july 1983

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TO: Subscribers and Librarians

This issue of The Arkansas Lawyer is correctly numbered and dated, Le., Vol. 17, No.3, July 1983. The January1983 issue should be Vol. 17, NO.1. The next issue is incorrectly dated as of July instead of April; and should beVol. 17, No.2. Any inconvenience caused in this connection is regretted.

-Editor

July 1983Vol. 17, No. 3

(§Ie

ArkansasLawyer

SPECIAL FEATURESCover Story:

"Revolution 1"-4th of July Theme 121

The Environmental Crisisof Hazardous Waste ......•........ Gregory l. Benik 100

Juvenile Law in Arkansas .......•....... Edward Ward 106

The Exclusionary Rule"Be Damned" .....•....... William French Smith 112

Second Injury Law III W. W. Bassett, Jr. 122

THE OFFICIAL PUBLICATIONOF THE

ARKANSAS BAR ASSOCIATIONThe Tax Equity and Fiscal

Responsibility Act of 1982

Annual Meeting

.......... Joseph M. Erwin 130Paul J. Nicholson

118

OFFICERS

J. l. (Jim) Shaver, Jr., PresidentDennis Shackleford, President-ElectAnnabelle Clinton, Secretary-TreasurerRichard F. Hatfield, Council Chairman

EXECUTIVE COUNCIL

Fioyd Thomas, Jr.Norwood PhillipsW. Kelvin WyrickCharles CarpenterRobert M. CearleyKaye S. OberlagD. Mac GloverMarcia McivorRobert HornbergerTommy WomackJulian FoglemanJames A. McLarty

EX·OFFICIO

J. L. (Jim) Shaver, Jr.Dennis ShacklefordJames D. CypertAnnabelle ClintonFrank C. Elean, IIRichard F. Hatfield

EDITOR

C. E. Ransick

ASSOCIATE EDITOR

Carol Utley

REGULAR FEATURES

President's Report J. L. (Jim) Shaver, Jr. 98Juris Dictum Robert L. Lowery 134Law School News 110In Memoriam 138Executive Council Notes ...•......... Annabelle Clinton 116Service Directory IBCAddenda C. E. Ransick 140AICLE News Claibourne W. Patty, Jr. 120The Arkansas Bar Foundation Randall W. Ishmael 99Lawyers' Mart . 137Young Lawyers' Update Frank C. Elcan, II 135Legal Economics 126Methods and Means Bernard Stern in 128Oyez . . . .. Carol Utley 136

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas BarAssociation, 400 West Markham, Little Rock, Arkansas 72201. Second classpostage paid at Little Rock, Arkansas. Subscription price to non-members of theArkansas Bar Association $6.00 per year and to members $3.00 per year includedin annual dues. Any opinion expressed herein is that of the author, and notnecessarily that of the Arkansas Bar Association, The Arkansas Lawyer, or theEditorial Committee. Contributions 10 The Arkansas Lawyer are welcome andshould be sent in two copies to the Arkansas Bar Center, 400 West Markham, LittleRock, Arkansas 72201.

All inquiries regarding advertising should be sent to The Arkansas Lawyer aboveaddress.

july 1983/Arkansas Lawyer/97

PRESIDENT'S REPORT

by J. L. (JIM) SHAVER, JR.

I have mixed feelings of pride andrelief as the end of my tenure asAssociation President draws near"pride" in the knowledge that theArkansas Bar Association not only is aleader in the Southern Conference ofBar Associations, but also is nationallyrecognized as a fine organization"relief", perhaps "regret" would be thebetter expression, in passing on thebaton of leadership,

Any Past President will tell you thatthe Annual Meeting is the culminationof the Bar year. A successful andattractive program is a "must". Accordingly, it was a great relief that WalterR. Niblock either "volunteered" or was"drafted" to be our Annual MeetingChairman.

Walter's concept of an integratedprogram-"Anatomy of The TortTrial"-reaches the activity of our totalmembership. He has backed his ideawith recruiting of seven nationally renowned legal experts in the trial practice field.

I want to take this opportunity topublicize our Annual Meeting program, June 8-11, at the Arlington. Wewill not only have the great professional program, but also an interestingsocial one.

The opening technical session on

98/Arkansas Lawyer/July 1983

Thursday morning, June 9th, will feature Michael Colley on "Psychology ofThe Trial"; Jeffrey Smith on "Standards of Care for The Trial"; and DavidShrager on "Preparation for TheTrial". Colley, an ATLA Past-President, Shrager, the ATLA PresidentElect, and Smith, the top authority onstandards of care, will lead the attendees in the initial phase. They will alsoserve as the panel of experts for theYoung Lawyers Section afternoonprogram on Thursday-all are invitedto this question-and-answer period.

Friday's sessions are just "tops".JUdge Woods will cover "Judicial Attitudes Toward The Trial". RobertCartwright-also an ATLA Past-President-will cover "Tactics at The Trial".Edward McGinn-the "Belli" expert-will discuss "Structured Settlements". All this on Friday morning.(We still do not ken whether Belli himself will attend our meeting.)

Then on Friday afternoon, we haveWindle Turley, noted lecturer and author, on "Use of Video PresentationsDuring The Trial" and on "ProductLiability Cases".

And what a program-socially II Welook forward to seeing you all at thePresident's Reception on Wednesdayevening-a convivial beginning for the

Annual Meeting. The President-Elect'sReception, honoring Dennis and JaneShackleford, will open Friday evening's festivities, to be followed by theHawaiian Luau and Dance. The Annual Dance, under YLS auspices, willfeature the "Big Band Sound" onThursday night. There will be a specialLadies' Program, plus sports for all.We are indebted to John Selig for the"Legal Run Around," Hugh Harrisonfor the men's golf tourney, and GlennJones for the tennis play.

Finally, don't forget the many othermeetings, especially the House ofDelegates' Meeting on Saturday morning. Plan to attend the meetings ofinterest.

