the House of Delegates; the Board of Governors as a Governor and Chair; Chair of the Tax Section; Secretary/Treasurer of the Arkansas Bar PAC; chairing several committees; and teaching CLE programs. Anthony A. (Tony) Mr. Hilliard joins the Association’s leadership track comHilliard posed of President Eddie H. Walker, Jr., President-Elect Denise Reid Hoggard, and Immediate Past President Brian H. Ratcliff. Mr. Hilliard will assume the office of President-Elect at the June 2016 Annual Meeting and President at the June 2017 Annual Meeting.

Arkansas Bar Association Timeline February – April, 2016: The ArkBar Jurisprudence and Law Reform Committee (JLRC) reviews bills submitted and selects what will be proposed for the Association legislative package. They may select up to 10 bills for the package. April 22-23, 2016: JLRC presents proposed legislative package to Board of Governors for their information. June 17, 2016: JLRC presents proposed legislative package to the House of Delegates for approval. The bills must be approved by a two-thirds vote. The House of Delegates may also add up to three additional bills to the package with a three-fourths vote. January – April 2017: The Association lobbyist works with legislators to get all bills in the ArkBar package filed and passed.

ArkBar 2016 Mid Year Meeting held in Little Rock January 27-29

Arkansas 91st General Assembly Calendar: February 14, 2016: Bill filing opens April 13, 2016 - May 2016: 91st General Assembly Fiscal session The Arkansas Bar Association hosted a reception sponsored by Stephens Insurance, LLC in the Pinnacle Room of the Marriott Hotel on January 28. Association President Eddie H. Walker, Jr., welcomed around 150 attorneys, judges and their guests to the event. The reception was part of the association’s mid year meeting which included two and one- half days of continuing legal education seminars held at the Capital and Marriott Hotels. Kathleen M. McDonald of Little Rock served as the chair of this year’s meeting. Anthony A. Hilliard and J. Nicholas Livers served as planners for the Probate & Trust Law Track. The new AttPro Risk Management Seminar kicked off the meeting on Wednesday afternoon followed by a reception at the Capital Hotel sponsored by AttPro and Stephens Insurance, Inc. Almost 100 attorneys attended the seminar that introduced ArkBar’s new professional liability insurance program. Pictured above top: Jeff Rosenzweig, Kathleen McDonald and Larry Jegley; belowBill Cobb with Stephens Insurance 4

The Arkansas Lawyer

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Arkansas 92nd General Assembly Calendar November 15, 2016: Bill filing opens January - April 2017: 92nd General Assembly session. The ArkBar Legislation Committee meets every Friday afternoon to review every bill filed during the session. They discuss filed bills, refer information to sections, and receive a lobbyist update on the ArkBar package and other bills of interest to the Association. January – April 2017: The Association sends out bill information to members and sections via its legislative advocacy resources. This includes the Legislation Corner of the weekly e-newsletter, the Legislative Resources website, and ACE communities.

ArkBar News Oyez! Oyez! ACCOLADES The National Conference of Bar Foundations (NCBF) recently honored William A. Martin, former Executive Director of the Arkansas Bar Association and the Arkansas Bar Foundation, with the NCBF Excellence Award in recognition of outstanding contributions to law-related philanthropy by an individual. Martin has worked with Bar Foundations at national, state, and local levels, encouraging and guiding them and their members with leadership, advice, and assisMary Lou and tance in the 32 years since his retirement from the Air Force. Bill Martin Brad J. Williams recently earned the ACS-CHAL Forensic LawyerScientist designation, one of only 38 in the world, and the first in Arkansas. The Arkansas Judges and Lawyers Assistance Program awarded the Arkansas Bar Association with the JLAP Distinguished Service Award. John Wesley Hall’s blog FourthAmendment.com was included in the American Bar Association’s “ABA Journal’s Blawg 100,” the annual list of the best blogs about lawyers and the law.

APPOINTMENTS AND ELECTIONS Tom Kennedy of Little Rock was appointed to the Arkansas Tech University Board of Trustees. Chris Palmer was appointed to the Alcoholic Beverage Control Board. Andrea D. Walker was reappointed to the Arkansas Access to Justice Commission. Ashley Driver Younger was appointed to the Arkansas Ethics Commission

WORD ABOUT TOWN Quattlebaum, Grooms & Tull PLLC announced that R. Ryan Younger has been named a member of the firm. Cypert, Crouch, Clark & Harwell, PLLC in Springdale announced that Ellen J. Tinnin has joined the firm as an associate attorney. Dodds, Kidd and Ryan announced that Chris Palmer and Price Freeland joined the firm as associates. Skye Martin has opened a new law firm, Skye Martin Law in Little Rock, focusing on family law and contract review. Steel, Wright & Collier, PLLC announced that Alex Gray and Jeremy Hutchinson, current Arkansas State Senator, have joined the firm as partners. Nate Coulter is the new executive director of the Central Arkansas Library System. Friday, Eldredge & Clark, LLP announced that Tom Mars joined the firm as senior counsel. PPGMR Law announced that Micah Goodwin joined the firm.

Thank You to the Member-Get-a-Member Recruiters We have new members thanks to the following members who recruited a colleague to join or renew membership in the Association: Raymon B. Harvey, Stephen A. Lisle, Cliff McKinney, Orin Eddy Montgomery and James Swindoll. These members know the value of being an ArkBar member.

Value of Membership

“Lawyers are a special breed. If we would communicate with each other and share our gifts and talents with each other we could be even more special. I think if people understand the value of the Arkansas Bar Association, then it’s really a nobrainer to become a member.” --President Eddie H. Walker, Jr.

Deadline for submission of Annual Award Nominations due Friday, March 11, 2016

It is time to nominate deserving candidates for this year’s Arkansas Bar Foundation and Arkansas Bar Association Annual Awards. The awards open for nomination are: • Outstanding Lawyer Award • Outstanding Lawyer-Citizen Award • C.E. Ransick Award of Excellence • James H. McKenzie Professionalism Award • Equal Justice Distinguished Service Award • Outstanding Jurist Award • Outstanding Local Bar Association These awards will be presented at the Annual Meeting in Hot Springs in June. You are encouraged to nominate Arkansas lawyers, judges and local bar associations who deserve recognition. Nomination forms may be submitted by any Association member or Foundation Fellow. Forms are available at www.arkbar.com/awards or by calling Ann Pyle at the Arkansas Bar Foundation at 501-375-4606.

Nominate a Colleague for the Lawyer Community Legacy Award Nominations Due February 28, 2016 Do you know an unsung hero or heroine? Submit nomination online at www.arkbar.com/for-attorneys/ award-nominations

We encourage you to submit information for publication in Oyez! Oyez! Please send to ahubbard@arkbar.com. Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

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PRESIDENT’S REPORT

Lawyer-Citizen By Eddie H. Walker, Jr.

A few months ago I attended a naturalization ceremony and I was amazed by the excitement of the immigrants and their family and friends regarding the fact that they were about to become U.S. citizens. It caused me to reflect upon how many who were born U.S. citizens simply take for granted the privileges that come with that status and forget the responsibilities of citizenship. One of the primary responsibilities of citizenship is to protect and defend the Constitution of the United States. The preamble to that cherished document provides: We the People of the United States in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Lawyers, as judges, and lawyers, as advocates, of course play important roles in determining how the Constitution shapes society. However, we must not

“Lawyers are trained to solve problems we did not create and to anticipate things that non-lawyers would likely overlook. We understand that looking forward is usually more productive than looking back. “ forget the importance of lawyers as citizens. Lawyers, as everyday citizens, are involved in community activities and voluntarily commit time, talent and resources to improving society; however, we are uniquely suited to participate in the political process by becoming members of the state legislature. Historically, lawyers have had major roles in the legislative process at both the state and national levels. Many of the framers of the Constitution of the United States were lawyers; U.S. presidents, as well as governors, are often lawyers. Therefore, there must be something about us that causes public service to be an inextricable part of who we are, or at least who we should be. We are trained to be objective and to be concerned about, and avoid, conflicts of interest. We understand that the use of precise language is needed in order to protect against unintended consequences. Zealously advocating, while recognizing the im-

portance of civility and working collaboratively, is a skill set that we value and constantly work to improve. We are accustomed to helping our clients understand reasonable expectations and establishing parameters of acceptable behavior. Lawyers understand the transformative power of the law. The oath that Arkansas lawyers take includes commitment to values that are consistent with being a good legislator: respect to the judiciary, fairness, integrity, civility, concern for the impoverished and advancing the cause of justice. Service involves some sacrifice; however, lawyers voluntarily commit to incorporate service into the core of who we are, or at least who we want to be. One example of this is found in Rule 6.1 of the Arkansas Rules of Professional Conduct where lawyers voluntarily commit to and encourage pro bono services. Participating in the political process as a Legislator is a wonderful way for a lawyer to not

Eddie H. Walker, Jr., is the president of the Arkansas Bar Association. He is a partner with Walker, Shock & Harp, PLLC in Fort Smith.

only be a good lawyer, but to be a good citizen as well. Such service provides the opportunity to evaluate the importance of inclusiveness and recognition of the dignity and worth of each individual. If we are unable, or unwilling, to seek a legislative office, each of us certainly can encourage and financially support lawyers who are serving, or seeking to serve, in the legislature. Regular encouragement and support can provide powerful motivation to those who simply need to be energized, or re-energized. Lawyers are trained to solve problems we did not create and to anticipate things that nonlawyers would likely overlook. We understand that looking forward is usually more productive than looking back. Being a member of the Arkansas Bar Association provides access to the Association’s considerable connectivity resources. More efficient use of technology should free up some of our time. Stay a member! Recruit a member!

Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

New Professional Liability Program The ArkBar has been busy Working For You and is pleased to introduce you to a new legal professional liability program. Through ArkBar Insurance Services, exclusively powered by Stephens Insurance, LLC, ArkBar members can apply for the Attorney Protective program, which offers legal professional liability programs tailored for ArkBar members. New attorneys can choose to apply for the ArkBar Members Program or the AttPro Solo Starter Program. You can see highlights of each program below.

Arkansas Bar Program

AttPro Solo Starter

Arkansas Bar Association members credit of up to 5%

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Risk management credit of 10% if the lawyers in the firm meet state CLE requirements and 50% or more of the firm’s members attend our four-hour program every two years Consent to settle provision (no hammer clause) Financial Strength Underwritten by National Liability & Fire Insurance Company, a Berkshire Hathaway insurance company A.M. Best rating of A++ (the highest rating available through A.M. Best) Risk Management A newsletter focused on the issues that lawyers are facing today Online tools—including AttPro’s exclusive Best Practices Database Risk management hotline to discuss risks before claims arise

Arkansas Bar Association members may be eligible for the AttPro Solo Starter program, for up to three years, if they meet the following criteria: • Licensed to practice law for three years or less • The insured entity is a newly formed solo practice (three months or less) • No known claims, incidents of malpractice, or disciplinary actions • Practice maintains and utilizes docketing, calendaring and conflicts of interest systems • No more than two office support staff • Complete 10 hours annually of practice management/ ethics education provided or approved by AttPro in addition to meeting state CLE requirements • Maintain Arkansas Bar Association membership • Use client letters to document the establishment and conclusion of attorney-client relationships

To learn more, and schedule a review of your current professional liability insurance, please contact either of Stephens’ two ArkBar dedicated Insurance Services Member professionals: • Bill Cobb, Senior Vice President, (501) 377-8305, bill.cobb@stephens.com • Richard Henry, Senior Vice President, (501) 377-8448, richard.henry@stephens.com To receive the Arkansas Bar Association membership credit, 100% of the attorneys in the insured law firm must be members. National Liability & Fire Insurance Company A.M. Best rating as of 5/27/15. Product availability is based upon business and regulatory approval and differs between companies. All products administered by Attorney Protective and underwritten by National Liability & Fire Insurance Company or its affiliates. Visit attorneyprotective.com/affiliates for more information. ©2016 Attorney Protective. All Rights Reserved.

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YLS REPORT

It’s the Civil Thing to Do By Matthew L. Fryar

“Why do we, who are well-educated professionals, fall into the same patterns of incivility as I see from my children?” My daughters were born 19 months apart. They are best friends—they play together so well, they have each other’s backs when one of them is getting in trouble, they are mischievous together. And despite all of this, at least once a day, they get into a knock-down, drag-out fight over something silly: which cartoon to watch, who gets the pink bowl, what to name their imaginary pet unicorn. You name it, they can fight over it. I try to explain to them that what they’re fighting about is silly. I tell them that they need to show each other how much they love one another. I try to redirect them to something else. And I usually end up yelling at them to just cut it out. These fights typically blow over as quickly as they developed, but I can’t help but think that each shrieked word and every mean name called leaves a small scar on their innocent little hearts. I don’t know how to get them to stop fighting. As a lawyer, I often find myself in my daughters’ shoes when dealing with opposing

attorneys. We can be cooperative in discovery, cordial in correspondence, and collegial in hearings. And yet inevitably in a case there comes a moment when one or both of us finds ourselves on the brink of incivility. I hope to never stoop to the level of calling another attorney a “dumbface” like my four-year old recently did to my six-year old, but exchanges can get heated. I’ve been hung up on by opposing attorneys. I’ve been “told on” by opposing attorneys. I’ve been cussed at by opposing attorneys. And I know beyond a shadow of a doubt that I’m not the only lawyer in the state to invoke this sort of bad behavior from other attorneys. Why do we, who are well-educated professionals, fall into the same patterns of incivility as I see from my children? Maybe we’re feeling insecure about ourselves or our cases? Maybe some people are just bullies who never learned how to get along with others? I don’t know. The late Chief Justice Hannah was a strong advocate of civility among lawyers, and I

encourage each of us to honor his memory by bringing about a new era of civility to our state’s bar. There are several easy ways to ensure civility, even in the most adversarial of cases. • Make contact with opposing counsel at the beginning of the case, tell him or her that you intend to cooperate as much as possible and to always remain civil, and ask how you can help to start your relationship off on the right foot. • Remain ethical throughout the case. • Don’t include zingers in your pleadings which serve no purpose other than to point out a mistake by the other lawyer. • Return opposing counsel’s phone calls and emails. In general, build a relationship which is based upon mutual respect and professionalism. And even if the other side insists on being rude, condescending, or just down right nasty, don’t let yourself stoop to that level—rise above and be the better lawyer. One way to instill civility within your practice is to devel-

Matthew L. Fryar is the Chair of the Young Lawyers Section. He is a partner with Cypert, Crouch, Clark & Harwell, PLLC in Springdale.

op relationships with other lawyers outside of the deposition or trial setting. And the best way to do that is through involvement with the Arkansas Bar Association. When you’ve volunteered side-by-side with someone at a pro bono event, served on a committee together, or chatted over drinks at the Annual Meeting, it’s a lot harder to engage in some of the uncivil behaviors which I’ve seen over the years. Take advantage of the many opportunities that the Arkansas Bar Association offers to interact with your peers, to work together toward the betterment of our profession and our state, and to build relationships which will last the length of your career. For 2016 and beyond, let’s all just play nice together—it’s the civil thing to do! 

Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

Report from January 2016 House of Delegates Meeting By Karen K. Hutchins The Association’s House of Delegates met January 29, 2016, at the Marriott Hotel in Little Rock. President Eddie H. Walker, Jr., called the meeting to order. The House heard from Richard Henry and Bill Cobb of Stephens Insurance and Sally Fields of Attorney Protective (AttPro) on the new professional liability insurance benefit. AttPro only serves lawyers and is therefore uniquely qualified to assist with the insurance needs of our members. Executive Director Hutchins informed the House that young lawyer members are participating in AttPro’s Solo Starter program. The House voted that those members who take advantage of the AttPro’s Solo Starter program will also be granted free enrollment in Arkansasfindalawyer. com as long as they participate in that insurance program. The Association is committed to the success of our young lawyers and hopes the opportunity to participate in Arkansasfindalawyer will assist them in the establishment and growth of their practices as well as protect the public. Another great new member benefit is the addition of the ArkBar Job board (arkbar.com/jobs) that is free to our members. This benefit rolled out in December and already has several listings to connect our members with prospective employees and/or employers. The next topic considered by the House was presented by Professional Ethics Committee Chair Brad Hendricks. Mr. Hendricks reported that the committee studied proposed changes to the Arkansas Rules of Professional Conduct that include more explicit guidance for attorneys who provide limited-scope legal services and when it is and is not appropriate to communicate directly with a client who is represented by a limited- scope attorney. The House voted to support the committee’s recommendation that Association President Walker petition the Arkansas Supreme Court to adopt the proposed amendments to Rules 2.1, 4.2 and 4.3 of the Arkansas Rules of Professional Conduct. ArkBar PAC Committee Chair Bob Estes made a presentation on the activities of the ArkBar PAC, including a request that delegates join the PAC. The Association’s website is now capable of processing multiple PAC contributions by each member. This will help our members’ more easily participate in the PAC. Association Lobbyist Jack McNulty reported on plans for upcoming legislative sessions and provided information on the PAC recipients for the upcoming primary races. CLE Committee Chair Brian Clary encouraged delegates to attend the upcoming Spring CLE seminars. He polled the delegates with real-time electronic questions concerning how and where they receive their continuing legal education. The House was able to instantly view the poll results which indicated a preference for mailed versus electronic notices for CLE seminars. President-Elect Denise Hoggard also employed the polling software in her report. Focusing on strategic planning, President-Elect Hoggard posed questions to the House regarding the Association’s 10

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mission, the role of the House in fulfilling that mission, and which goals of the current strategic plan were most important to individual House members. The information gathered through the poll clearly indicated that the delegates view the Association’s highest priority is to promote a fair, impartial and independent system of justice. These results will be used in future strategic planning efforts. Secretary Tom Curry certified the election of Tony Hilliard as President-Elect Designee of the Association and the appointment of Matt Fryar as the Association’s YLD delegate to the American Bar Association. Young Lawyers Section Chair Matt Fryar made a report on behalf of that section sharing the success of the American Bar Association Young Lawyers Division national meeting held in Little Rock this past fall. Annual Meeting Chair Aaron Squyres presented a report on plans for the 2016 Annual Meeting. This year’s featured speaker is Travis T. Tygart. Tygart led the investigation into the U.S. Postal Service pro-cycling team doping conspiracy. The Annual Meeting will be held June 15-18, 2016, at the Hot Springs Convention Center. Registration is open now. Mark your calendars now and plan to attend! President Walker reminded the House that nominations are currently being accepted for the Charles L. Carpenter Memorial Award and the Lawyer Community Legacy Award. He also reported on the need for volunteers in the Association’s Mock Trial program and the Mentor/Mentee program. Visit the Association’s website to volunteer. President Walker reported that former Association Secretary/Treasurer Bill Martin received an award for his long-time service to the National Conference of Bar Foundations. President Walker then led a discussion on the series of articles in the Arkansas Democrat-Gazette concerning contributions to elections to the Arkansas Supreme Court. Discussion ensued and included a motion that the matter be referred by the House of Delegates to the Association’s committee which addresses unfair criticism of judges. The motion failed. A second motion passed asking President Walker to appoint a task force to study how best to protect judicial independence, including a review of the effects of campaign contributions and political activities on judicial elections. The task force is expected to report to the House of Delegates with a proposal at the June 2016 meeting of the House of Delegates. President Walker plans to appoint the Task Force as soon as possible. 

KAREN K. HUTCHINS, J.D., CAE, is the Executive Director of the Arkansas Bar Association.

Arkansas Bar Association 2015-2016 Board of Governors

2015-2016 Officers President: Eddie H. Walker, Jr. Board of Governors Chair: R. Scott Zuerker, President-Elect: Denise Reid Hoggard Immediate Past President: Brian H. Ratcliff Secretary: F. Thomas Curry Treasurer: Shaneen K. Sloan Parliamentarian: Leon Jones, Jr. Young Lawyers Section Chair: Matthew L. Fryar President-Elect Designee: Anthony A. Hilliard Board of Governors: Arkie Byrd, Thomas M. Carpenter, Sterling Taylor Chaney, Suzanne G. Clark, Don R. Elliott, Jr., Frances S. Fendler, Buck C. Gibson, Amy L. Grimes, Paul W. Keith, Leslie J. Ligon, Jeffrey Ellis McKinley, Jerald Cliff McKinney II, Wade T. Naramore, Laura E. Partlow, Kristin L. Pawlik, Brant Perkins, Robert M. Sexton, Derrick W. Smith, Brian A. Vandiver, Danyelle J. Walker, Andrea Grimes Woods

This photo was taken at the Capital Hotel in Litttle Rock by Drew Cason Photography during the December 2015 Board of Governors meeting.

Front Row (l to r): Denise Reid Hoggard, Eddie H. Walker, Jr., R. Scott Zuerker, Brian H. Ratcliff, F. Thomas Curry; 2nd Row: Karen K. Hutchins, Laura E. Partlow, Amy L. Grimes, Matthew L. Fryar, Suzanne G. Clark, Derrick W. Smith: 3rd Row: Brant Perkins, Robert M. Sexton, Don Elliot, Kristen L. Pawlik, Jeffrey Ellis McKinley; 4th row: Richard L. Ramsay, Judge David F. Guthrie, Buck Gibson, J. Cliff McKinney II, Thomas M. Carpenter, Paul Keith

Liason Members: Brian M. Clary, Judge James O. Cox, Judge David F. Guthrie, Stephen A. Hester, Karen K. Hutchins, Jack A. McNulty, Richard L. Ramsay, Judge Chaney Taylor Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

A Call to Leadership in the Arkansas Bar Association The petitions, current members of both bodies and district maps are listed on the Association’s website at www.arkbar.com. The Board of Governors and House of Delegates links are located from the “For Attorneys/Governance” tab from the home page. The Young Lawyers link is located on the home page. Questions? Contact the Association at 501-375-4606.

Board of Governors Qualifications for Board of Governors The attorney must reside in the geographical area for the Governor’s position and must have served one year in the House of Delegates or must have been an Association member for seven years by the time of joining the Board of Governors in June. One Governor position is available in the districts listed. All are threeyear terms.

Secretary & Treasurer

01-BG

Clay, Craighead, Greene, Mississippi

08-BG

Washington

10-BG

Sebastian

12-BG

Pulaski

17-BG

Pulaski

18-BG

Pulaski

American Bar Association Delegate

House of Delegates Qualifications for House of Delegates

The attorney must be an Association member residing within the delegate district as defined by

Article XVI Section 2 of the Association’s Constitution. All are three-year terms. A-01

Benton 3 Delegates

A-02

Washington 4 Delegates

A-03

Crawford, Franklin, Johnson, Sebastian 1 Delegate

A-07

Baxter, Fulton, Izard, Marion, Searcy, Stone 1 Delegate

Pulaski 10 Delegates

C-03

Craighead 1 Delegate

C-05

Cleburne, Crittenden, Cross, St. Francis, White, Woodruff 1 Delegate

C-06 C-04

C-08

Arkansas, Grant, Jefferson, Lee, Lincoln, Phillips 1 Delegate

C-09

Ashley, Bradley, Calhoun, Chicot, Cleveland, Columbia, Dallas, Desha, Drew, Ouachita, Union 1 Delegate

C-10

Miller 1 Delegate

C-12

Garland 1 Delegate

C-13

Hot Springs, Saline 1 Delegate

One of the two ABA Delegate positions is open for election for a two-year term. The Delegate from this Association to the House of Delegates of the American Bar Association shall be nominated by petition signed by at least 75 Association members with at least 25 voting members from each of the three state bar districts. The nominating petitions must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than March 31, 2016.

Young Lawyers Section Nominating Petitions are due March 31, 2016 for: Chair-Elect elected from

Faulkner, Van Buren 1 Delegate

District C (one-year term)

Mississippi, Poinsett 1 Delegate

from any District (one-year term)

Election Process for Governors and Delegates For both governors & delegates, a nomination petition, signed by three current members of the Association who reside in the geographical area of election, must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than March 31, 2016.

Article III, Section 7 of the Association’s Constitution provides for an annual election of the positions of a Secretary and a Treasurer. Any member interested in serving in either of these capacities should contact Karen K. Hutchins at 501-375-4606.

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Secretary/Treasurer elected Representative District A (three-year term) Representative District B (three-year term) Representative District C (three-year term)

RT PASSPO

Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

Round Pegs and Square Holes: How Same-Sex Marriage Does Not Fit Neatly Into Arkansas’ Existing Statutory Framework

By Angela Mann and Jack Wagoner

Angela Mann and Jack Wagoner are partners at Wagoner Law Firm, P.A. Their practice focuses primarily on family law, property and municipal law, probate, and personal injury. 14

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The same-sex marriage litigation—and controversy—was front and center in Arkansas and across the country for over a year, ultimately culminating in victory for marriage equality in Obergefell v. Hodges.1 In Obergefell, the Supreme Court held that state laws prohibiting marriages between members of the same sex and declining legal recognition to such marriages entered into in other states violated the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Supporters of marriage equality waved their rainbow flags in celebration. Marriage equality wins. It’s over. Right? Wrong. After only a few minor setbacks in a few counties, same-sex couples can now marry in Arkansas and the state of Arkansas now recognizes same-sex marriages legally entered into in other states. But that is not the end of the story. The Obergefell Court did only one thing—required that states allow and recognize same-sex marriages. The Supreme Court’s decision in Obergefell leaves many questions unanswered. Marriage isn’t just a piece of paper. Marriage is more than a marriage license. In United States v. Windsor, the Supreme Court noted “the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State.”2 Although the Court in Obergefell mentioned the numerous rights that attach to marriage, the Court’s decision does not automatically entitle samesex couples to all of these rights. The current status of many of these rights is unclear.

What About the Children? Are Both Spouses Parents? Procreation and children were overarching themes throughout the same-sex marriage litigation in 2014 and 2015. Currently in Arkansas, a same-sex couple can adopt a child and both partners, even if unmarried, are legal parents of the child. The same is not necessarily true when the child is born to a same-sex couple, regardless of marriage.

the stigmatizing effects of treating same-sex couples and their children differently—this statute is likely unconstitutional if not applied in a gender-neutral manner. Arkansas has no appellate precedent addressing parental rights for a child born through assisted reproduction within a same-sex marriage. Courts in other jurisdictions have considered similar statutes and have reached differing results. The Oklahoma Court of Civil

“Many married—but not recognized as married—same-sex couples resided in Arkansas before 2015. As of what date does Arkansas consider these marriages effective? The date of marriage? July 25, 2015, when the Supreme Court decided Obergefell? Or some other date? This issue creates a lot of uncertainty.”

Arkansas law likely does not provide parental rights at all for non-biological spouses in same-sex marriages. This is because Ark. Code Ann. § 9-10-201, the assisted-reproduction statute, speaks in gender-specific terms only. The statute provides that: (a) Any child born to a married woman by means of artificial insemination shall be deemed the legitimate natural child of the woman and the woman’s husband if the husband consents in writing to the artificial insemination. (b) A child born by means of artificial insemination to a woman who is married at the time of the birth of the child shall be presumed to be the child of the woman giving birth and the woman’s husband. Subsection (b) goes on to provide that: [I]n the case of a surrogate mother, . . . the child shall be that of: (1) The biological father and the woman intended to be the mother if the biological father is married; (2) The biological father only if unmarried; or (3) The woman intended to be the mother in cases of a surrogate mother when an anonymous donor’s sperm was utilized for artificial insemination. Contrary to the norm, genetics alone does not determine parentage of a child born via assisted reproduction. Instead, Ark. Code. Ann. § 9-10-201 bases parentage on intended parentage. But, on its face, this only applies if the parents are in an opposite-sex marriage. So here’s the struggle. The husband of a woman who undergoes artificial insemination is deemed the parent of the child. But the wife of a woman who undergoes artificial insemination is not deemed the parent of the child. The wife of a man who is the biological father of a child born by a surrogate is deemed the parent of the child. But the husband of a man who is the biological father of a child born via surrogate is not deemed the parent of the child. Following the reasoning in Obergefell—especially the discussion of

Appeals concluded that a biological mother’s same-sex partner, “a female who is not the mother of the child,” lacked standing to seek custody, visitation, or child support because she was not a “mother” or “a man whose paternity of the child is to be adjudicated” as those terms are defined in Oklahoma’s Uniform Parentage Act.3 The term “man means a male” and thus does not include a mother’s female partner. Other courts have reached the opposite conclusion. New Hampshire and New Mexico courts have both found that statutes similar to Ark. Code Ann. § 9-10-201 applied equally to a man or a woman.4 Arkansas also has no precedent regarding the parentage of a child born via surrogate to a same-sex couple. Like with artificial insemination, Ark. Code Ann. § 9-10-201 provides that the parties’ intent is the primary factor in determining legal parentage for children born through surrogacy, but the statute is written in gender-specific terms. The leading national case on this issue is Johnson v. Calvert, where the California Supreme Court interpreted a similar statute and held that the natural and legal parents of a child born via surrogate are the persons who intend to bring about the conception and birth of the child and who intend to raise the child as their own.5 The Superior Court of Connecticut reached the same result in Cunningham v. Tardiff, and concluded that, like an opposite-sex couple who have a child via surrogate, same-sex couples “do not have to terminate the parental rights of the surrogate and her husband, nor do they have to adopt their own children.”6 How will Arkansas decide this issue? One can only guess. Rules of statutory construction dictate that courts must give the terms in a statute their plain and ordinary meaning. “Husband” does not mean “wife” and “wife” does not mean “husband.” To read the statute as gender-neutral arguably puts a court in the position of rewriting the statute. Birth Certificates—Mother and Father, not Mother and Mother or Father and Father Arkansas birth certificates present another interesting problem. As stated in Ark. Code Ann. § 20-18-401(e), “the mother is deemed to Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

be the woman who gives birth, unless otherwise provided by state law or determined by a court.” The “father” is determined as follows: (1) If the mother was married at the time of either conception or birth or between conception and birth the name of the husband shall be entered on the certificate as the father of the child, unless: (A) Paternity has been determined otherwise by a court of competent jurisdiction; or (B) The mother executes an affidavit attesting that the husband is not the father and that the putative father is the father, and the putative father executes an affidavit attesting that he is the father and the husband executes an affidavit attesting that he is not the father. . . . The state of Arkansas simply refuses to list two mothers or two fathers on a birth certificate absent a court order because Arkansas statutory law does not provide a means by which to do so. This makes sense because

the birth certificate statute determines parentage based on the biological parents and both partners in a same-sex marriage cannot possibly be biological parents of the child. The problem of course arises when the biological mother asks that the birth certificate name her wife as a parent. The presumption of paternity is easily rebutted by the mere fact that a child cannot have two biological parents of the same sex. Pulaski County Circuit Judge Tim Fox recently found Ark. Code Ann. § 20-18401(e) unconstitutional, concluding that the statute “categorically prohibits every same-sex married couple, regardless of gender, from enjoying the same spousal benefits which are available to every opposite-sex married couple.”7 The Arkansas Supreme Court has stayed Judge Fox’s decision until it has an opportunity to weigh in on the issue.8 As it stands now, adoption is the only unquestionably legal way that the wife of a biological mother can become a parent of her wife’s child. Ark. Code Ann. § 9-9-204 provides for what is commonly referred to as a “step-parent adoption”—a married individual may adopt if his or her spouse is the

biological parent of the child and consents to the adoption. This statute is not genderspecific, so it presumably opens the door to a same-sex non-biological spouse adopting the biological child of his or her spouse. Outside of adoption, any other means of establishing parental rights for the nonbiological parent is dicey. For example, a birth certificate alone does not insulate against future legal challenges—such as by a biological father. Absent some relinquishment of rights and formal adoption, years down the road, such a “parent” may find himself or herself not considered a parent at all, or at best, with limited legal rights such as those acquired based upon the in loco parentis doctrine.9 Same-sex couples, of course, want to be treated in all respects the same as heterosexual couples. Why must they adopt their intended children when heterosexual couples do not have to do so? Why must they get a court order to obtain a birth certificate listing both of them, the intended parents, as the parents of their children? Why are extra steps necessary? Something extra must occur to establish the non-biological parent as the legal parent for birth certificate purposes.