In writing the finis to the Bar year, Iwould like to acknowledge the work ofthe House of Delegates, the Council,and all the Committees/Sections. It isnot possible here to recognize thegreat number of individuals, who havecontributed so much during the Baryear. Their efforts have been mosthelpful.

Bonnie and I are most appreciativefor having had the opportunity to represent the members of the ArkansasBar Association during this year. Wewill always cherish our experiences.Aloha! f-...

ARKANSASBAR fOUNDA TION

by: Randall W. Ishmael

In the April 1978 issue of The Arkansas Lawyer, then Chairman John Gill had printed theFoundation's financial status as of December 3D, 1977. I believe that it is good practice periodically tofurnish the Association's membership with this information. There follows the Interim Statement for F-Y1982·83 at February 28, 1983.

OPERATING TRUSTACCOUNT ACCOUNT

$ 2,658.73 $ $3,176.55 5,835.28

26,420.83$ $102,851.49 $ 129,272.32

$ 24,875.009,662.92 34,537.92

CURRENT ASSETSCASH-GHECKING

Operating AccountTrust Account

CASH-SAVINGSOperating AccountTrust Account

INVESTMENTS-oPERATINGU.S. Treasury NotesMoney Market "CD"Bonds

INVESTMENTS-TRUSTMoney Market "CD"U.S. Treasury NotesBondsTOTAL OPERATING ACCT.

TOTAL TRUST ACCT.

"R&R" ESCROW ACCOUNTSavingsBondsMoney Market "CD"

FIXED ASSETSFurnishings & Equip.Less Accum. Depr.BuildingLess Accum. Depr.Building & EquipmentLand & ImprovementsTOTALS

OTHER ASSETSUtility DepositUnamortized Bond PremiumInvestment Management Ace!.

$ 20,000.00124,263.47274,519.09

$ 63.617.48$524,810.60

$ 35,570.4529,757.50

$ 98,480.95 $89,649.20

1,319,998.04241,743.71

$1,418,478.99 331,392.91174,337.91

$1.592,816.90 $331,392.91

$ 10.00338.11

7,713.32TOTAL

418,782.56

65,327.95

$ 8,831.75

1,078,254.331,087,086.08

174,337.91$1,261,423.99

$ 8,061.43$1,923,241.45

$ 15,108.43

$ 131,470.93

$ 909,918.13

$ 866,743.96$1,923,241.45 ........

July 1983/Arkansas Lawyer/99

$862,471.13( 20.00)

4,292.83

$750,576.8686,300.0035,570.4529,757.507,713.32

CURRENT L1ABILITIESACCOUNTS PAYABLESCHOLARSHIPS

Misc. ScholarshipsLONG TERM L1ABILITIES

BUilding MortgagePrepaid Lease IncomeRepair & Reserve-Escrow Ace!.Investments-"R&R" Ace!.Deferred Compensation Acc!.

MEMBERS' EQUITY-Balance at 31 JanuaryAdjustment-Members' EquityReceipts in excess of disbursementsTOTAL LIABILITIES & MEMBERS' EQUITY

The Environmental Crisis Of Hazardous Waste-

Superfund, A Congressional Responseby Gregory L. Benik

(Editor's Note: This timely article is reprinted with permission of the author and the Rhode Island Bar Association. The articlefirst appeared in the Rhode Island Bar Journal, January 1983. The Author, Gregory L. Benik, is Chairman of the Rhode IslandBar Association Committee on Environmental Law; and is a partner in the Providence Law Firm of Hinckley & Allen.)

Recent events have dramaticallyemphasized the consequences of pastreckless hazardous waste disposalpractices. At Love Canal in NiagaraFalls boarded·up houses offer mutetestimony to the tragic disruption ofthe health and lives of the residentsnear that abandoned hdzardous wasteburial site.' Near Louisville, Kentuckythere is a seven acre dump, known asthe Valley of the Drums, where 17,000drums were found littered around thesite, many of them oozing their toxiccontents onto the ground and into anearby river' At the Picillo pig farm inCoventry, Rhode Island, at least20,000 barrels laid buried until Sep·tember 30, 1977, when a shatteringexplosion and resulting fifty·footnames lead to their discovery.'

These and similar stories have fos·tered a growing public realization ofthe staggering task the nation faces inovercomilly this environmental crisisand have acted as a catalyst forfurther regulatory efforts to controlhazardous wastes. Perhaps the mostambitiOUS legislative response to theproblem came in 1980 when Congressenacted the Comprehensive Environ·mental Response, Compensation, andLiability Act of 1980 ("CERCLA").'This article will review the key provi·sions of CERCLA and discuss some ofthe major Questions surrounding itsimplementation.

Production of hazardous waste hasmushroomed over the years. In 1977,EPA estimated that the volume gener·~ted exceeded 35 mill inn tons with afuture annual growth rate of 3%.s Morerecent figures suggest that the UnitedStates produces 57 million tons of

·Gregory L &nlk, a porlner WIth the law firm 0/ HInckley & Allen, recf'ltJed h,s low df>gree from CaseWestern Reserve UnllNfsrly m 1973 Mr Bemlc IS IheChaIrman of Ihe Rhode Island Bar ASSOCIatIOn Commillet> on Enurronrnentol Low

l00/Arkansas Lawyer/July 1983

hazardous industrial chemical wastesa year.' It is estimated that RhodeIsland's approximately 200 generatorsof hazardous waste produce over 6million gallons of hazardous wasteannually.'

EPA believes that 90'\, of suchwastes has been disposed of improperly' Improper disposal ranges fromperfectly legal practices until recentlyto unlawful and reckless conduct.Nearly half of all hazardous wasteshave been placed in unlined surfaceimpoundments. About 30"~ is buriedwith other nonhazardous waste inordinary landfills or stored aboveground in drums or barrels. Ten per·cent has been incinerated in an uncon·trolled fashion without any measuresto prevent harmful air emissions. Theremainder has been disposed of indis·criminately and dangerously - suchas midnight dumping along rural road·sides or into sewers and creeks.9 Thelotal national bill to clean up theseunsafe hazardous waste disposal sitescould reach $60 billion."