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Discounts include an additional 5% when shipping labels are created online with FedEx Ship Manager® at fedex.com or with another approved electronic shipping solution. FedEx shipping discounts are off standard list rates and cannot be combined with other offers or discounts. Discounts are exclusive of any FedEx surcharges, premiums, minimums, accessorial charges, or special handling fees. Eligible services and discounts subject to change. For eligible FedEx services and rates, contact your association. See the FedEx Service Guide for terms and conditions of service offerings and money-back guarantee programs. Black & white copy discounts apply to 8-1/2" x 11", 8-1/2" x 14", and 11" x 17" prints and copies on 20-lb. white bond paper. Color copy discounts apply to 8-1/2" x 11", 8-1/2" x 14", and 11" x 17" prints and copies on 28-lb. laser paper. Discount does not apply to outsourced products or services, office supplies, shipping services, inkjet cartridges, videoconferencing services, equipment rental, conference-room rental, high-speed wireless access, Sony® PictureStation™ purchases, gift certificates, custom calendars, holiday promotion greeting cards, or postage. This discount cannot be used in combination with volume pricing, custom-bid orders, sale items, coupons, or other discount offers. Discounts and availability are subject to change. Not valid for services provided at FedEx Office locations in hotels, convention centers, and other non-retail locations. Products, services, and hours vary by location. © 2013 FedEx. All rights reserved.

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But this should not create any additional burden on same-sex couples. When done properly and through the right channels, assisted reproduction typically includes a contractual relinquishment of parental rights by the donor, or third-party biological parent. Same-sex couples should be treated exactly the same as opposite-sex couples in this instance. An Easy Fix to Gender Distinctions The Arkansas legislature should enact legislation directing that all Arkansas statutes

before July 25, 2015? As the Court noted in Obergefell, “[b]eing married in one State but having that valid marriage denied in another is ‘one of the most perplexing and distressing complication[s]’ in the law of domestic relations.”11 States outside of Arkansas began allowing same-sex marriage long before 2015. Many married—but not recognized as married—same-sex couples resided in Arkansas before 2015. As of what date does Arkansas consider these marriages effective? The date of marriage? July 25, 2015, when the Supreme Court decided

Obergefell, this presented an unusual problem for same-sex Arkansas couples married in other states who wanted a divorce. To get divorced, at least one spouse must establish residency in another state long enough to meet that state’s residency requirements.13 So Arkansas same-sex couples who separated prior to Obergefell most likely did nothing. Are they still married? Probably. To further complicate matters, what if one or both of the ex-partners—married in another state but living in Arkansas where that marriage was not recognized—went on

“The state of Arkansas simply refuses to list two mothers or two fathers on a birth certificate absent a court order because Arkansas statutory law does not provide a means by which to do so.” addressing marriage must be interpreted in a gender-neutral manner. Thus, the terms “husband” and “wife” could be interpreted as interchangeable terms. The legislature should also enact changes to the assisted reproduction and birth certificate statutes to allow some means by which to establish parentage and entitlement to recognition of parentage on the child’s birth certificate. Judge Fox attempted to do so with his courtordered definition of the phrase “person has been legitimated” in connection with the birth certificate statute.10 In the context of assisted reproduction, the biological mother’s wife would be entitled to the same presumption of parentage as a husband under the current statute. The husband of a biological father would be entitled to the same. Same-sex couples go through the same process to have children through assisted reproduction as opposite-sex couples who have children through the same means. The law in Arkansas should provide and protect their parental rights in the same manner as other, non-biological parents who choose to have children through assisted reproduction and who intend to parent the resulting children. Is Marriage Equality Retroactive? Marriage is a status. The state of Arkansas has recognized same-sex marriages since July 25, 2015, when the Supreme Court issued its Obergefell decision. But what about those marriages that were legal elsewhere

Obergefell? Or some other date? This issue creates a lot of uncertainty. What if one spouse died prior to July 25, 2015? Is the surviving spouse entitled to recognition as a surviving spouse? According to the Social Security Act, probably not. The Social Security Act provides that an applicant for survivor benefits is a “widow” or “widower” if “the State in which he was domiciled at the time of death” would find that the survivor and the decedent “were validly married . . . at the time [the decedent] died.”12 A plain reading of this statute indicates that, because Arkansas did not recognize same-sex marriages until July 25, 2015, the surviving spouse is not entitled to benefits under the Social Security Act if his or her partner died before Obergefell. The Social Security Administration will apply its black letter law and regulations and deny benefits to surviving spouses whose partners died prior to the time when Arkansas recognized their marriage. Such a decision should be appealed because the case law, including Obergefell, supports at least a case-by-case determination in these instances. Obergefell itself applied retroactively as to its own plaintiffs, one of whom sought recognition on his husband’s death certificate as the surviving spouse. What if a couple who legally married outside of Arkansas separated prior to July 25, 2015? Arkansas’ laws not only prohibited same-sex marriage, but also prohibited the termination of a same-sex marriage. Before

to marry an opposite-sex partner in Arkansas without obtaining a divorce from the earlier same-sex marriage?14 Is the second marriage bigamous? Maybe. Maybe not. At the time of the second marriage, the first marriage— the same-sex marriage—was not recognized in Arkansas and could not be terminated. As far as the state of Arkansas was concerned, the later marriage was the only marriage. Well, what about now? What is the status of the first marriage? The second marriage? What should be done? My advice is to obtain a divorce in the first marriage and legally remarry the second spouse. Maybe this is unnecessary, but it will ensure that the present marriage is recognized. Marriage Equality Does Not Equal Actual Equality The LGBT community won a huge victory in Obergefell by securing marriage equality. But many issues remain unresolved. Attempting to plug the new definition of marriage into our existing statutory framework is, in places, like attempting to squeeze a round peg into a square hole. The issues addressed in this article are just the ones that we have encountered in the few months since Obergefell. Many other issues like these are sure to come up. Marriage is not the only issue that separates the LGBT community. The LGBT community faces discrimination in other areas as well. Arkansas currently has no explicit protections for sexual orientation

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and gender identity. Although it seems like the logical next step, the Supreme Court in Windsor and Obergefell stopped short of labelling sexual orientation and gender identity as a protected class. It will likely take many years of litigation and court rulings, and hopefully help from the Arkansas legislature, to harmonize existing Arkansas law with the new definition of marriage. Endnotes: 1. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 2. United States v. Windsor, 133 S. Ct. 2675 (2013). 3. Dubose v. North, 332 P.3d 311 (Okla. Ct. Civ. App. 2014). 4. See, e.g., In re Madelyn B., 98 A.3d 494 (N.H. 2014); Chatterjee v. King, 280 P.3d 283 (N.M. 2012). 5. Johnson v. Calvert, 851 P.2d 776 (Cal. 1993). 6. Cunningham v. Tardiff, 46 Conn. L. Rptr. 478 (Conn. Super. Ct. 2008). 7. Pavan v. Smith, Case No. 60CV-15-3153. 8. Smith v. Pavan, Case No. CV-15-988. 9. See Bethany v. Jones, 2011 Ark. 67, 378 S.W.3d 731 (Arkansas Supreme Court granted visitation to a biological mother’s ex-partner based on the in loco parentis relationship between the child and the expartner). 10. See Pavan, Memorandum Opinion at 11. Obergefell, 135 S. Ct. at 2607. 12. 42 U.S.C. § 416(h)(1)(A)(i). 13. If the parties’ children or property were in Arkansas, this created an even more complicated situation. The spouse who moved to another state in order to establish residency and obtain a divorce there would have had to choose a state with personal jurisdiction over both spouses—that is, a state where both spouses had “minimum contacts.” 14. Our firm actually had such a case. But to complicate matters, after obtaining a divorce in the first marriage—from the female spouse—the client decided she did not want to be married to the second spouse—her husband. We then had to advise her that, because it is possible that Arkansas would consider the second marriage valid notwithstanding the first marriage, she would need to obtain another divorce—this time from her husband. Perhaps the better procedure would be to seek a declaratory judgment determining her marital status as to each spouse. 

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Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

Judicial Campaign Finance:

Can the Independence, Integrity, and Impartiality of the Judiciary Survive Unlimited Stealth PAC Expenditures in Judicial Elections? By Tim Cullen

On December 3, 2010, the late Chief Justice Jim Hannah and Justice Robert L. Brown presented their concerns to the Arkansas Bar Association Board of Governors about judicial campaigns in neighboring states. â&#x20AC;&#x153;Millions of dollars were being spent in races for state supreme court positions, and the television advertisements being run were pernicious, poisonous, and outright falsehoods. Though this malady had not yet affected Arkansas, we believed that it was only a matter of time before the torrent of money and toxic ads inundated our state.â&#x20AC;?1 Fast-forward to 2014. The justicesâ&#x20AC;&#x2122; concerns were prescient. Even The New York Times editorial page took note: Judicial elections have always been a bad idea. The special-interest money unleashed by recent Supreme Court rulings has made them even worse, greatly increasing the influence of political-action committees and supposedly independent groups financed by corporations, unions and other interests with issues before the courts. ***** Similarly, the election on Tuesday for an open Supreme Court seat in Arkansas has been polluted by the involvement of the Law Enforcement Alliance of America, a sketchy out-of-state group that has had ties to the National Rifle Association. 2

Tim Cullen has handled over 150 appeals in state and federal courts and was a candidate for position 2 on the Arkansas Supreme Court in 2014. 20

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The Times editorial made reference to Citizens United v. Federal Election Commission.3 In that case, a nonprofit corporation sued the Federal Election Commission to establish the right to produce and publicize a film about a presidential candidate within 30 days of a primary. The FEC initially prevailed. In 78 pages of plurality opinion, the Supreme Court partially reversed, holding that the federal statute4 barring independent corporate expenditures for electioneering communications violated the First Amendment. The continuing debate over Citizens United illustrates the tension between the First Amendment protection for political speech (expressed by unlimited money from corporations and associations) versus efforts to preserve the independence, integrity, and impartiality that is unique and essential to the judiciary.

In another very recent case touching on money in politics, Williams-Yulee v. Florida Bar,5 the Supreme Court went the other way, affirming the discipline of a judicial candidate for violation of a state’s rules on campaign fundraising for a judicial election. The majority in Williams-Yulee held that a rule prohibiting judicial candidates from personally soliciting campaign funds met the strict scrutiny standard based on the state’s compelling interest in protecting the integrity of the judiciary. Chief Justice Roberts’ majority opinion summarized: Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor – and without having personally asked anyone for money.6 Another bulwark of judicial impartiality is the notion that a biased judge must recuse. One year prior to Citizens United, the Supreme Court took up that issue in Caperton v. AT Massey Coal Company.7 The story in Caperton is so compelling, it could be a work of fiction.8 The decision syllabus summarized the facts: After a West Virginia jury found respondents, a coal company and its affiliates (hereinafter Massey), liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations and awarded petitioners (hereinafter Caperton) $50 million in damages, West Virginia held its 2004 judicial elections. Knowing the State Supreme Court of Appeals would consider the appeal, Don Blankenship, Massey’s chairman and principal officer, supported Brent Benjamin rather than the incumbent justice seeking reelection. His $3 million in contributions exceeded the total amount spent by all other Benjamin supporters and by Benjamin’s own committee. Benjamin won by fewer than 50,000 votes. Before Massey filed its appeal, Caperton moved to disqualify now-Justice Benjamin under the Due Process Clause and the State’s Code of Judicial Conduct, based on the con-

flict caused by Blankenship’s campaign involvement. Justice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant. The court then reversed the $50 million verdict. During the rehearing process, Justice Benjamin refused twice more to recuse himself, and the court once again reversed the jury verdict. Four months later, Justice Benjamin filed a concurring opinion, defending the court’s opinion and his recusal decision.9

ever, in the case of 501(c)(4) groups, funds used for advocating for a particular candidate are subject to gift tax and income tax. Donations are not tax deductible as charitable contributions, but may be deductible as business expenses. One of the key features of a 501(c)(4) is that it does not have to disclose its donors. The Law Enforcement Alliance of America (LEAA) is such a group, and has refused to disclose their sources of funding. 501(c) groups spent over $600 million in the 2014 election.12

“The continuing debate over Citizens United illustrates the tension between the First Amendment protection for political speech (expressed by unlimited money from corporations and associations) versus efforts to preserve the independence, integrity, and impartiality that is unique and essential to the judiciary.“

The Supreme Court reversed, holding that due process required Justice Benjamin’s recusal under these facts. So any attempt to address the concerns articulated by Chief Justice Hannah and Justice Brown about the torrent of money and toxic ads in Arkansas judicial races must be squared with Citizens United, Caperton, and Williams-Yulee.10 The Internal Revenue Code Many PACs (political action committees) are referred to as “527” groups. This comes from 28 U.S.C. § 527 which defines the characteristics of such organizations and their tax status. 527 groups are tax-exempt organizations established to influence elections. There are no limits on contributions to 527s. 527s must make periodic public reports of their contributions and expenditures. A 527 group called “And for the Sake of Kids” was the conduit for $2.5 million in contributions to benefit Justice Benjamin in Caperton. 501(c) groups are also tax exempt nonprofit organizations.11 The groups pay no tax on donations made to the group; how-

Caperton, Campaign Finance, and Due Process Right to Recusal But consider what the outcome might have been if Don Blankenship (CEO of Massey Coal) used a different strategy to support Justice Benjamin. What if he wrote his $3 million check to a perfectly legal entity known as a 501(c)(4,) like the LEAA instead of the 527 group “And for the Sake of Kids”? Under current law, both 501(c) (4) groups and 527 groups may accept unlimited contributions from individuals, corporations, or other associations. A 527 group (like “And for the Sake of Kids”) must file periodic reports of contributions and expenditures. But a 501(c)(4) like the LEAA may participate in political campaigns, but is not required to publicly disclose its donors. Under current law, such groups may participate in the political process by producing and funding polling, direct mail, television and radio ads on particular “issues” and may even directly support candidates so long as they do not coordinate their effort with the candidate. So Blankenship could have accomplished the same goal—spending $3 million to elect his preferred candidate, Brent Benjamin.

Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

But he could have achieved this goal in secrecy. The 501(c)(4) could have wrapped Benjamin in the American flag and run endless television commercials about his lifelong dedication to West Virginia while simultaneously smearing his opponent with ads depicting shadowy criminals and ominous voice-overs claiming Benjamin’s opponent was soft on child predators. And then when Benjamin was elected and the Caperton

combined total both candidates spent. Comparing apples to apples, the LEAA spent 10 times what Cullen spent on television buys ($317,280 compared to $31,750) and more than 30 times what Wynne spent on television buys ($317,280 compared to $11,470).13 The LEAA ran two ads—one was a positive ad featuring Judge Wynne and extolling his record of keeping criminals in jail. The

Wynne won the election, carrying 40 of 75 counties, and winning the total popular vote by a 52/48 margin. Wynne received 159,688 votes to Cullen’s 147,381. Like Caperton, the third party (LEAA) spent far more than the candidates themselves. In Caperton, Don Blankenship’s involvement was transparent, and his interest was apparent. But in the Arkansas example, the donor or donors behind the

“Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.“ case was on review by the West Virginia Supreme Court, there would be no basis to seek his recusal. The Capertons of the world might have their suspicions, but any proof of Blankenship’s involvement in the election would be scrupulously and legally hidden from the public view. The 2014 Arkansas Supreme Court Race The Caperton story bears some similarities to what happened in Arkansas in 2014, albeit on a different scale, and with an ending that is yet to be written. Here are the facts: Judge Robin Wynne, a four-year incumbent on the Arkansas Court of Appeals, announced his candidacy for position 2 on the Arkansas Supreme Court. Position 2 would be an open seat upon the announced retirement of Justice Donald Corbin. Wynne created a campaign committee, filed appropriate reports, and commenced campaigning. Tim Cullen (the author) announced that he would also run for position 2. Based on final campaign reports, Wynne spent a total of $99,295.00 on his campaign. Cullen spent $164,932.13 in total campaign funds. Together, the Wynne and Cullen campaigns spent a total of $264,227.13 on the statewide race. In contrast, the LEAA spent at least $317,280 on the race—more than the

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other was a negative ad accusing Cullen of being soft on sexual predators. The source of the funds that paid for the LEAA ads is unknown because the LEAA refuses to disclose the identity of its donors.14 The negative LEAA ad was widely criticized. Factcheck.org, a watchdog project for political advertising sponsored by the Annenberg Public Policy Center at the University of Pennsylvania, reviewed the ad and the Cullen response, concluding: [T]he LEAA attack ad is beyond the pale. It comes at the 11th hour and distorts the record in a blatant appeal to fear and emotion. It is funded by special interests, but we don’t know the real intent of those behind the ad, because the group does not have to disclose its donors. This kind of attack has become all too common in races for the legislative and executive branches of government, but it is incompatible with the code of judicial conduct and has no place in judicial races.15 In fairness, the same Factcheck.org article criticized Cullen for linking the LEAA ad to Wynne, pointing out that the Wynne campaign denied any knowledge or involvement with the purchase or subject matter of the LEAA commercials.

LEAA expenditure are unknown, and their interest in the outcome of the race is unknowable. Reform Justice Brown chaired a task force to address reforms in judicial elections in Arkansas. Among the suggested reforms were a publicly-financed voter guide, a pledge by candidates to abide by the letter and spirit of the Judicial Code of Conduct, establishing a rapid response team to respond immediately to false advertisements, moving the runoff for judicial elections to July, public financing of judicial campaigns, limits on campaign contributions, and recusal of judges receiving significant contributions from litigants or their lawyers. To date, none of the reforms suggested by the task force have been implemented.16 Further, these suggestions do not directly address the unique problems with stealth PAC money in judicial campaigns. Absent some reform addressed to stealth money in judicial races, involvement by 501(c)(4) groups in judicial elections will further undermine the independence, integrity, and impartiality of the judiciary in at least three ways. First, there is the undeniable impact of money on a campaign. Money is what fuels the message by paying for all of a campaign’s tools—professional consultants,

Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

polling, direct mail, and radio and television production and air time. In Arkansas judicial races, money is scarce. By comparison, in the recent race for United States Senate in Arkansas, the candidates and various interest groups spent over $52 million.17 So a relatively modest expenditure in a judicial race is a much more economical way of advancing a 501(c)(4)’s agenda. Second, the involvement of 501(c)(4) groups in judicial campaigns defeats transparency. All the money a judicial campaign raises and spends must be publicly disclosed. Any donor over $50 must be publicly disclosed. Stealth PACs avoid any financial disclosure. They have no obligation to ever disclose either their donors or their expenditures.18 This creates a legal way to avoid transparency, and denies litigants before the court the data to exercise their due process right to seek recusal of a judge on an objective standard of bias, as announced in Caperton. Finally, the issue-based attack ads funded by 501(c)(4) groups in judicial races undermine the impartiality of courts. A judge’s only duty is to uphold the law and the Constitution. That duty is paramount, even in the face of intense political pressure on the hot-button issues of the day. Allowing outside partisan interest groups to hijack judicial campaigns and make them about any particular public-policy issue suggests a fundamental misunderstanding of the proper role of the judiciary in our Constitutional republic. Reforms could be as simple as requiring any group who seeks to meddle in judicial elections to disclose the identity of their donors in the same manner that candidates must disclose their donors. Without this disclosure, the recusal standards announced in Caperton become meaningless. Judicial candidates should renounce the involvement of any proxy groups in judicial campaigns. A judge should insist that he alone speaks for his campaign, and should be very wary of any proxy group that seeks to use his campaign to further its political agenda. This is addressed in Rule 4.1(B) which requires a candidate to take reasonable measures to ensure third parties do not undertake prohibited activities. Comment 8 to Rule 4.1 currently states: “when an independent third party has made unwarranted attacks on a candidate’s opponent, the candidate may disavow the attacks, and request 24

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the third party to cease and desist.” The “may” in this comment should be upgraded to “shall.” Finally, the bar, the press, and the public should demand to know who is behind the curtain directing stealth expenditures in judicial campaigns, and ask what they seek to gain from their involvement in judicial races. Why Does It Matter The founding fathers knew that the judiciary was the most fragile of the three branches of government. It does not have the appropriation power that the legislature enjoys, or the police powers of the executive branch. Alexander Hamilton said it more eloquently, writing under the pseudonym of Publius in Federalist #78: Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.19 Echoing Alexander Hamilton, Senator Lindsey Graham more recently said: The judiciary is the most fragile branch of government. They have no army. All they have is the force of the Constitution, the respect of the other branches of government, and hopefully the support of the American people. The one thing we don’t want to lose in this country is an indepen-

dent judiciary. We are putting the men and women willing to serve in these jobs through hell.20 The foundation of modern judicial ethics seems to recognize the fragile state of the judiciary, and the importance of the public’s confidence in the courts’ legitimacy. As Canon 1 familiarly states: “A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” To preserve the very legitimacy of the judiciary, judicial candidates must stand firm and vocal in the essential premise that law is not politics by another name. Candidates must forcefully and universally reject the idea that voters should elect them based on their political point of view. Candidates must do much more to educate the public that a judge’s role is to decide cases based on the facts, the law, and the Constitution. A judge is not a policy-maker, and must not be beholden to any interest group, political party, political action committee (whether it be a 527 or 501(c)(4)), or to any individual. And if a friendship or business relationship or an intense political conviction fairly clouds a judge’s human judgment, then he must disclose that fact and honor a litigant’s due process right to a fair and impartial tribunal by recusing. There is no doubt this is a tough sell, especially to non-lawyers. The public has been inundated with political discourse that is much simpler. The political-industrial complex21 polls the most basic issues and condenses them into the most compelling and emotional sound-bites to win votes for their candidate. Truth or accuracy rarely gets in the way of a campaign talking point. But judicial races must be different. If Arkansas continues to elect judges, judicial candidates and lawyers must do much more to help the electorate decode the messages. Tough on crime sounds good, until you realize that point of view, taken to its extreme, argues for trampling many of our most important liberties. Surely “fair” is more important in a judge than “tough.” Anyone who stands for election to a judicial post must be prepared to defend why judicial elections are different from all other elections, and must not simply ride whatever political tide is rising. Alternatively, the evidence that the system

of electing Justices is broken beyond repair is compelling. Consider the influence of anonymous money that dwarfs the actual campaign budgets, the fact that most direct contributions to judicial campaigns come from two prominent bundlers—both who have frequent business before the court, the Maggio debacle, the stunning recusal letters from Chief Justice Hannah and Justice Danielson in the same-sex marriage case, the disturbing number of 4-3 decisions with vitriolic dissents, and the fact that most Supreme Court races have been uncontested. It is tempting to give up on elections entirely. The alternative is a process where potential Justices are nominated based on merit by a broad-based panel of diverse constituencies, and then appointed by the governor. This is no panacea. Even judges (and justices) in the federal system are accused of political motivations. But perhaps such a reform would counter-balance the destructive political forces that seem intent on corrupting Arkansas’ judicial system. Appointing justices is not a perfect solution. But absent the political will by lawyers to stand up for the unique role of an elected judiciary, I believe our system is so wounded right now that we should try something rather than doing nothing to “uphold and promote the independence, integrity, and impartiality of the judiciary, and . . . avoid impropriety and the appearance of impropriety.”22 Endnotes: 1. Justice Robert L. Brown, “Task Force on Judicial Elections,” The Arkansas Lawyer, Winter 2012. 2. “Judges and Justice for Sale,” The New York Times, editorial board, May 19, 2014, at A16. 3. 558 U.S. 310 (2010). 4. 2 U.S.C. § 441b. 5. 135 S. Ct. 1656 (2015). 6. Id. at 1662. 7. 556 U.S. 868 (2009). 8. See John Grisham, The Appeal (Doubleday, 2008). 9. Caperton, 556 U.S. at 868. 10. Another article has juxtaposed Caperton with another First Amendment case, Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005), and suggested the cases create a constitutional crisis where judges have a First Amendment right to say almost anything, but litigants have a due process right to not face a judge who

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Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

a reasonable person may deem biased. See Andrey Spektor & Michael Zuckerman, Judicial Recusal and Expanding Notions of Due Process, 13 U. Pa. J. Const. L. 977 (2011). Citizens United, contrasted with Caperton, presents a similar quandary— holding that “associations” like 501(c)(4) groups have a First Amendment right to unlimited (and anonymous) political speech, but litigants must have a right to know who a judge’s campaign benefactors are to be able to exercise their due process recusal rights announced in Caperton. Williams-Yulee only adds to the confusion by holding that states have a compelling interest to justify regulation of political speech in judicial elections. 11. 28 U.S.C. § 501(c). 12. Doyle, Kenneth P.; BloombergPolitics, “Outside Money Leads to First $100M Senate Contests,” Nov. 4, 2014 at http:// www.bloomberg.com/politics/articles/2014-11-04/outside-money-in-senateraces-leads-to-first-100-million-contests. 13. “TV Ad Spending in Arkansas Supreme Court Race Doubles from 2012,” Brennan Center for Justice, May 21, 2014. http:// www.brennancenter.org/press-release/tvad-spending-arkansas-supreme-court-race-

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doubles-2012. 14. In a news release posted at prnewswire. com, the LEAA states that it “protects the privacy of its members and supporters” [http://www.prnewswire.com/news-releases/ law-enforcement-alliance-of-america-courtruled-child-sex-offenses-were-not-as-timcullen-claimed-victimless-258672791.html]. Additionally, each page of the LEAA website (leaa.org) includes a bold-type footer stating: “We pledge to protect your right to free association and privacy related to contributions.” 15. Eugene Kiely, “Mudslinging in Arkansas Judicial Race,” May 15, 2014 [http://www. factcheck.org/2014/05/mudslinging-inarkansas-judicial-race/]. 16. Just prior to the publication of this article, www.arkansasjudges.org, a website established by the Arkansas Judicial Campaign and Education Committee, Inc., a non-profit 501(c)(3) corporation, was announced. This organization plans to assemble a voter guide and monitor media communications in judicial elections with a “rapid response team.” 17. Jason Tolbert, “Spending in Arkansas Senate Race Tops $52 Million,” Talk

Business and Politics, Oct. 28, 2014. 18. Some data is available because the Federal Election Commission requires television stations to maintain a “political file” for public inspection. The political file contains invoices for all political advertising during an election cycle. The political files from five Arkansas television stations are the source for the data on the LEAA involvement in the Wynne-Cullen race in 2014. In reality, the actual LEAA expenditure is likely higher than just the total ad buys placed with the television stations because those numbers only reflect the fees paid to the television stations for airtime and they do not account for the production costs of the commercials. 19. Independent Journal, June 14, 1788. 20. Senator Lindsey Graham remarks at the confirmation hearings of Justice Elena Kagan as reported in The Christian Science Monitor, Aug. 3, 2010. 21. Gwen Moritz, “The Political-Industrial Complex,” Arkansas Business, Nov. 24, 2014. 22. Canon 1, Arkansas Code of Judicial Conduct. 

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Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

The Arkansas Supreme Court Goes to War: A Sampling of Legal Issues Confronted by the Court During World War II By J. Cliff McKinney

The year 2016 marks the 75th anniversary of the entry of the United States into World War II. World War II was the largest war in history and affected every aspect of life and society. Arkansas was not immune with the state suffering 3,814 casualties,1 some of those lawyers. The Arkansas Supreme Court also found itself indirectly part of the war as it faced unique legal challenges and issues caused by the conflict, which included deciding more than a hundred cases that referenced or involved the war in some respect. It would be impossible in an article of this length to discuss every impact the war had on the Court’s jurisprudence. What follows is a sampling of a few of these cases from different areas of the law. The hope is that this sampling gives the reader both an appreciation for the myriad of ways that the war affected life and a deeper appreciation of the sacrifices made by the “Greatest Generation.” Freedom of Speech The case of Johnson v. State raises issues too numerous for the scope of this article but is perhaps one of the most interesting cases of the war era.2 On February 10, 1919, Arkansas adopted a statute making it a misdemeanor to “exhibit contempt” for the American flag. This statute was tested in June 1941, six months before the Battle of Pearl Harbor, when Mr. Joe Johnson entered the Welfare Commissary at Marshall, Arkansas, to receive food assistance for his family. Two rumors had apparently circulated in the community regarding Mr. Johnson: first that he was taking more assistance than he was entitled to because he had fewer children than he claimed and second that he would not salute the American flag. A worker at the Welfare Commissary confronted him with these rumors. Mr. Johnson said that he was telling the truth about the number of dependents he claimed, but apparently became outraged when asked to salute a flag hanging in the room to disprove that rumor. According to witness testimony, he said that he would die before he saluted the flag and loudly proclaimed to all in the room, “‘You can’t get anything here unless you salute the flag. It don’t have eyes and can’t see, and has no ears and can’t hear, and no mouth and can’t talk. It doesn’t mean anything to me. It is only a rag.’”3 Mr. Johnson was arrested for his actions and charged with a misdemeanor for exhibiting contempt of the flag. At his trial, Mr. Johnson denied that he spoke disrespectfully of the flag, but acknowledged that he would not salute the flag because of religious convictions. The trial court seemed to acknowledge that Mr. Johnson might be within his constitutional rights to refuse to salute the flag and narrowed the issue for the jury to whether he was guilty of publicly showing contempt for the flag through his words. Mr. Johnson was convicted and sentenced to a fine of $50.00 and imprisonment in the county jail for 24 hours. In upholding the conviction, the majority of the Arkansas Supreme Court held:

J. Cliff McKinney is a Managing Member of Quattlebaum, Grooms & Tull PLLC 28

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It seems to us that it would be difficult to imagine a state of facts under which contempt for the flag could be more convincingly demonstrated in public than in the circumstances here. The strange and unnatural conduct of this man at the very time he was receiving, from the hands of a most generous government, supplies to aid him in sustaining a large family, may not be explained away on the grounds of ignorance or religious beliefs. It is one thing to be given the privilege of refusing to salute the flag, but quite another when one by word or act publicly exhibits contempt for the flag. Here appellant after refusing to salute the flag, as was his privilege, proceeded to address a large number of people and tell them than the flag meant nothing to him and was only a “rag.” Webster’s dictionary defines “rag” as “A waste piece of cloth torn or cut off, a shred or tatter, something resembling or suggesting a rag or rags and considered of little worth or service;—used contemptuously, jocularly, or ironically as of a flag, newspaper, etc.” We think appellant’s statement clearly evinces contempt for the flag within the terms of the statute in question.4 However, Chief Justice Griffin wrote a strongly-worded dissent that was much longer than the majority’s opinion and covered many issues. The Chief Justice concluded that Mr. Johnson did not act out of contempt for America or a lack of patriotism but out of firmly- held religious beliefs. The Chief Justice noted that Mr. Johnson had attempted to join the military during World War I but was prevented by his mother since he was 17 at the time. The Chief Justice viewed Mr. Johnson’s prosecution as being inflamed by the growing international tensions that culminated in World War II’s outbreak during the legal proceedings. Chief Justice Griffin wrote: In spite of my own lack of sympathy with appellant’s attitude, irrespective of an entrenched belief that a country would not endure peopled by men entertaining the ideas appellant expounded as interpreted by the state, the fact remains that we are engaged not only in a war of men, machines, and materials, but in a contest wherein liberty may be lost if we succumb to the ideologies of these who enforce obedience through fear, and who would write loyalty with a bayonet.5 Chief Justice Griffin clearly disagreed with Mr. Johnson’s actions but believed that he had a constitutional right to behave as he did. He concluded by saying: Little more need be said regarding appellant, his conduct, and his conviction. If ignorance were a legal crime the judgment would be just. But witch-hunting is no longer sanctioned. The suspicions and hatreds of Salem have ceased. Neighbor no longer inveighs against neighbor through fear of the evil eye.6 Licensure The case of Lynch v. Hammock is especially interesting because of its connection to the internment of Japanese Americans during World War II.7 Arkansas had two internment camps: one at Rohwer and one at Jerome. This case arose during the construction of the socalled “Rohwer Relocation Colony.” The internment camp was con-

Photograph of the plaque donated by the Arkansas Bar Association in honor of Arkansas lawyers who served in World War II. The plaque is located outside of the old Supreme Court Chambers in the Arkansas State Capitol. Photo by Michael Pirnique. structed under the authority of the War Department of the United States, which required that a practicing doctor be present during the camp’s construction to provide medical care to the approximately 2000 employees. The War Department contracted with Dr. M.B. Lynch of Tennessee to live at the camp and provide the services. Dr. Lynch was licensed to practice medicine in Tennessee but not in Arkansas. The Desha County Medical Society filed a petition to enjoin Dr. Lynch from practicing medicine in Arkansas without a license. The question was what, if any, authority the state of Arkansas had to regulate the practice of medicine at the camp, which was in Arkansas but being constructed and managed under federal jurisdiction. The Arkansas Supreme Court cited Article 1, Section 8, Clause 17 of the United States Constitution, which says that the federal government may exercise authority over forts, magazines, arsenals and “other needful Buildings” constructed within states with the consent of the state legislature. The Court stated, “We think there can be no doubt that the buildings constructed by the Government on its property to be used for the relocation of the Japanese come within the term ‘other public buildings of any kind whatever’ as used in Section 5644 supra [the 1903 state statute that consented to any existing or future projects by the federal government], and under the above provision of the United States Constitution as ‘other needful Buildings,’ in this time of war stress.”8 Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

The Court concluded that Dr. Lynch’s practice was confined to the area owned by the United States, and his practice therefore fell outside of the jurisdiction of the state to regulate. Criminal Law The case of Bishop v. State dealt with the question of how World War II impacted the right to a speedy trial.9 Mr. Tuck Bishop of Fayetteville was charged with the murder of four people for flirting with his commonlaw wife. The only two living eyewitnesses were Mr. Ed Kendrick of Lowell and Mr. Bert Plummer of Springdale. The prosecutor brought four separate murder cases against Mr. Bishop, and both eyewitnesses testified in the first trial where Mr. Bishop was convicted of murder. Before the second trial, Mr. Kendrick enlisted in the U.S. Army Air Corps and Mr. Plummer enlisted in the U.S. Marine Corps. The War Department granted both witnesses 10 days leave to attend the second trial where Mr. Bishop was again convicted. After the second trial, Mr. Kendrick was shipped to the war in Italy where he was later listed as missing in action, a status which had not changed as of the date of the case. Mr. Plummer was shipped to New Zealand and later to Tarawa before becoming part of the occupation force in Japan after the war ended, where he was still stationed as of the date of the case. Mr. Bishop petitioned for the two remaining murder charges to be dismissed on the basis of not receiving a speedy trial. The prosecution countered that the trial could not move forward due to the exigencies of the war, at least not until Mr. Plummer returned from Japan. The Arkansas Supreme Court determined that the exigencies of the war were such that the prosecution’s delay was excusable but ordered that Mr. Bishop’s two remaining charges be dismissed if the trial was not commenced by April 1946 when the surviving witness was anticipated to return. Taxes During World War II, the federal government had a program where a portion of a tax refund that would otherwise be due could be deferred as a bond to be paid after the war, which was referred to as the “Post-War Refund.”10 The Henry H. Cross Company 30

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received $32,769.09 as a Post-War Refund in 1942. The Henry H. Cross Company sought to deduct the amount of the PostWar Refund from its 1942 Arkansas state income tax on the basis that it did not actually receive the money, just a promise from the federal government to pay the refund after the war. The Court determined that the Post-War Refund was not deductible, holding, “While it is true that such bonds shall bear no interest, and are not negotiable or transferable while the war continues, they are nevertheless valuable assets . . . .”11 The Court held that the Post-War Refund remained subject to Arkansas state income taxation despite the federal policy to promote Post-War Refunds to provide needed funds for the war. Employment Law In H.B. Deal & Co. v. Leonard, the plaintiffs brought an action seeking the payment of time and a half pay for work in excess of 40 hours per week.12 The plaintiffs were hired to assist in the construction of the Ozark Ordinance Works near El Dorado, Arkansas, which was used in the production of chemicals needed for munitions. After a lengthy discussion that concluded with a dissent by two justices, the court concluded that the workers were creating a product solely for government use that fell outside the definition of “commerce” within the purview of the Fair Labor Standards Act. The plaintiffs were therefore not entitled to the overtime pay. Real Estate In Ozark Black Marble Co. v. Stephenson, W. M. Stephenson and his wife gave a “stone deed” to the owners of Ozark Black Marble Company.13 The 1935 deed gave Ozark Black Marble Company the right to quarry black marble from Mr. and Mrs. Stephenson’s land in exchange for a 10% royalty. Ozark Black Marble Company began quarrying activities in 1939 after spending several years “testing, sawing, polishing samples, surveying and promotional work”14 and succeeded in making some sales that same year. Sales, however, were slow and, in 1944, the Stephensons sued to set aside the stone deed claiming that the company misrepresented their financial ability to quarry and market the marble. While the trial court sided with the Stephensons, the Arkansas Supreme Court

reversed in favor of the company on several grounds. The Court took judicial notice that from the start of World War II through the date of the suit that the building material business “became progressively more restricted.” The Court found that “the market for black marble was gone for the time being, or until the end of the war.” Given the circumstances created by the war, the Court concluded that it would “be inequitable to cancel the deeds at this time for failure to develop the property further.”15 These are but a few of the many cases and issues that confronted the Arkansas Supreme Court during World War II, a war that touched every facet of life as no war had done before. Those left on the home front dealt with significant impacts generated by the crisis while the military fought on distant shores. The legal profession was not immune to the reach of the war as the war created new issues and unique legal problems. While it can be wished that the court had handled some issues differently, the court nevertheless dealt with the exigencies of the moment and attempted to do its part to address the challenges faced by all members of the “Greatest Generation.” Endnotes: 1. http://www.secondworldwarhistory.com/ world-war-2-statistics.asp (accessed 8-25-15). 2. Johnson v. State, 204 Ark. 476, 163 S.W.2d 153 (1942). 3. Id. at 478, 163 S.W.2d at 153-54. 4. Id. at 479-80, 163 S.W.2d at 154. 5. Id. at 485-86, 163 S.W.2d at 157. 6. Id. at 489, 163 S.W.2d at 159. 7. Lynch v. Hammock, 204 Ark. 911, 165 S.W.2d 369 (1942). 8. Id. at 916, 165 S.W.2d at 371. 9. All references in this section are to Bishop v. State, 209 Ark. 1013, 193 S.W.2d 489 (1946). Some information about the murder is available at: http://www. co.washington.ar.us/index.aspx?page=140 (accessed 8-18-15). 10. Henry H. Cross Co. v. Cook, 208 Ark. 958, 188 S.W.2d 497 (1945). 11. Id. at 960, 188 S.W.2d at 498. 12. All references in this section are to H.B. Deal & Co. v. Leonard, 210 Ark. 512, 196 S.W.2d 991 (1946). 13. Ozark Black Marble Co. v. Stephenson, 208 Ark. 338, 186 S.W.2d 145 (1945). 14. Id. at 339, 186 S.W.2d at 145. 15. Id. at 341, 186 S.W.2d at 146. 

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Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

Beyond Direct vs. Derivative: What Muccio v. Hunt Tells Us About Arkansas LLCs By Allison R. Gladden

“More than just a question of semantics, or convenience, the habitual comparison of LLCs to other entities has given way to conflation.”

Despite being a statutorily-authorized legal entity for more than two decades, the Arkansas LLC remains tethered to its perceived origins in the laws of corporations and partnerships. The Arkansas Supreme Court’s 2014 opinion in Muccio v. Hunt1 is the most recent in a line of decisions that are emblematic of the failure of Arkansas LLCs to develop functional independence. In addition to being unnecessary, analogies to corporate and partnership law that may once have been instructive are now inapt.

Allison R. Gladden is of counsel at Keech Law Firm, PA in Little Rock.

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Arkansas LLC Law Arkansas limited liability companies (“LLCs”) are authorized under the Arkansas Small Business Entity Tax Pass Through Act of 1993 (“LLC Act”).2 The LLC Act describes the organizational and operational forms of an Arkansas LLC, using a vocabulary that differentiates the LLC from its business entity counterparts. While an exhaustive analysis is not practical here, the following is a summary of the provisions of the LLC Act that represent the core concepts. LLCs are “formed”3 by filing “Articles of Incorporation” with the Secretary of State. An LLC may have one or more owners, called “members.”4 Management may be vested in the LLC’s members, as a whole, or in one more “managers,” who may be LLC members, but are not required to be.5 Any “person” may be an LLC member, which is defined in the statute as including individuals and various legal entities, including other LLCs.6 An LLC member is not personally liable for the debts, obligations, and liabilities of the LLC,7 and is not considered a proper party to proceedings by or against the LLC, except for the purpose of

enforcement actions by or against the member.8 The rights, obligations, and duties of an LLC and its members are governed by a contract called an “operating agreement,” which is mandatory under the statutes, but need not be filed of record.9 An operating agreement is not required to address any particular matter. In the absence of applicable provisions in an operating agreement, the Act provides gap-filler default provisions. An LLC member has a “membership

LLCs without reference to corporations and partnerships, even if inadvertently. More than just a question of semantics, or convenience, the habitual comparison of LLCs to other entities has given way to conflation. The result is a confusing body of case law, with limited precedential value. Muccio v. Hunt “Following the bankruptcy of BioBased Technologies, LLC, members of this bank-

do so. Ark. R. Civ. P. 23.1 (2013). In order for a shareholder to bring an individual cause of action against a third party, however, the shareholder must be injured for a wrong directly or independently of the corporation. [Bomar v. Moser, 369 Ark. 123, 128, 251 S.W.3d 234, 239 (2007).] Individual stockholders do not have standing to sue in their individual capacities for injuries allegedly

“LLCs seem poised to take over as the building blocks of major enterprises, but have not lost their appeal for closely-held businesses. A clear analytical framework for LLC issues isn’t going to build itself from the top down. As practitioners, the foundation is our responsibility.”

interest” consisting of membership/voting rights, and the right to receive distributions.10 An LLC membership interest is personal property of the member,11 and is freely transferrable, except as limited in an operating agreement.12 By statutory default, unless admitted by consent of the remaining members, a transferee of an LLC membership interest takes as an assignee, and has only the right to receive the transferor’s distributions.13 This is the same status afforded to a judgment creditor of a member, who obtains a charging order against the member’s distributions.14 Property held in the name of an LLC is not the property of its members, and is not generally subject to distribution in kind to or on behalf of the LLC members.15 Of the foregoing, the element that is most essential to understanding an LLC is the operating agreement. An LLC’s operating agreement is a contract, entered into by and binding upon its members, and the managers, if any. Given the number of sections of the LLC act that contain the phrase, “except as provided in an operating agreement,” one would expect the operating agreement to factor heavily, if not exclusively in some instances, in the analysis of issues pertaining to LLC governance and operations. Yet, despite what can be determined about an LLC from its operating agreement and the LLC Act, practitioners and fact-finders alike seem unable to find a way to talk about

rupt limited liability corporation16 . . . brought a cause of action against other members, the lawyers of members, and the managers of the corporation.”17 So begins the Arkansas Supreme Court’s opinion in Muccio v. Hunt, published in January of 2014, and widely noted for establishing the precedent that members of an Arkansas LLC could assert direct claims against their fellow members, and the LLC’s managers, for fraud, breach of duty to disclose, and conversion. For a practitioner with a particular interest in limited liability companies, the misnomers18 in the first sentence of the Muccio opinion were jarring. The remainder of the opinion was no less troubling for its unreserved and unexplained blending of the vocabularies and laws of corporations, partnerships, and limited liability companies. The appellants in Muccio sought review of, among other things, the circuit court’s determination that certain claims asserted in the complaint were derivative claims on behalf of the LLC, and that they lacked standing, as members of the subject LLC, to pursue them in their own names.19 In setting up its review and analysis of the standing issue, the Court recited the following standard: A shareholder may bring a derivative action on behalf of a corporation to enforce a right of the corporation when the corporation has failed to

suffered primarily by the corporation and its shareholders. Id., 251 S.W.3d at 239. Direct suits brought by a shareholder are appropriate only when the shareholder asserts an injury that is distinct and separate from the harm caused to the corporation. Id., 251 S.W.3d at 239.20 The Court presumes, without discussion, that the law of corporate shareholder derivative actions is a proper basis on which to analyze the appellants’ arguments. This is particularly curious, in light of the existence of a brief subchapter of the Arkansas LLC Act entitled “Suits by and Against the Limited Liability Company,”21 which provides, subject to modification in an operating agreement, that regardless of whether an LLC is member-managed, or managermanaged, suits may be brought, only in the LLC’s name, by one or more members who have been so authorized by the affirmative vote of more than one-half, in number, of the disinterested members.22 The manager of a manager-managed LLC is authorized to bring suit under the same terms.23 The Court applies the substituted corporate standard to its review of the question of appellants’ standing to assert directly each of four causes of action: fraud, breach of duty to disclose, conversion of membership interest, and breach of contract. The fraud analysis relies on Golden Tee, Inc. v. Venture

Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

Golf Sch., Inc., a case that addressed claims of fraud between limited partners in an Arkansas limited partnership, an entity type in which limited liability is a function of limited participation and control.24 The breach of duty analysis cites multiple sections of the Arkansas LLC Act,25 but fails to explain the basis for treating the subject parties as “managers,” which is a term of art for LLCs. Despite considering a question of duty, no reference is made to an LLC operating agreement, except in passing, by reference to the pleadings in the lower court.26 The conversion analysis describes the appellants’ claim first as one for conversion of the appellants’ “membership interests in [the LLC]” and then immediately thereafter as an “assert[ion] that the outstanding stock of a corporation is the individual property of its shareholders, not of the corporation, and the corporation has no interest in it or dealings among shareholders with respect to their stock.”27 The breach of contract question was addressed as a matter of procedure under the umbrella of subject-matter jurisdiction, but still managed to contain a reference to “shareholders.”28 It is unclear how we are to apply Muccio going forward, because so little of the analysis is based directly on LLC law, or informed by the operating agreement of the subject LLC. Unfortunately, the Muccio opinion is not unique in this respect. The ease with which the Court applies the law of corporations is consistent with the prevailing view of LLCs as a “hybrid form of business entity.”29 This comparison is outdated and misleading.30 Like vs. Treated Like Our earliest understanding of LLCs was derivative of the laws of corporations and partnerships by necessity, because there was no operative model. The first LLC statute was enacted in Wyoming in 1977, and authorized a new type of business entity that offered limited liability for its owners, like a corporation, and favorable pass-through taxation, like a partnership.31 Prior to that time, the LLC was a concept without a name—the marriage of favorable treatments that were not, at the time, available in combination.32 Proponents pitched the LLC model, somewhat disingenuously, as a collection of all the best elements of corporations and partnerships. At the time 36

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the Arkansas LLC Act was passed, the IRS’ determination of whether to allow pass-through taxation was based not on whether an entity exhibited sufficient partnership characteristics, but rather whether it avoided exhibiting too many corporate characteristics.33 The only clear connection between the developing LLC and the longstanding corporation was limited liability. Limited liability, unlike partnership taxation, was not earned on a case-by-case basis, but was granted by statute, and as such was considered a “corporate characteristic” for IRS classification purposes.34 In this context, the phrase “limited liability, like a corporation,” rings hollow. We return, then, to the mercenary underpinnings of the LLC concept, the development of which was driven almost entirely by what qualities the IRS would permit in an entity that was entitled to pass-through taxation. For LLCs, this originally included trying to predict how a flexible, contractual entity would function in the IRS’ rigid partnership classification regulations.35 For a moment, unincorporated entities seeking pass-through taxation were aiming at the same target. Twenty years after the Wyoming Act, and almost concurrently with the enactment of LLC legislation in the last of our 50 states, the IRS changed the face of business entity development nationwide, with its uncharacteristically flexible “Check-the-Box” classification option, which made pass-through taxation an election, rather than an aspiration.36 In addition to sparking landslide popularity of LLCs, the passage of Check-the-Box also effectively destroyed whatever remained of the basis for comparison between LLCs and partnerships. Why does all of this matter? According to the most recent publication of the Statistics of Income Division of the IRS, among entities taxed as partnerships, LLCs have represented the growing majority since overtaking general partnerships in 2002.37 Arkansas has been no exception to this trend.38 LLCs seem poised to take over as the building blocks of major enterprises, but have not lost their appeal for closelyheld businesses. A clear analytical framework for LLC issues isn’t going to build itself from the top down. As practitioners, the foundation is our responsibility.