Responding to this multibillion dollardilemma, the 96th Congress, in theclosing hours of the session, enactedCERCLA, commonly referred to asthe Superfund statute. Designed to"get on immediately with the businessof cleaning up the thousands ofhazardous waste sites which dot thiscountry,"" CERCLA creates severalregulatory approaches to hazardouswaste management. Central to thelegislative program is the creation of a$1.6 billion Hazardous SubstancesResponse Fund (the "Fund"), financedjointly by the petroleum and chemicalindustries and the federal governmentover five years. Through use of theFund CERCLA authorizes the federalgovernment to commence administrative cleanup of hazardous waste siteswhere there is an actual or threatenedrelease of hazardous substances. Private parties statutorily responsible for

the hazardous substance release willbe sued for recoupment of moniesexpended out of the Fund. Within thebroad contours, CERCLA establishesspecific procedures regardingresponse authority, abatementactions, liability, and the filing ofclaims.RESPONSE AUTHORITY

The federal government's responseauthority is found in §104 of CER·CLA.12 Under this section, the Presi·dent 13 is empowered to arrange (orpollution removal and other remedialaction and response measures l4

necessary to protect the public healthor welfare or the environmentwhenever:- any hazardous substance is

released or there is a substantialthreat of such a release into theenvironment; or

- there is a release or substantialthreat of release into the environ·m~nt of any pollutant or contaminant which may present an immi·nent or substantial danger to thepublic health Or welfare ... "However, there are several signifi-

cant restraints on federal cleanupauthority under §104. First, cleanupactivity cannot be undertaken by fed·eral authorities unless the governmentdetermines that removal and remedialaction will not be done by the owneror operator of the site from which therelease or threat of release emanatesor by any other party responsible forsuch release or threat." To satisfy thisrequirement, EPA has adopted aprocedure whereby it sends so·called"notice letters" requesting allegedlyliable parties to take voluntarily pres·cribed remedial action at the site, asan alternative to further federal action.These notice letters are issued withoutadministrative hearings or findings offact and there is no procedure foradministratively challenging the basisfor the issuance of the demand letter

Liability: Evaluation of Residual Employability including LaborMarket Information

PROFESSIONAL SERVICES TO TH E LEGAL PROFESSION IN TH EFOLLOWING AREAS:

QUALIFIED AS EXPERT WITNESS IN ARKANSAS ANDOTHER JURISDICTIONS

underwrite 10 percent of the costs ofremedial action>""ABATEMENT ACTION

Section 106 of CERCLA proVidesadditional legal authority to initiateabatement actions and to issue administrative orders in imminent hazardcases. Under this section the federalgovernment may commence anabatement action when "there may bean imminent and substantial endangerment to the public health or welfareor the environment because of anactual or threatened release of ahazardous substance. "~I Any judicialrelief fashioned by the courts in

continued on page 102

1501 North University, Suite 764Little Rock, Arkansas 72207(501) 666-0304

Comprehensive VocationalEvaluations for. Divorce Cases,

Social Secu rityDisability Cases,Long TermDisability Cases,Auto No-FaultCases

Workers' Compensation: Evaluation of Residual Employability,Medical Coordination,Development of IndividualizedRehabilitation Programs, DirectJob Placement

Liability; Evaluation of re-employment potential after partialor total permanent disability

~CRAWFORD & COMPANYHEALTH AND REHABILITATION SERVICES

Picillo Farm site; the Davis LiquidChemical Waste Disposal site; and theWestern Sand and Gravel site."

Section 104 also includes a limit onthe costs that can be incurred at asite. Unless the President finds thatcontinued response is necessary toprevent an emergency, the federalgovernment is limited to a $1 millionexpenditure for a given site. However I

additional expenditures beyond the $1million limit are authorized if the stategovernment enters into a cooperativeagreement whereby il agrees to"assure all future maintenance of theremoval and remedial actions" and

or the scope of the remedial actionrequested.

Since EPA's next move would be toinitiate response measures, the recipient of a notice letter faces a quandry.If the recipient rejects or delays EPA'ssettlement offer the government itselfwill undertake cleanup and sue theresponsible party for reimbursement.Waiting patiently for the governmentto act may significantly increase theultimate liability. On the other hand, asettling party has no assurance that itsliability for further reimbursement isextinguished if a settlement is reached.These unresolved questions surrounding CERCLA make response to noticeletters a complicated task."

Second, §104 mandates that reme·dial action be conducted consistentwith the National Contingency Plan(NCP)." The current NCP, developedunder §311(c) of the Clean WaterAct," is designed to provide a coordinated response to oil and hazardoussubstance spills.'" Section 105 ofCERCLA requires the President toamend the existing NCP "to reflectand effectuate the responsibilities andpowers created by lCERCLAl" byestablishing "procedures and stand·ards for responding to releases ofhazardous substances, pollutants, andcontaminants. .. ."21 Specific mattersmust be addressed in the revised plan.Of critical importance to actual cleanup operations are the requirementsthat the NCP include methods fordetermining the "appropriate extent ofremoval, remedy, and other measuresauthorized by [CERCLAI," as well asfor evaluating the "relative cost" ofsuch remedies." Furthermore, therevisions must include a means of"assuring that remedial action measures are cost effective over theperiod of potential exposure ... ,"and they establish criteria for deter·mining priorities among different sitesrequiring remedial actiol1.11

The statutory deadline for finalizingthe revised NCP was the beginning ofJune 1981." EPA proposed initial revi·sions on March 12, 1982," and pro·mulgated the revised NCP on July 16,1982." The revised plan cannot takeeffect until Congress has had at leastsixty calendar days of continuous session from the date of promulgation inwhich to review the plan" However,on October 21,1981, EPA issued an"interim priority list" of what it calledthe 115 worst hazardous waste sites inthe United States and targeted thelocations for cleanup activities. ThreeRhode Island sites are on the list: the


, , , Hazardous Waste-, , "continued from page 101

response 10 such actions must bebased upon the "eqUities of the case"and thp "public interest."" In addition,EPA is authorized to ,ssue "suchorders as may be necessary to protectpublic health and welfare and theenvIronment. '. Q

There are a number of unresolvedissues regarding the nature of theEPA's authority under §106. At thethreshold IS the question of what con·stitutes an "immment and substantialendangerment." SlIlce §106 is but oneof several immment hazard provisionsthat Congress has IIlcluded in environmentallegislation, gUidance as tothe scope of the ",mminent and sub·stantial endangerment" standard canbe found in judicial interpretation ofthese analogou::a ::.Iatutory provisions.

In United Slates v Vertac Chemical Corp.," the court held that theimminent hazard standard had beenmet under both §7003 of RCRAand §504 of the Clean Water Actwhere the migration of dioxin·contaminated waste into surface andground waler presented "a reasonablemedical concern over the publichealth."" The Vertac court reliedheavily upon Reserve Mining Co. vEPA,'" where the Eighth Circuit heldthat the Clean Water Act's standardof "endangering the health or welfareof persons"J7 includes potential as wellas actual harm Similarly, court inlerpretation of comparable provisions ofthe Clean Air Act'" indicates that"endanger means something less thanactual harm""

Therefore, it appears that the"imminent and substantial endangerment" test focuses on the risk ofharm, not the harm itself. Actual injuryneed not be shown and the standard ismet if the risk is imminent. A hazard isimminent if there is a "substantial likelihood that serious harm will be expe·rienced" if preventive action is nottaken.';' Moreover. It IS arguable thatthe immlllency threshold 's directlyrelated to the magl1ltude of the risk.

The s,milant,es between RCRA'simminent hazard provision and§ l06(a) of CERCLA were explicitlyrecogl1lzed in Uniled Slates v ReillyTar and Chemical Corp." For fifty·five years defendant, Reilly Tar andChemical Corp., operated a plantwhere it refined coal tar into creosoteoil and treated wood products withcreosote and other preservatives. Our·ing this period defendant disposed of102/Arkansas Lawyer/July 1983

the chemical wastes resulting from itsoperations on slle.

Alleging that many of defendant'schemical wastes are carcinogens andtoxic" and that those wastes hadmigrated into groundwater used as awater supply for nearby communitips,the federal government brought anaction under both §7003 of RCRA and§100(a) of CERCLA. The defendantmoved to dismiss the complaint on theground that the facts alleged did notconstitute the sort of "disastrousemergency situation" required toinvoke Ihe immll1ent hazard provisionsof RCRA and CERCLA.

The court rejected defendant'sargument and held that the factsalleged by the government were suffi·cient to establish an imminent andsubstantial hazard to health or theenvironment. In doing so, the courtreaffirmed that if the risk of harm, notthe harm IIself, IS ,mminent the stand·ard has been met. The court furtherobserved that the harm is substantialwhere there is:

(1) a subSlantlallikehhood ihal contaminants capable of causmgadverse health effects will bemgested by consumers If prevenllveaction 15 not taken; (2) a substantialslallsllcal probabllllY that disease WIllresult from the presence of contarmnants In dnnkll1g water; or (3) theIhreat of subslantlal or serious harm(such as exposure 10 carcll10genlCagents or olher hazardouscontaIl1lnants), II

Judicial decisions interpreting §7003of RCRA are also instructive in deter·milling the possible retroactive applicalion of § 106. Cases have uniformlyheld that §7003 confers jurisdictionover acts of d,sposal which precededthe enactment of RCRA in 1976." Forexample. 111 United States v Price,the court observed that §7003 doesnot pUlllsh past wrongdoing or imposehabtlity for IIlJunes IIlflicted by pastacts. Ralher. the sec lion IS directed atthe current existence of a hazardouscondItIon. Therefore, the court saw"no retroactivity problem with the sta·tute.'" SlIlce §)06 actIons would alsobe dlreclPr! at current offensive conditions, II would appear that thIS sectionwould not be found to be imperm,ssi·bly retroacllve even though some ofthe acts which caused the imminentcond,tIon preceded the enactment ofCERCLA.

While the above analysis impliesthat the federal government's author·ity under §106 is rather broad, otherconsiderations suggest a more limited

application of §106. First, the case lawindicates that the remedy availableunder §7003 is narrow. '" That sectiondoes not authorize full·scale cleanupof hazardous sites. To the contrary,EPA is limited to lIl)unctive reliefnecessary to abate the Immll1enthazard.

A SImilar IIlterpretation of § 106 ofCERCLA should obtain. Indeed, theexistence of the broad cleanup mea·sures authorized by §104 lends furthersupport to the argument that Con·gress did not contemplate a majorcleanup role for §106. Moreover, therequirement that any relief fashionedunder §106 must be based upon the"equlI,es of the case" should provideadditional hmltatlon on the scope ofthis section. Under established equita·ble prinCIples the Isuance of an injunction reqUires a "balancing of equitiesand hardshIps.... '" Among the"equities" b lancpd would, presuma·bly, be the negligence, knowledge orinvolvement of the defendant in theconduct sought to be enjoined. Whereit can be demonstrated that a defen·dant had no relationship to or knowl·edge of the complained·of conduct,injunctive relief is generally not war·ranted." The adequacy of the legalremedy provided by §104 should alsopreclude equitable relief in manysituations.