Endnotes: 1. Muccio v. Hunt, 2014 Ark. 35. 2. Ark. Code Ann. § 4-32-101 et seq. 3. Ark. Code Ann. § 4-32-201. 4. Id. 5. Ark. Code Ann. § 4-32-401(a)-(b). 6. Ark. Code Ann. § 4-32-102(j), (l). 7. Ark. Code Ann. § 4-32-105(e). This is subject to certain practical exceptions, as one would expect. 8. Ark. Code Ann. § 4-32-106(a). 9. Ark. Code Ann. § 4-32-102(k). 10. See Ark. Code Ann. §§ 4-32-706(a), 4-32-704(a)(2), (3). 11. Ark. Code Ann. § 4-32-703. 12. Ark. Code Ann. § 4-32-704(a)(1). 13. Ark. Code Ann. §§ 4-32-706(a), 4-32-704(a)(2), (3). 14. Ark. Code Ann. § 4-32-705. 15. Ark. Code Ann. § 4-32-701. 16. The Court does not address, and this article does not explore, the effect that the reorganization of BioBased, LLC, under chapter 11 of the United States Bankruptcy Code (11 U.S.C. § 101 et seq.) would have had on the appellants’ claims. 17. Muccio, 2014 Ark. at 1. 18. There is no such thing, in Arkansas, as a “limited liability corporation,” and it is incorrect to refer to an LLC as a “corporation,” as they are distinct under the laws of this state. 19. Muccio, 2014 Ark. at 8. 20. Id. 21. Ark. Code Ann. §§ 4-32-1101–1103. 22. Ark. Code Ann. § 4-32-1102(a). 23. Ark. Code Ann. § 4-32-1102(b). 24. Muccio, 2014 Ark. at 10 (citing Golden Tee, Inc. v. Venture Golf Sch., Inc., 333 Ark. 253, 266, 969 S.W.2d 625, 632 (1998) (omitting the internal reference to 4 Alan Bromberg and Larry E. Ribstein on Partnership § 15.04(f))); Ark. Code Ann. § 4-43-303(a). 25. Muccio, 2014 Ark. at 11-12. 26. Id. at 11. 27. Id., at 12-13. No reference on this issue to Golden Tee, which refers to derivative claims by a limited partner for, in essence, devaluing his limited partnership interest. 333 Ark. at 260. 28. Muccio, 2014 Ark. at 16. 29. See, Thomas E. Rutledge, Let’s Stop Describing LLCs as “Hybrids,” Jour. of Passthrough Entities 33, 35 (September–October 2014).

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30. Id. 31. See Wyoming Limited Liability Company Act, ch. 158, 1977 Wyo. Sess. Laws 577 (enacted Mar. 4, 1977). 32. See Susan P. Hamill. The Story of LLCs: Combining the Best Features of a Flawed Business Tax Structure, in Business Tax Stories 295, 296 (Steven A. Bank & Kirk J. Stark eds., 2005). 33. Treas. Reg. § 301.7701-2(a)(1) (1983). 34. Treas. Reg. § 301.7701-2(d) (1983). 35. Hammil, supra note 32 at 306-09. 36. Treas. Reg. §§ 301.7701-1-4 (1996). 37. See Ron DeCarlo & Nina Shumofsky, Partnership Returns, 2013, Statistics of Income Bulletin 35 (Fall 2015) available at https://www.irs.gov/PUP/taxstats/soi-acopa-id1512.pdf. 38. Rodney D. Chrisman, LLCs Are the New King of the Hill: An Empirical Study of the Number of New LLCs, Corporations, and LPs Formed in the United States Between 2004-2007 and How LLCs Were Taxed for Tax Years 2002-2006, 15 Fordham J. Corp. & Fin. L. 459 (2009). 

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The Arkansas Supreme Court Clarifies the Standard for Terminating Consensual Guardianships of Minors By Andy Taylor

Suppose a mother consented to a guardianship of her child because she had a drug problem and was seeking treatment.1 Now suppose the mother, after putting her life back together, walks into your office and wants to terminate the guardianship. What standard applies to her petition to terminate the guardianship? This article attempts to answer that question. The Arkansas statute governing guardianships provides that “[a] guardianship may be terminated by court order . . . [if] . . . the guardianship is no longer necessary or for the best interest of the ward.”2 While this statute might appear to be straightforward, there have been four major Arkansas Supreme Court cases in the last six years or so dealing with this issue, each of them with a concurrence, a dissent, or both. Some of the complexity arises because of a 2000 case from the Supreme Court of the United States dealing with grandparent visitation. This article will begin with a short synopsis of that case, and then move to the evolution of this area of law in light of that opinion. Andy Taylor is a partner at Taylor & Taylor Law Firm, P.A., where a significant portion of his practice is devoted to Arkansas appellate practice.

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Troxel v. Granville: “There is a presumption that fit parents act in their children’s best interests.”3 In Troxel v. Granville, the United States Supreme Court examined a Washington statute that allowed courts to award visitation of a child to any person if the visitation was in the best interest of the child. The Supreme Court held that the statute was unconstitutional because it gave no deference to a par-

ent’s decision regarding visitation. The Court held that “[t]here is a presumption that fit parents act in their children’s best interests.” Although the Troxel decision would eventually become important in termination of consensual guardianship cases in Arkansas, the first major Arkansas case on point that began to move the needle in favor of parental rights did so without relying on Troxel. Graham v. Matheny: “[T]here is confusion regarding the standard to be used in termination-of-guardianship cases.”4 The starting point for the evolution of the law relating to termination of consensual guardianships must begin with Graham v. Matheny because, in that case, the Arkansas Supreme Court explained the state of the law as it stood at the time and made several clarifications. At the time Graham was decided, for example, there were cases that held that the natural parent preference was subservient to the best interests of the child.5

mother had consented to allow the child’s paternal grandparents to be guardians of the child. Approximately 18 months later, the child’s mother sought to terminate the guardianship, but the circuit court denied the mother’s petition. Although it was generally accepted at the time that fit parents were presumed to act in the best interests of their children,8 the question in S.H. I was whether a parent who consented to a guardianship waived that presumption. By the time S.H. I was decided in 2012, a number of states had addressed this issue, and a majority of those states had held that a fit parent does not waive the presumption.9 The Arkansas Supreme Court adopted this view, holding that parents who consent to a guardianship and then later seek to terminate that guardianship “are entitled to the Troxel presumption in a proceeding to terminate that guardianship.”10 The next question, then, was how this presumption was to be applied. The Arkansas Supreme Court announced a two-part test,

“Whether you agree with the decision in W.L. or not, one thing is clear: an area of the law that once created significant confusion is now subject to a very straightforward analysis.”

Because of this confusion, the Arkansas Supreme Court enumerated five clarifications, summarized below: 1. The standard in termination of guardianship cases, as set forth in the statute, is (1) whether the guardianship is no longer necessary, or (2) whether termination is in the best interests of the ward. 2. When evaluating a petition to terminate a consensual guardianship, the first question is whether the guardianship is still necessary. 3. When considering whether a guardianship is still necessary, the “paramount consideration” is the best interests of the child. 4. If the guardianship has been in place for a long period of time, the stability of the child’s environment is a “critical factor” in determining the best interests of the child. 5. The material-change-of-circumstances standard does not apply in termination of guardianship cases. This last clarification was important because, until Graham was decided, there was a question as to whether a parent seeking to terminate a consensual guardianship had to meet the heightened standard of a material change of circumstances. In a footnote in his concurring opinion in Graham, Chief Justice Hannah noted that neither party had raised the issue of whether Arkansas’ guardianship termination statute ran afoul of the holding in Troxel that fit parents are presumed to act in the best interests of their children.6 Three years later, the Arkansas Supreme Court would have the opportunity to address that issue directly. In the Matter of the Guardianship of S.H. (“S.H. I”): “[P]arents who have not been deemed unfit do not forfeit their fundamental liberty interest in raising their children by consenting to a guardianship.”7 The first Arkansas case to address termination of consensual guardianships in light of Troxel was S.H. I. In that case, the child’s

holding that whenever a natural parent who had not been determined to be unfit sought to terminate a consensual guardianship: 1. The parent must put forth evidence that the guardianship is no longer necessary; and 2. Once the parent meets this burden, a presumption arises that termination is in the child’s best interest, and the guardians bear the burden of overcoming that presumption. S.H. I was a 4-3 decision, with three justices concurring in part and dissenting in part. Justice Goodson, writing for the concurring/dissenting justices, made two basic points. First, she argued that in order to protect a parent’s fundamental right to raise his or her children, the guardians (rather than the parent) should bear the burden on both prongs of the test. Second, she argued that the majority opinion had left the burden of proof on the first prong of the test unclear. In the second appeal of this case, the Arkansas Supreme Court would clarify the burden on both prongs of the test. In the Matter of the Guardianship of S.H. (“S.H. II”): “Fit, natural parents who consent to a guardianship need additional protection in seeking to terminate the guardianship.”11 After S.H. I was remanded, the circuit court applied the twoprong test, but still denied the petition to terminate the guardianship. Therefore, the case was appealed again. The court’s decision, which announced the burdens to be applied to both prongs of the test, was a 3-2-2 decision, with Justice Wood writing the opinion of the court, Justice Baker writing a concurring opinion, and Justice Danielson writing a dissenting opinion. For the first prong, the Arkansas Supreme Court clarified that the burden is a burden going forward. The court also specified exactly what a fit parent must do in order to meet this burden: revoke consent and inform the court that the conditions necessitating the Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

guardianship no longer exist. The basis for this holding was that a fit parent is presumed to act in a child’s best interest. Therefore, if a fit parent revokes consent, that decision is presumed to be in a child’s best interest. For the second prong, the court held that once the burden shifts to the guardian to prove that it is in the best interest of the child for the guardianship to continue, the clear-and-convincing-evidence standard applies. The court held that this standard applied because otherwise, the guardian and the parent would be on an equal playing field. The concurring opinion, written by Justice Baker, referred back to the court’s opinion in Graham v. Matheny that the termination statute is a disjunctive statute. Therefore, the concurring justices argued, a parent seeking to terminate a consensual guardianship need only prove that the guardianship is no longer necessary or that termination would be in the best interest of the child. The opinion of the court, written by Justice Wood, acknowledged this apparent contradiction between the termination statute (which was written in the disjunctive) and the two-pronged test from S.H. I (which was written in the conjunctive). The court held, however, that because this was the second appeal of the same case, the court was bound by the law of the case doctrine to apply the test from S.H. I. The court’s opinion hinted, however, that a change was coming, holding that the law of the case doctrine was preventing it from “following the cardinal rule of statutory interpretation, which is ‘to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language.’”12 Indeed, that change would come less than three months later.

The court in W.L. noted that it had previously held in Graham v. Matheny that the termination statute was a disjunctive statute, but had then held that a parent proceeding under the first prong (that the guardianship was no longer necessary) was still required to prove that termination was in the best interest of the child. As a result, the court held in W.L., the decision in Graham had “the effect of turning the test into a conjunctive one—the or becomes an and.”14 Because the court was not bound by the law of the case doctrine in W.L., the court returned to the plain language of the statute and held that the test to terminate a consensual guardianship is a disjunctive test. Because of this, the court held that a parent seeking to terminate a guardianship may proceed under either prong of the test. For a parent proceeding under the first prong, the test is very clear. Relying on its decision in S.H. II, the court held that a consensual guardianship is no longer necessary once a fit parent revokes the consent. Therefore, the court held, once a fit parent files the petition revoking consent, “[t]he fit parent does not have to prove anything else.”15 As he had in S.H. II, Justice Danielson wrote a dissent in W.L. He argued that the court’s opinion had strayed from the text of the guardianship statute because that statute provides that a guardianship “may” be terminated if the guardianship is no longer necessary or if termination is in the best interest of the ward. The majority opinion addressed this argument in a footnote, holding that “[t]his is a correct statement of the law; however, there were no other facts in front of the court that could overcome [W.L.’s father’s] fundamental right to raise his child.”16

In the Matter of the Guardianship of W.L.: “[A] fit parent’s decision regarding his or her children is conclusive.”13 In W.L., the Arkansas Supreme Court set out to fully clarify Arkansas law regarding termination of consensual guardianships. Like S.H. I and S.H. II, W.L. involved a parent (this time a father) who had consented to a guardianship in favor of the child’s grandparents and later attempted to revoke the consent. In W.L., the circuit court denied the father’s petition to terminate the guardianship.

Practical Considerations in the Aftermath of W.L. Under the court’s decision in W.L., a fit parent seeking to terminate a guardianship prevails simply by filing a petition indicating that the parent is revoking consent to the guardianship and requesting that the court terminate the guardianship. Given the ease with which a fit parent can terminate a consensual guardianship under this prong of the test, a parent seeking to terminate a consensual guardianship should almost always proceed under this prong. Typically,

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the analysis will end there, and the parent’s revocation of consent will terminate the guardianship. There are, however, a few problems that could still prevent a parent who revokes consent from regaining custody of the child. First, recall that the Troxel presumption applies only to fit parents. Therefore, a guardian seeking to keep the guardianship in place could seek to have the parent declared unfit. There is a lengthy discussion of parental unfitness in W.L., but to summarize, the guardians would have a high burden to meet on this point in order to continue the guardianship. Second, the court in W.L. acknowledged that the statute provides that a guardianship “may” be terminated if the reasons for the guardianship no longer exist, but held that there were no facts in W.L. that would overcome the fundamental right of the father in that case to raise his own child. The author of this article is aware of at least one case where a circuit court relied on this footnote to deny a petition by a fit parent to terminate a consensual guardianship. Third, given that parents often consent to guardianships in a time of upheaval in their own life, such as during a divorce, it is important to bear in mind that once the guardianship is terminated, there is often still a custody determination to be made between the two parents. This is important because one parent could succeed in having a guardianship terminated, only to have the other parent attempt to gain custody. Conclusion In the aftermath of W.L., it is safe to say that most attempts to terminate a consensual guardianship will be successful. Therefore, if the mother mentioned in the first paragraph of this article were to walk into your office today seeking to terminate a consensual guardianship, you could tell her that she would most likely prevail in having the guardianship terminated. In this and most other consensual guardianship cases, simply informing the court of the revocation of consent (by filing a petition to terminate the guardianship) will be sufficient to terminate the guardianship. Whether you agree with the decision in W.L. or not, one thing is clear: an area of the law that once created significant confusion is now subject to a very straightforward analysis.