In sum, there are a number of factors which should limit the scope andapplication of §106. Section 106abatement actions should be limited toemergency situations where there is agrave and immediate risk of harm tohealth or the environment. Given theavailability of §§ 104 and 107 CERCLA,§106 should not be employed routinelyas a tool for general cleanup ofhazardous sites. Finally, strict liabilityunder § 106 should not apply. Applica·tion of common law concepts of liabil·ity applied in injunction cases shouldlimit responsibility only to situationswhere the defendant had some rela·tionship with, knowledge of, or controlover the hazard presented by the slle.

A narrow interpretation of thescope of §106 was recently adopted inUnited States v Wade." Wadeinvolves an action brought by the federal government under §7003 ofRCRA and §106 of CERCLA againstthe owner of a hazardous waste siteand six hazardous waste generatorsthat used the Wade site. One of thegenerators, Gould, Inc., moved todismiss on the ground that neither§7003 nor §106 imposed liability onnon-negligent past generators of

hazardous waste who have no presentconnection with the site. Stressing thegovernment's authority to undertakecleanup under §104 and then proceedagainst generators under §107,'''procedures which the government"astonishingly ignore[d]," the courtfound that neither the legislative history of CERCLA nor the plain language of §106 gave "any hint of anintent to confer liability on pastgenerators."51

LIABILITYPerhaps the most far-reaching ele

ment of CERCLA is the liabilityscheme outlined in §107_"lntended to"assur[e] that those who causedchemical harm bear the cost of thatharm ,"" §107 makes the follow-ing parties liable for cleanup costsincurred by the government under§104 of CERCLA:- the current owner and operator of

the cleanup site;- the owner and operator of the clean

up site at the time of disposal of thehazardous substance;

- any party that transported hazardous material to a disposal or treat·ment facility of its own choosing;and

- any party that arranged for the disposal or treatment of hazardousmaterial at the site or for the transportation of such material to thesite.>';

While §107 does not explicitly holdgenerators of hazardous waste liable,there is little doubt that the lastcategory is intended to impose liabilityon at least some generators ofhazardous waste. This repesents asignificant departure from existingcommon law.

Under legislation originally considered by the Senate, responsible parties were to be held jointly, severally,and strictly liable for pollution-relateddamages.'>"

However, specific references to jointand several liability were eventuallydropped and, as enacted, CERCLAdoes not expressly provide a meansfor allocation of Jiability amongdefendants_ Nevertheless, EPA andthe Justice Department have takenthe position that CERCLA authorizesthe imposition of joint and severalIiability__

The legislative history on the question is conflicting.So However, it isarguable that Congress intended thatliability of joint defendants be determined under traditional common lawprinciples_ Under the common law,joint and several liability is imposed

where the injury is indivisible; wherethe total injury can be reliably apportioned a defendant is liable only for itsproportionate share of the harm.:);

As a practical matter. unless thehazardous wastes at a given site are ina discrete, identifiable form it will beextremely difficult to apportion environmental damage accurately amongresponsible parties_ If joint and severalliability is imposed the likely targetswill be those defendants with thefinancial resources to pay the cleanupbill. In most instances this means thatthe generators will be targeted_

If CERCLA authorizes imposition ofjoint and several liability, a corollaryquestion arises, whether a right tocontribution exists under CERCLA_ InNorthwest Airlines. Inc. v Trans·port Workers Union,:"j the SupremeCourt observed that the right to contribution depends on "language of thestatute itself, its legislation history, theunderlying purpose and structure ofthe statutory scheme and the likelihood that Congress intended tosupersede or supplement existingstate remedies." Although the legislative history appears to support such aright, a definitive answer must comefrom the courts.

While CERCLA does not refer to"strict liability" as such, §101(32)"defines "liable" or "liability" as the"standard of liability which obtainsunder §311 of the Federal Water Polution Control Act." Several cases haveheld that §311 creates strict liability.For example, in Burgess v M/VTamano, the First Circuit stated that§311 of the Clean Water Act creates"[Iiabilityl without fault for thegovernment's cleanup costs. "t>!J

Thus,a responsible party may be liablefor §104 cleanup costs even though hedisposed of wastes in accordance with"state of the art" disposal practicesthat were fully legal at the time ofdisposal.

Defenses to liability under §107 areIimited_ CERCLA recognizes defensesbased on acts of war or acts of God_"'In addillon, a defendant can avoid liability if 11 can be shown thai Iherelease or threat of release of hazardous materials was caused solely by anIndependent third party and that thedefendant exerCised due care withrespect to that party and that hazardous substance. However, this defensedoes not apply to agents or employeesof the defendant or to those actingunder "a contractual relationship existIng directly or indirectly with thedefendant. "oJ

Thus, the third-party defense doesnot insulate a generator from liabilityfor acts or omisions by waste transporters or treatment or disposal facili·ties with which the generalor contracted, regardless of whether thehaulers or facilities were negligent inhandling or disposing of the hazardousmaterial. Only where the pollution isthe result of vandals or Ihe action ofthird parties beyond the contractualarrangemenl will the defense beavailable.USES OF THE FUND

Section 111 of CERCLA authorizes,he Fund to be used for the followingpurposes: (I) payment of governmentresponse costs incurred under §104;(2) payment of response cos'sincurred by any other person underthe NCP; (3) paymenl of claimsasserted and compensable but unsatisfied under §311 of the Clean WaterAct; and (4) payment for certain ot herpurposes, including restoring, rehabilitating, replacing, or acquiring theequivalent of damaged or destroyednatural resources, conducting epidemiological studies, and purchasingcleanup equipment.hl Significantly,since both §107 and § III explicitlyallow recovery of response costs by"any other person," it would appear'hat CERCLA authorizes a privateright of action for damages if an individual acts consistently with the NCP.Thus parties may be able to engage ina broad range of pollution control andcleanup activities and recover thecosts from the Fund_

All claims against the Fund mustfirst be asserted against the knownpar lies responsible for the hazardoussubstance release_ If the claim is notsatisfied Within 60 days, the claimanthas the option of initiating court actionagainst the party or presenting theclaim to the Fund.'" If a claim is presented 'a the Fund, Ihe governmentmust atlempt to arrange a settlementbetween the claimant and the allegedpolluter."