Endnotes: 1. See Crenshaw v. Crenshaw, 2012 Ark. App. 695. 2. Ark. Code Ann. § 28-65-401(b). 3. Troxel v. Granville, 530 U.S. 57, 58 (2000). 4. Graham v. Matheny, 2009 Ark. 481, at 14, 346 S.W.3d 273, 280–81. 5. Smith v. Thomas, 373 Ark. 427, 433, 284 S.W.3d 476, 480 (2008). 6. Graham v. Matheny, 2009 Ark. 481, 16, 346 S.W.3d 273, 281 (Hannah, C.J., concurring). 7. In the Matter of the Guardianship of S.H., 2012 Ark. 245, 22, 409 S.W.3d 307, 320 (“S.H. I”). 8. By the time S.H. I was decided, the Arkansas Supreme Court had adopted Troxel’s holding that fit parents are presumed to act in their children’s best interest and had held that the Arkansas Grandparental Visitation Act was unconstitutional. Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). 9. The Arkansas Supreme Court in S.H. I cited to 15 cases that had so held. 10. S.H. I, 2012 Ark. 245, at 14, 409 S.W.3d at 316. 11. In the Matter of the Guardianship of S.H., 2015 Ark. 75, at 10, 455 S.W.3d 313, 320 (“S.H. II”). 12. S.H. II, 2015 Ark. 75, at 15, 455 S.W.3d at 322. 13. In the Matter of the Guardianship of W.L., 2015 Ark. 289, at 8, 467 S.W.3d 129, 134. 14. Id. at 6, 467 S.W.3d at 132-33. 15. Id. at 8, 467 S.W.3d at 134. 16. Id. at 15 n.6, 467 S.W.3d at 137 n.6. 

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DISCIPLINARY ACTIONS Judicial Discipline & Disability Commission Actions On November 17, 2015, the Arkansas Judicial Discipline and Disability Commission announced the filing of formal charges against Cross County District Court Judge Joseph Boeckmann in JDDC Case No. 14-310, 213, 313, 314. On January 19, 2016, Judicial Discipline and Disability Commission issued JEAC Opinion #2105-03 to Joe Serebrov. The full press releases can be found online at http://www.state.ar.us/jddc/ decisions.html.

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Final actions from October 1 December 31, 2015, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line either at http:// courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.] SUSPENSION: JOE THOMAS LYNCH, Bar No. 88132, of Hot Springs, Arkansas, by action of Committee Panel B, on December 17, 2015, was referred for initiation of disbarment proceedings in Committee Case Nos. CPC 2015-082 (personal misdemeanor criminal conduct over about a 20-year period), on three violations of Rule 8.4(b), and CPC 2015-093 (questioned deed to a residential property Lynch allegedly procured from his mother in 2002 and did not disclose or record until the day prior to her death in

2010), on violations of Rules 1.7(a), 1.7(b), 1.8(c), 3.1, 3.3(a)(1), 8.4(a), 8.4(b), and 8.4(c). An interim suspension was imposed on December 17, 2015, for the duration of the disbarment proceeding. PAUL FARRIS MILLER, Bar No. 2012108, of Hot Springs, Arkansas, admitted to practice in Arkansas in 2012 after being licensed in Colorado for many years, on July 10, 2015, had a six-month suspension, effective August 14, 2015, imposed in Colorado for violations of Rules 1.7(a)(2), 1.8(a), and 8.4(c) of the Colorado Rules of Professional Conduct for his conduct, generally conflict of interest, in a closelyheld small family-owned business. Miller reported the Colorado sanction to the Arkansas Office of Professional Conduct on August 19, 2015. Pursuant to Section 14 of the Arkansas Procedures, a Complaint for Reciprocal Discipline was filed as No. CPC 2015-102. Miller filed a timely answer and the matter was submitted to a panel of the Committee on Professional Conduct, which voted to impose the identical sixmonth suspension of Miller’s Arkansas law license, a suspension that was effective on December 17, 2015. Note: No appeal or other action challenging the Arkansas suspension has been filed as of the magazine submission date. REPRIMAND: JUSTIN B. HURST, Bar No. 2005021, of Hot Springs, Arkansas, on a complaint by Vicki DeVore, in Case No. CPC 2015057, by Consent Findings & Order filed December 11, 2015, was reprimanded and fined $500 for violations of Rules 1.3 and 8.4(d). Hurst represented Devore in an employment case against a private school and Ms. Devore’s daughter in an assault case. A lawsuit was filed in Sevier County Circuit Court in 2008 by Hurst’s father, Q. Byrum Hurst, Jr. The case was thereafter assigned to Justin Hurst. A Rule 41(b) dismissal notice was sent to counsel of record in the case. No response to the Rule 41 notice was filed by Hurst and the case was dismissed. The case was refiled in 2010 by Justin Hurst and a scheduling order was issued to counsel of record. The scheduling

order stated that failure to respond to the scheduling order may result in dismissal of the case. Hurst failed to respond to the scheduling order and the case was again dismissed. This dismissal prevented the Devores from having their matter heard. CAUTION: Q. BYRUM HURST, JR., Bar No. 74082, of Hot Springs, Arkansas, on a complaint by Vicki DeVore, in Case No. CPC 2015057, by Consent Findings & Order filed December 11, 2015, was cautioned and fined $500 for violations of Rules 1.3 and 8.4(d). Hurst represented Devore in an employment case against a private school and Ms. Devore’s daughter in an assault case. Hurst filed a lawsuit in Sevier County Circuit Court in 2008 for the DeVores. The case was thereafter assigned to his son Justin Hurst. A Rule 41(b) dismissal notice was sent to counsel of record in the case. No response to the Rule 41 notice was filed by Hurst and the case was dismissed. The case was refiled in 2010 by Justin Hurst and a

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DISCIPLINARY ACTIONS scheduling order was issued to counsel of record. The scheduling order stated that failure to respond to the scheduling order may result in dismissal of the case. Hurst failed to respond to the scheduling order and the case was again dismissed. This dismissal prevented the Devores from having their matter heard. GAYLE D. ZIMMERMAN, Bar No. 79144, of Crossett, Arkansas, in Committee Case No. CPC 2015-090, by Findings and Order filed November 13, 2015, for violations of AR Rules 1.1, 3.5(d), 8.2(a), and 8.4(d) was cautioned for her conduct in the representation of the defendant in a civil suit filed in the Circuit Court of Ashley County. Plaintiffs sued defendant for unlawful detainer of a house defendant was renting from plaintiffs. Defendant countersued for breach of contract and recovery of rental money paid. All circuit judges in the district recused and Judge Phillip Shirron was assigned to the case. Judge Shirron contacted plaintiff ’s counsel by telephone on October 1, 2012, and

requested copies of all of the plaintiff ’s pleadings that had been filed in the case. Judge Shirron attempted to contact Ms. Zimmerman by telephone, but got a message that she was “not accepting calls at the time.” Judge Shirron then sent Ms. Zimmerman a letter advising her that he had attempted to contact her by phone, requested that she send him copies of all pleadings filed by defendant, and asked for a telephone number where she could be reached or message left during normal business hours. Judge Shirron advised her that he would not waste his time in the future making multiple attempts to contact her at a time when she may be accepting calls. On February 19, 2013, Ms. Zimmerman, who prior to this matter, had never appeared before Judge Shirron, filed a motion to recuse the judge. She attached copies of the opinion in Jeffery Charles Elmore vs. State of Arkansas, 355 Ark. 620, 144 S.W.3d 278 (2001), and an article from a web blog called “The Committee to Expose Dishonest and Incompetent

Judges, Attorneys and Public Officials.” In her motion, Ms. Zimmerman alleged that Judge Shirron’s October 1, 2012, letter to her was “unprofessional, demeaning, sarcastic, and totally unprovoked.” She also alleged that Judge Shirron had “engaged in outrageous, unprofessional conduct in the past.” In the article, Judge Shirron is referred to as a “certified moron,” “ethical gnome,” “knucklehead,” “schmuck,” “dimwit,” and “big time dumb ass.” Ms. Zimmerman also alleged in her motion that her client would be unable to receive a “fair and impartial trial” given Judge Shirron’s “unprovoked animosity towards counsel and erratic conduct in the past.” On February 6, 2013, Judge Shirron advised Ms. Zimmerman by letter of a hearing on February 27, 2013, on plaintiffs’ motion and that she had to request a hearing on any motions she had pending. After the hearing, the Order Denying Motion for Recusal of Trial Judge was filed on March 13, 2013. Several other hearings were held related to discovery, with orders being entered. On July 19, 2013, Ms. Zimmerman

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DISCIPLINARY ACTIONS filed with the Arkansas Supreme Court a Petition for Permissive and Interlocutory Appeal, CV-13-633, on behalf of her client. Among issues that she wished to appeal was the refusal of Judge Shirron to recuse. Ms. Zimmerman continued to make accusations about Judge Shirron’s motives and professionalism in presiding over the case. Some of the accusations made by Ms. Zimmerman included a statement that Judge Shirron was “girded for war,” that Judge Shirron became unreasonably angry in the October 1 letter he sent her when he was unable to reach her by telephone, and that Judge Shirron was “angry, hostile and abusive.” Ms. Zimmerman states in the petition that she researched cases presided over by Judge Shirron and discovered Elmore vs. State of Arkansas from 2001 that was reversed and remanded because Judge Shirron’s wife was a member of the jury. Ms. Zimmerman stated that because of that criminal case, her client would not get a fair trial, even though the criminal case happened years prior to her client’s case and her client was not a party to the criminal case. She alleged that Judge Shirron struck pleadings filed by her because “the court was simply assisting in attempting to prevent [her client] Mr. Murray and his counsel from trying their case based on the facts.” On July 19, 2013, Appellees filed a Motion to Dismiss Appellant’s Petition for Permissive and Interlocutory Appeal and on September 12, 2013, the Arkansas Supreme Court entered its Formal Order denying the Petition for Permissive and Interlocutory Appeal and finding Appellee’s Motion to Dismiss moot. On September 25, 2013, Appellant filed a second Interlocutory Appeal, CV-13-839, making the same allegations and attempting to appeal the same orders as appealed in the July 9, 2013, petition previously filed. A few days later, Ms. Zimmerman’s client filed a pro se Motion for Reconsideration of the Formal Order denying the Petition for Permissive and Interlocutory Appeal in CV-13-633. On October 7, 2013, Appellees filed a Motion to Dismiss Interlocutory Appeal in CV-13-839. Appellees alleged in their petition, along with supporting

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exhibits, that appellant was attempting to appeal from the same orders which the court denied when it issued its September 12, 2013, Order. The Court denied the pro se Motion for Reconsideration. On November

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Memorial Gifts Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Gifts to the Foundation are tax deductible for federal income tax purposes and support the Foundation’s charitable work.

IN MEMORIAM

In Remembrance of Retired Chief Justice Jim Hannah Remarks by Justice Paul E. Danielson given during Hannah’s funeral service on January 19, 2016. My name is Paul Danielson. I am here today with my wife, Betsy, and our son, Erik, with a heavy heart to honor my friend, Chief Justice Jim Hannah. I have been asked to comment on some of the things that Jim had the most impact on and cared the most about. That is my charge. I specifically recall the first time I met him many years ago. I had a case in his court. I would have been a young lawyer and he a young judge. I can’t remember anything about the case, but I remember him. He made an immediate impression on me. What impressed me was how respectful, patient, and thoughtful he was. But, most of all, his genuine kindness and gentle nature. In my opinion, he had the perfect judicial temperament. Jim was meant to be a judge! When he became Chief Justice, he did not abandon those qualities one bit. He exhibited those same qualities throughout his whole career. Nine years ago I joined the court and I had the opportunity to work with him on a daily basis. We had lunch together often and spent a lot of time together. I heard him give many talks and speeches. We became good friends. After Christmas, Pat let me know that they were at UAMS. I went to see him at the hospital and that turned out to be the last time I saw him. When he and I talked, it was clear to me the things that he cared most about were his family and friends. Jim cared about the Judiciary and loved being Chief Justice. Jim cared about his coworkers: Sharri, Richard, Raina, and Kathy. After he retired, he asked about them all the time. He was so worried about them not having a job. It weighed heavily on his mind and he was pleased, grateful, and relieved when Chief Justice Brill kept his staff. Jim loved to talk about sports and he loved to tell funny things about what his good friend Judge Robert Edwards had said. I recall shortly after he retired, he called and said, “I am going to be your Robert Edwards.” Judge Edwards would often call and give him a hard time by saying, “I see you only handed down one opinion this week.” The last time I saw him at the hospital, I rattled off the top of my head some of the accomplishments he was responsible for while heading the court, and Pat asked me to share some of those with you: Every speech I heard him give to judges or

court employees contained this sentence: “Our ability to function successfully as a court and a judicial branch is totally dependent upon the public’s trust and confidence in the court system.” As a result of that belief, he was always looking for ways to improve the quality of judges, court staff, operations, and procedures in order to earn and preserve the public’s trust. He had great concern about the lack of civics education and the need to do more to teach our citizens about their government. As part of an educational outreach program he advanced a goal that within one year, volunteer judges and lawyers would make a presentation at least once in every one of our 75 counties. Hundreds of presentations have now been given and are still taking place. Probably as a result of having served as a family court judge for 22 years, Jim cared deeply about the special needs of children impacted by a troubled family and especially for kids in the foster care system. One of his early actions at the Supreme Court was the adoption of a rule which expedited the appeals of cases involving the custody and placement of children in foster care. To further the work of improving the court system’s treatment of children, he created the Supreme Court Commission on Children and Families. While he worked tirelessly in the General Assembly to promote the many issues of importance to judges, he was especially passionate about two issues: changes to our limited jurisdiction court system and the need to provide interpreters for all court participants. As to the first issue, he oversaw the most dramatic structural change in the history of our state court system, moving from seven different local courts with conflicting jurisdiction and almost 300 part-time judges to a single court— the district court—served by a full-time judge. On the second issue, personal experiences in the courtroom with non-English speaking litigants who had no way to communicate led to his interest in improving this system. He saw it as an issue of basic fairness and access to the court system. Arkansas now boasts one of the

finest court interpreter systems in the country. He believed that his responsibility was the leadership and support of the whole judicial system. He was the Chief Justice of the Supreme Court but he would often say in his speeches that the most important court was not the Supreme Court but the District Court—because that is the court with which most Arkansans have a personal contact. As a result, what that citizen sees and experiences in the smallest local court becomes that citizen’s impression of the whole court system. He preached to those employees who were serving as clerks in small communities that they were more important to the success of the judicial system than he was—and they believed it. That legacy of leadership—inspiring and enabling judges and court employees in every corner of our state—will be felt for many years to come. One of the educational programs he introduced was the “Appeals on Wheels.” Twice a year, the Supreme Court goes to an area of the state to conduct oral arguments. The program is usually held in a school or college and the public and students are invited. After oral argument, the justices visit with the students and answer questions explaining our judicial system. During his time as Chief Justice, he moved the Arkansas judicial system into the electronic age. Our documents are now maintained electronically and we are moving forward with e-filing. Arkansas is the first and only state where the appellate court publishes its official opinions online. Under Jim’s leadership, we now livestream all of our oral arguments, which are archived and available on our website. These accomplishments and Jim Hannah represent the very best of the legal profession. They signify a devotion to the rule of law, to a fair and impartial judiciary, and to equal access to justice for all people. They are a reflection of a life dedicated to the true spirit of public service. In addition to his devotion to his family and friends, his character—unmatched and indisputable—will be Jim Hannah’s greatest legacy. My hope is that the example he set for us will guide us going forward. I’ll miss our visits, his humor, and our friendship, but the state of Arkansas and the legal profession have lost “a giant.” I have no doubt that history will be kind to him. I want to thank Pat and the family for giving me this opportunity. The last thing I want to say about my service with my good friend Jim Hannah is, “It’s been an honor, Your Honor.” 

Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

IN MEMORIAM Dale L. Bumpers, former Arkansas Governor and Senator from Arkansas, died on January 1, 2016, at the age of 90. After graduating from Charleston High School in 1943, he enrolled at the University of Arkansas at Fayetteville for summer school, knowing that he would soon be drafted to serve in World War II. He served in the Marine Corps and was in Hawaii about to be shipped out to the Pacific Theater when the atomic bombs were dropped and World War II ended. After discharge from the Marines as a staff sergeant, he returned to the University of Arkansas and, upon completion of his studies there, moved to Chicago and began law school at Northwestern University. He returned to Charleston in 1951 and practiced law until running for governor in 1970. His proudest accomplishment prior to politics was his role in the peaceful integration of the Charleston schools in 1954, following the U.S. Supreme Court’s decision in Brown v. Board of Education. His only political setback was a loss in 1962 for the state legislature. He ran for governor in 1970 and was sworn in as governor in January 1971. He was re-elected governor in 1972. In 1974 he decided to run for the United States Senate and went on to serve in the Senate for 24 years, being re-elected in 1980, 1986 and 1992. He served on the Senate Appropriations Committee and the Energy and National Resources Committee, and was chair of the Small Business Committee. After leaving the Senate he briefly served as the head of the Center for Defense Information and then joined the Washington law firm Arent Fox. He and his wife Betty lived in Little Rock following retirement. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation. He was honored with the Outstanding Lawyer Citizen Award, the Access to Justice Award and a Special Governor’s Award. W. Dane Clay of Little Rock died November 24, 2015, at the age of 87. Dane was a partner with the Rose Law Firm for over 50 years, served as Firm Treasurer and then became of counsel 52

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to the firm before his retirement. Dane served as Captain in the United States Air Force, J.A.G. from 1951-1954. He graduated from Fort Smith Junior College, received his L.L.B. from the University of Arkansas School of Law at Fayetteville in 1951 and was Editor-in-Chief of the Arkansas Law Review in 1951. He was a member of the Arkansas Bar Association and a Sustaining Fellow of the Arkansas Bar Foundation. He was a member of the American and Pulaski County Bar Associations. Robert Yale Cohen II of Fort Smith died December 22, 2015, at the age of 65. Bob received his B.A. from Hendrix College and law degrees from University of Arkansas School of Law and Southern Methodist University School of Law. Bob was a member of the Arkansas Bar Association, Sebastian County Bar Association, Professional Ethics and Grievances Committee, as well as the Arkansas Supreme Court Tax Specialty Committee. O. Ray Cornelius of New Orleans died December 6, 2015, at the age of 62. Ray earned his bachelor’s and JD from the University of Arkansas in 1976 and 1979, respectively. Ray moved to New Orleans to work with Foley & Judell Law, L.L.P. He finished his career as a partner and public finance team leader with Adams and Reese LLP. He was a member of the Arkansas Bar Association, the American and Louisiana Bar Associations and the National Association of Bond Lawyers. Virginia Rayburn Gates of Springdale died January 17, 2016, at 96. Virginia was a volunteer in the Civil Air Patrol and a veteran of the United States Marine Corps, serving in the Aviation Women’s Reserve Squadron. She lived many years in Little Rock where she worked

as a court reporter and earned her law degree at UALR. She retired and moved to Guadalajara, Mexico, living there 13 years before moving to Northwest Arkansas in 1986. She was a member of the Arkansas Bar Association. Roy R. Gean Jr. of Fort Smith died December 24, 2015, at the age of 90. He was a graduate of Fort Smith High School, member of Kappa Sigma, an Eagle Scout, a member of the Scottish Rite Bodies, a 33rd-degree Mason and a veteran of the Army Air Corps during World War II. Roy passed the bar in 1947 and went into practice with his father as an attorney who established the law firm known now as Gean, Gean and Gean in 1919. He was a member of the Arkansas Bar Association. James Robert “Jim” Hannah of Searcy died January 14, 2016, at the age of 71. He attended Drury in Springfield, Missouri, on a basketball scholarship with plans of becoming a teacher and a coach. He transferred to the University of Arkansas at Fayetteville, where he received both law and accounting degrees in 1968. He was admitted to the Bar of Arkansas that same year. Although he had an offer to work in St. Louis with a national accounting firm, he decided to join the private law firm, Lightle, Tedder, Hannah, & Beebe, in Searcy, Arkansas. Jim Hannah was a tireless worker for the betterment of the Arkansas judicial system. Between 1969 and 1978, he was city attorney for Searcy, Augusta, Bradford, Des Arc, Garner, Kensett, and Rosebud; deputy prosecuting attorney for Woodruff County; city judge for Kensett and Rosebud; and juvenile judge for White County. Jim particularly loved his time on the bench. In 1978, he was elected Chancery and Probate Judge for the 17th Judicial District, a position he held for the next 22 years. In 2000, he was elected Associate Justice of the Supreme Court of Arkansas, where he served until 2005, when he was elected Chief Justice. He led the court until

IN MEMORIAM his early retirement on September 1, 2015. In addition to his many judicial responsibilities, he made time to contribute to and lead a variety of committees and organizations, improving our system of justice. While on the bench, he chaired the Arkansas Judicial Council’s Judicial Resources Assessment, Legislative, and Retirement committees; served on the Arkansas Supreme Court committees for Access to Justice, Client Security Fund, Technology, Child Support, and District Court Resources Board; and chaired the Drug Court Advisory Committee. Additionally, he served on the board and as president of the Arkansas Judicial Council and as a member of the Arkansas Board of Certified Court Reporter Examiners. He served and led national committees as well. President Obama appointed Jim to the State Justice Institute Board of Directors, where he served as chairman. Chief Justice John Roberts appointed him to the Committee on Federal-State Jurisdiction of the Judicial Conference of the United States. In 2014, Jim was named chair of the Board of Directors of the National Center for State Courts and president of the Conference of Chief Justices. Throughout his legal career, Jim was involved on a state and national level as an advocate for judicial independence, civics education, and public outreach to increase awareness of our judicial system. Jim also worked with the Arkansas Bar Association to institute an annual “State of the Judiciary” address, which he delivered each year at the joint meeting of the bench and bar. Among his many other accomplishments, he established and implemented the White County Juvenile Court and Juvenile Probation Office; was an instructor at Harding University; was a faculty advisor for the National Judicial College; was appointed by then Governor Dale Bumpers and later Governor David Pryor to the Arkansas Board of Pardons and Paroles, where he served as secretary from 1972-79; was a legislative assistant to Governor Dale Bumpers; was a member of the Court Leadership Symposium and Innovations in Governance at Harvard University; received the Ozark Ambassador Award from the North Arkansas College Foundation; was a member of the American Judges Association; was a Fellow of the Arkansas Bar Foundation; and was past president, treasurer, and secretary of the White County Bar Association.

Bradley Dean Jesson of Fort Smith died on January 11, 2016, at the age of 83. He was a gifted speaker with a quick intellect and amazing memory who was kind to all. Always ready with a quick response, he won a radio quiz show where the prize was a full scholarship to the University of Tulsa. While Jesson won honors at Tulsa and became student body president, his biggest college success was meeting Mary Ellen Everett and convincing her to marry him. On the professional side, after military service in Japan and graduation from the University of Arkansas Law School, Jesson embraced the state of Arkansas and the city of Fort Smith as his own. He served as a law clerk for Federal Judge John E. Miller, often working on the school desegregation challenges in Little Rock. Most of his career, he practiced law with the Hardin Law firm, now Hardin, Jesson, and Terry PLC. Through his practice and his community involvement, he strove to improve the lives of all Arkansans. He served as City Attorney, Legislative Secretary to Governor Dale Bumpers, Chair of the Arkansas Democratic Party and Chair of the University of Arkansas Board of Trustees. At the time of his death he was an active member of the Board of Directors for both Arkansas Blue Cross Blue Shield and the Marshalls’ Museum. Jesson was appointed by former Governor Jim Guy Tucker to complete the term of then Justice Jack Holt, Jr. In 2004, he was appointed to serve as a special master for the Supreme Court in Lakeview School District v. Huckabee, the landmark case involving public education in Arkansas. Jesson was a member of the Arkansas Bar Association where he served on the Executive Council, House of Delegates, Committee for a Modern Judiciary, and CLE Committees. He was a Fellow and Past President of the Arkansas Bar Foundation. He was awarded the Outstanding Lawyer Award and the Natural Resources Institute Award. The following is an excerpt from an article by Justice Bates with the Times Record regarding Jesson: Recently retired U.S. District Court Senior Judge Robert T. Dawson said Jesson was the “epitome of civility” in

the practice of law and that he “proved you can be a successful advocate without being abrupt or rude.” “He was always extremely civil—even in moments of intense litigation—he could always see the other side and was always very pleasant and upbeat,” Dawson said. Dawson, who practiced alongside Jesson for 33 years before making a move to the federal bench, said Jesson was not only a good lawyer, but a great friend. “I’m still in a state of shock with Brad’s passing; he’ll be missed,” Dawson said. “He was an example for all of us, from judges and lawyers and the public, in how to conduct yourself.” Jesson’s eldest daughter, Lucinda Jesson, said it was difficult to pinpoint any particular piece of her father’s work that he would consider his favorite, but said he was proud of his work on the Arkansas Supreme Court, particularly the school district case, and his time working alongside Bumpers. See more at: http://arkansasnews.com/ news/arkansas/former-arkansas-chiefjustice-brad-jesson-dead-83#sthash. TtMt94Mu.dpuf. Joe Compton Luker, Jr., of Eureka Springs died December 2, 2015, at the age of 74. Joe received his Bachelor of Engineering from Northwestern University, his Juris Doctor from University of Arkansas and a Master of Laws (Taxation) from New York University. Joe served honorably as Lieutenant Commander and Judge Advocate General (JAG) in the United States Navy. He successfully practiced law in both Arkansas and California. Hayes C. McClerkin of Texarkana died January 6, 2016, at the age of 84. He attended Washington and Lee University in Lexington, Virginia, and graduated with a B.S. degree with special attainments in Commerce in 1953. He then entered the U.S. Navy, and became the Navigator on the U.S.S.

Vol. 51 No. 1/Winter 2016 The Arkansas Lawyer

IN MEMORIAM Chilton, an attack transport ship, where he served a substantial amount of time in the Mediterranean, and attained the rank of Lieutenant. Hayes enrolled in the University of Arkansas Law School where he served as Business Manager of the Arkansas Law Review. He earned his L.L.B. in 1959. Hayes and his law school classmate John Stroud returned to Texarkana and began a law partnership. They later joined their practice with that of Alex G. Sanderson, Jr., and Willis B. Smith, forming the firm of Smith, Sanderson, Stroud and McClerkin—setting the stage for a long and accomplished career. In his practice of law, he developed an interest in the oil and gas industry, representing many oil companies over the years, and served on the Arkansas Oil and Gas Commission from 1979 to 1983. He also was an Adjunct Faculty and Lecturer in Oil and Gas Law at the University of Arkansas at Little Rock School of Law from 1980 through 1983. Through the years Hayes became active in politics and ultimately served in the State Legislature from 1960 to 1970. He also served as the Speaker of the House during the 1969-1970 term, at that time being recognized as the youngest Speaker of the House. After an unsuccessful bid for the Democratic nomination for Governor in 1970, he often credited his good friend, the late Dale Bumpers, with a precious gift by sending him back to his hometown and the family and law practice he loved. Since 1994, after his retirement from his law practice, he became the owner of Miller County Abstract Co. He was a member of the Arkansas Bar Association where he was honored with the Natural Resources Institute Award. He was a Fellow of the Arkansas Bar Foundation. Judge Charles England Plunkett of Camden died January 14, 2016, at the age of 81. He earned an athletic scholarship which allowed him to attend college by playing football at Vanderbilt University. Football would then take him from Vanderbilt to Auburn and to Tulane before, as he would often say, he felt it 54

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was time to finally “get serious and graduate,” and he then transferred to Hendrix College. From Hendrix, he attended Duke University Law School where he earned his Juris Doctorate. After finishing law school, he returned to Camden where he had his own law practice in addition to serving as County Criminal Judge before being elected as Chancery Judge in 1974. He served in that capacity for over 20 years in addition to the many areas of business with which he was involved. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation. Donald Sanford Ryan of Little Rock died on January 3, 2016, at the age of 81. In high school Don was in ROTC, later serving as a Captain in the Army and teaching at Culver Military Academy. Don attended Arkansas Tech in Russellville before going to law school in Fayetteville. He was honored to have practiced law in Little Rock for over 50 years. He was a partner at Dodds, Kidd and Ryan, a Fellow in the American College of Trial Lawyers and a member of the American Board of Trial Advocates. He was a true trial attorney who felt honor-bound to help people in need. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation. Thomas “Alan” Tougaw of North Little Rock died December 21, 2015, at the age of 29. Alan earned a Bachelor Degree from the University of Arkansas with a double major in History and Political Science. He then graduated with Honors from the UALR William H. Bowen School of Law. He practiced law at Hoskyn’s Law Firm. Albert M. Witte of Fayetteville died December 23, 2015, at the age of 92. Following his graduation from Erie East High School, he enlisted in the United States Army Air Corps in

November 1942. During his Air Force years, he flew 35 missions with the 15th Air Force in Italy as a 2nd Lieutenant Bombardier where he was awarded an Oak Leaf Medal with five clusters and the Distinguished Flying Cross. Following his discharge in October 1945, he attended the University of Chicago, earning a Ph.B in 1947 and an M.A. in English literature in 1950. He was employed as an English instructor at Ripon College in Ripon, Wisconsin, from 1950-1952. Thereafter he enrolled in the University of Wisconsin School Of Law from which he received an LL.B in 1955. He then worked as an associate in the Milwaukee, Wisconsin, law firm of Wood, Warner, Tyrell and Bruce. Witte left law practice to become a faculty member of the University of Arkansas School of Law in 1957, and except for a two-year stint at Emory University remained a member of that faculty until his retirement in 1994, although he continued to teach part time at the law school. He also was a visiting professor at other law schools such as UALR and the Universities of Illinois, Oklahoma and Houston, as well as a frequent summer school professor at Baylor University. He was a member of the Arkansas Bar Association where he served on the Committee for a Modern Judiciary. Truman E. Yancey of Fayetteville died December 3, 2015, at the age of 88. He retired from the United States Army with the rank of Lt. Colonel after 23 years of service. His highest award in his military career was the Legion of Merit. After receiving his Juris Doctor from the University of Arkansas, he practiced law in Fayetteville. He was a member of Central United Methodist Church in Fayetteville. He was a member of the Arkansas Bar Association. The information provided herein is provided by the members’ obituaries.

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