If a settlement is not reached within45 days, the government may eithermake an award or decline to make anaward.l)t) If the government refuses tomake an award, the claimant mayappeal to a board of arbitrators andthe courts;' If the government makesan award and the claimant is dissatisfied with the amount, he may appealdirectly to the courts'''' Once a claimis paid, the government is subrogatedto the rights of the claimant and may

continued on page 104July 1983/Arkansas Lawyer/103

· .. Hazardous Waste-...,continued from page 103maintain an action to seek recovery ofclaim payments in another proceeding.'" This should prevent depletion ofthe Fund and assure that partiesresponsible for environmental damageare ultimately held accountable fortheir conduct.

CONCLUSIONSociety's past toxic waste disposal

practices have left a legacy of abandoned and inactive hazardous wastesites. The existence of these "tickingtime bombs" presents the most difficult hazardous waste managementissue facing the country_ CERCLAallempts to tackle the problem byproviding an administrative mechanism for identification and cleanup ofthese sites prior to liabilityildjudicution.

Yet many questions regarding thescope and application of CERCLAremain unanswered_ How should liability for hazardous waste cleanup beallocated among past and present disposers, landowners, generators, andtransporters? Should strict liabilityapply in all cases or may equitabledefenses be asserted? How extensivemay government cleanup operationsbe? Despite the sense of urgencywhich surrounded its passage - tocleanup "environmental hot spotswithout delay"70 - CERCLA's ambiguities and detailed procedures havepartially frustrated attainment of thisgoal. However, EPA's stepped-upenforcement effort should serve to fillin the gaps that are the invariableresult of hastily-drafted, compromiselegislation.1. Ah hough Love Canal served as 1he elaTion call lor

regulatory reform. It was but one of four hazardouswaste dIsposal sites operated by HookerChemICals and PlastiCS Corp In the Niagara Fallsarea. In facl, onE' of Hooker's other sites, the 15aCTe Hyde Park Landfill Site, was used as adIsposal site for more than twO decades andcontams an estimated 80,000 tons of chemICalwaste malenals and by products,four Ilmeslhe volume of chemIcals dIsposedof al Love Canal. See, United Slates vHooker Chemicals and Plastics Corp., 17Env'l Rep Cas. (BNA) 1808, 1810 (W.O.N.V1982), Tniling. "P"mslakmg Negotiation Leads toLmdmark Cour! Order Appro"'lng SettlementAgreement In Hyde Park HClzardous Wasle Clel)nup Litigation," 12 EnvII. L Rep. 15013 (1982).

2. EPA analYSIS of soli and surface water m thedramage area Idenl1fied about 200 organicchemicals and 30 metals. Office of Water & WasteWater Management, U.S, EnvironmentalProtechon Agency, Everybody's Problem:Hazardous Waste 2lSW·826)(198O).

3. Rhode Island Department of EnvironmentalManagement, Hazardous Waste Newsletter,Vol. I, No.2, p. 3. See, Wood v Pieillo, R.I. ,443 A.2d 1244. 1245 (1982).

4. Pub. L. 96·510 (December II, 1980),42 U.S.C.§960J et seq. CERCLA IS also commonly referredto as Superfund.

104/Arkansas Lawyer/JUly 1983

5.5 EPA J. No 2, at 12 (Feb 1979)

6. Note, "Allocatl1lgthe Costs of Halardous WasteDisposal," 94 Harv, L Rev 584 (\981)

7. The Providence Journal, January 19. 1982. pAS

8. S Rep. No % 848. 96th Con9; . 2d Sess 3 (l980)

9. Canter, "Himudous Waste Disposal and the NewState Sltmg Programs." 14 Nat Resources Law421. 423 (1982)

10. Fisher, "The TOXIC WaSte Dump Problem and aSuggested Insurance Program," 8 Best Coli EnvAff L Rev 421. 428 i 1980)

II. 126 Cong Rec H11787 (dady ed December 3.1980)

12. 42 US C §9604

13. On August 14. 1981, PreSident Reagdn SignedExecutive Order 12316 delegatl1lg theadml1llstratlve responslbllilies vested III thePreSident under CERCLA to a number of federaldgenCles, lI1cludrng EPA. the Coast Guard, theDefense Deparlment, and others 46 Fed Reg42237lAug, 20. 1981)

14. CERCLA distinguishes lwlween hazardous waste"removal" and "remedlal action" Removal refersgenerally to cll"anup and short term relief §101(23)Remed,al aCllons are thoM! that arc "consistentWith permanent remedy taken Instead of or Inaddition to removal" §I01(24) "Response"rncludes both removdl and remedIal action§101(25)

15. CERCLA §l04iaHIl. 42 USC §9604 (a)(l)

16.ld.

17. For excellent diSCUSSIons of the options open tothe reClpllwts of notice \etlers. see Wemberg andSqUIre. "How to Respond to 'Notlce Lel1ers' As aPotential Superfund Defendant," The NationalLaw Journal, February 8.1982. at pp 26,27, andMall. "AvailabIlity of JudiCial Rev\ew of CleanupDemand Leiters Under the ComprehenSive Environmental Response. Compensation and LiabIlityACI of 1980:' 1 ChemK:al & RadlatlOll WasteLitigation Reporter 541 (1981)

lB. CERCLA §104(a)( 11.42 USC §9604(aH 1)

19.33 U.S.c. 1321(2)

20. See 40 C F R Part 1510

21. 42 U.S.c. §9605

22. CERCLA §105(3). (2). 42 USC §9605(3). (2)

23. CERCLA §105(7}. (8)

24. Section 105 of CERCLA orders the PreSIdent 10

revIse and republish the NCP "[wjlthln onehundred and eighty days aher the enactment ofthiS Act"

25.47 Fed. Reg. 10972 (March 12. 1982)

26.47 Fed Reg 31 ISO iJuly 16, 1982).

27. CERCLA §305, The Enwonmental Defense Fundrecently sued EPA to challenge the adequacy ofthe NCP. whK:h became effective on October I.1982. Env'!, Rep. (BNA) Current Development.November 5. 1982.

2B. 12 Env'!. Rep. (BNA) 828 (Oct. 30.1981). On July23, 1982, EPA added 45 addlhonal sites to thiS !1stEnv't. Rep (NBA) Current Developments, July 30.1982

29. CERCLA § 104(c)(I) & (3). 42 U.s.C §9604(c)( I) &(31.

30. CERCLA §106(a), 42 U S.C. §9606(a)

31. Id.

32.ld.33. See, e.g., §7003 of the Resource Conservation and

Recovery Act ("RCRA") 42 U.S.c. §6973; §303(a)of the Clean AIr Act of 1970, 42 USc. §7603(a)(Supp.IV. 1980); §504(a) of lhe Clean Water Act,33 U.S.c. §1364(a); §1431 of the Safe DrinklllgWater Act, 42 U.S.C. §3OOI(a).

34.489 F. Supp. 870 (E.d. Ark. 1980).

35.489 F. Supp. at 885.

36.514 F 2d 492. Szq (8th C,r 19751~en bane)

37.33 USC §116O(gHIJ

38.42 USC §75'ISkIO)(AJ

39. Ethyl Corp. v EPA. 541 F 2d l. 13 (D C Clr I (enbanel, cert. denied. 426 U,S 941 (1976)

40. Environmental Defensl? Fund, Inc. v EPA. 465F 2d 528. 540 lD C C,r 1972)

41. 12 Envll L Rep 20954 (D Mmn Aug 20. 1982)

42. The chemIcal wastes resulting from the refining ofcoaltM mtO creosote 011 mdude polynucle<lr,tromatlc hydrOl..-ar;.bons WAHl and phenoliccompounds Marw PAH compounds <He ammalcarcmogens <lnd su~pected human carcinogensPhenolic comopounds are toXI~ Id. at 20955

43. Id. oIt 20956

44. See. e.g., United Stales v Price, 523 F Supp1055 (0 N.J 1981); United Slales v DiamondShamrock Corp., 17 Env't Rep Cas (BNA) 1329(N D OhIO 1981); Uniled Slates v SolventsRecovery Service of New England, 496 F Supp.1127 (D Conn 19801

45. United Slates v Price, supra. 523 F Supp at1072

46. Id. at 1071

47. TVA v Hill. 437 US 153.193 (1978)

48. See Naughton \I Bevilacqua, 60S F 2d 586. 5891st C,r 1979)

49. United Stales v Wade, No 791426, Slip Op,(E D Pa Sept 7. 1982)

50. The Wade Court. In dicta, observed that "lslechon107 clearly Includes generalors of hazardous wastE"among those potenl1ally liable 10 be sued for cleanup costs mcurred under section 104 " Id. at 16

51. Id. at 18

52.42 USc. §%O7

53. S Rep No % 848 supra al 13

54.42 U.S C. §%07(a)(l) (4) ResponSible parties areresponSible for n) al\ costs of remedial and removal actIon mcurred by federal and stategovernment conSistent With the NCP; (2) any otherresponse costs I1lcurred by any other personconsistent WIth the NCP; and (3) damages forInjury, destruCIIOl), or loss of natural resources. 42US C §9607(a)(4)(A) (C)

55. See S 1480 §4(a). 96th C~ng., 2d Sess. (1980)56. See, e.g., 126 Cony Rec H11.788 (ddlly ed.

December 3, 1980) (Letlers from Alan A Parker.ASSIstant Attorney General for LeglslatlVe Affairs!;126 Cong Rec. S 15.004 (dally ed Nov 24.1980)(statement of Sen Helms)

57. See Prosser. Handbook of the Law of Torts,§52, at 315 16 (4th ed 1971)

58. US. 101 S Cl 1571.1580 (1981)

59.42 U.S C. §9601(32)

60.564 F.2d %4, 982 tlst C,r 1977). cert. denied. 435U.S. 941 (1978) See also U.S. v LeBeau' Bros.Towing Co., 621 F 2d 787 (5th C,r 1980); StuartTransportation Company \I U.S.. 5% F 2d 609(4th Clr 1979). But see United States v M/V BigSam, 505 F supp. 1029 (E_D La 1981); TugOcean Prince, Inc. v United Slates. 584 Fed1151 t2ndOr 1978)

61. CERCLA §107(b}( I) and (2). 42 U.S C. §9607(b)( 1)and (2)

62. CERCLA §107(bj(3). 42 U.S C §9607(b)(3)

63.42 U S.C §961l(a)(I).(4)

64. CERCLA §112\a), 42 USC §9612(a).

65. CERCLA §112(bH2HA). 42 USc. §%12(b)(2i\A)

66. CERCLA §112lb)(3), 42 U,S C. §9612(b)(3)

67. CERCLA §112(b)(4). 42 U.S C. §%12(b)(4).

68. CERCLA §112(bH3), (4HG), 42 U.s.c. §9612(b)(31.(4)(G).

69. CERCLA §112(c)( 1). 42 U.s.C. §%12(c)( 1)...70. 126Cong. Rec. HI1794.....

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A BRIEF GUIDE*

Juvenile Law in Arkansas:

INITIATING JUVENILE COURTPROCEEDINGS

A. Non Emergency SituationsThe clerk of the county court serves

as the clerk of the juvenile court," andany adult may file a written petitionwith the clerk, setting forth the factsallegedly rendering the subject juvenile dependent/neglected or in need ofsupervision under the JuvenileCode." Again, an abused child is alsoa dependent/neglected child under thestatutory definitional scheme of theacts being discussed. The petitionmust be verified," and resident defendants are to be notified by summons."A juvenile alleged to be in need ofsupervision is entitled to representation by counsel," and in certain circumstances this right cannot bewaived.21

B. Emergency SituationsWhere there is an imminent danger

to a child's life or health, a lawenforcement officer, designated cityemployee, or department of SocialServices employee may take the childinto protective custody." Likewise, ahospital or treating physician maykeep custody of a child where not todo so would present an imminentdanger to the child's life or health."Persons and institutions acting in good

bound by the decisions of the juvenilereferee, and the orders and judgements of the referee are the decisionsof the county jUdge."" The juvenilecourt's jurisdiction is original and exclusive.'s

The Arkansas Juvenile Code of1975, hereinafter referred to simply asthe "Juvenile Code", provides that"Any juvenile within this State shall beconsidered a ward of this State, andmay be subjected to the care, custody,control and jurisdiction of the juvenilecourt. "0 A "juvenile" is defined as "anyperson, whether married or single,who has not yet reached his 18thbirthday."0

by

Edward Ward

"Jurisdiction over juvenile mattersunder (the Juvenile Code) is vested inthe county courts of the several counties of this State."" As a practicalmatter, due to the definitionalschemes employed, any matter ofdependency/neglect or abuse arisingunder the Juvenile Code will also betreated as lying within the purview ofthe Child Abuse and Neglect Reporting Act, and vice versa. "When thusexercising jurisdiction, the countycourt shall be known as the juvenilecourt of the county in which it is located,"" and the county judge shall bethe juvenile judge." The county judgemay appoint a referee to serve asjuvenile judge at the pleasure of thecounty judge." If he makes thisappointment, the county judge is

of Supervision." The definition of"Juvenile(s) in Need of Supervision"contained in that act' is broader thanthat contained in the Juvenile in Needof Supervision Act of 1977,' but thepurpose of this latter act is very limitedin scope, as will be explained later inthis article.

With the increased attention beingfocused by the media on the problemof child abuse, and the strain reportedly being brought upon families bydifficult economic conditions, the general practitioner is more likely thanever to be called upon by distraughtparents for representation in theJuvenile Courts of this State. Thislikelihood is probably increased by theebb flow of Legal Services in Arkansas. Accordingly, this article has beenprepared as a practical, generalizedguide for the general practitioner. Thearticle deals with those provisionscovering abused juveniles, neglectedjuveniles, and juveniles in need ofsupervision, leaving juvenile delinquency for treatment elsewhere. Thejuvenile law of Arkansas has beenfluid in the past several years, and thediligent practitioner is encouraged toconsult his pocket part supplements.

THE THREE ACTSThe corpus of Arkansas' juvenile

law is contained in the ArkansasJuvenile Code of 1975,' the ChildAbuse and Neglect Reporting Act,'and the Juvenile in Need of Supervision Act of 1977.' The ArkansasJuvenile Code of 1975 is the broadestof the three by far, covering not only"Dependent/Neglected" juveniles and"Delinquent Juvenile(s)" as defined bythat act,' but also "Juvenile(s) in Need

'Copyright 1983 Edward WardlOB/Arkansas Lawyer/JUly 1983

faith in these circumstances are immune from any liability that mightotherwise result from their actions,"and their good faith is generally presumed."

The juvenile court must be notifiedimmediately." Where the court determines there is sufficient probablecause to believe that the juvenile is inimmediate danger of harm or beingremoved from the state, the court is toissue an emergency ex parte order forthe removal of the child from the custody of its parents, guardian, or custodian." A petition, verified by the person alleging the abuse or neglect,must be submitted to the court by thenext business day following the issuance of the emergency ex parteorder. 28

Following the issuance of the emergency order, the juvenile court shallhold an adjudication hearing withinfive business days, but this time maybe extended upon the motion of anyparty for good cause shown." Noticeshall be given by summons to residentdefendants," and the defendants shallbe immediately informed of the emergency order and their right to a hearing. 3

'

DISPOSITIONAfter adjudicating a juvenile to be

dependent/neglected, abused, or inneed of supervision, the court mustnext determine the best disposition tomake of the juvenile and his family.The purpose of these proceedings isrehabilitative, not punitive." TheJuvenile Code specifically provides

Edward Ward graduated from theSchool of Law, University of Arkansas,Fayetteville in May 1978. He becamea staff attorney for Arkansas SocialServices in Pine Bluff in 1979, andtransferred to the Texarkana office in

that no dependent/neglected juvenileshall be committed to any institution orfacility used for the ,"imprisonment ofdelinquent juveniles... "33 The sameproscription applies to the placementof juveniles in need of supervision."Indeed, the primary purpose of theJuvenile in Need of Supervision Act of1977 is to insure against such punitivedispositions." It is the policy of theState of Arkansas that both juvenilesand their families be rehabilitated"within the context of the juvenile'sown home environment," if possible."If necessary, however, the court mayremove the juvenile from the custodyof his parents and place him withsome person, agency, or institution."The court may order health care forthe juvenile," and require the parentsto make child support payments to thecourt-appointed custodian." Generally, the court may order evaluationand counseling or treatment "affectingthe family"'· of a juvenile in need ofsupervision. As to a dependent/neglected or abused juvenile the juvenilecourt may order counseling or treatment of the juvenile "and/or membersof the juvenile's family... (where)such counseling or treatment isnecessary to the family's proper carefor the child .....

It is here, in this area of rehabilitative disposition just described, that Arkansas juvenile law's most obvioussubstantive deficiency exists. For nowhere in either the Arkansas JuvenileCode of 1975 or the Child abuse andNeglect Reporting Act is there reference to what is probably the greatest

1981. His primary responsibility hasbeen to represent the agency inJuvenile Court proceedings involvingchild abuse and neglect. He has beenresponsible for representing theagency in 20 of Arkansas' 75 counties.

contributory factor in family violence:alcohol abuse. Dr. J. W, Fianzer, ofthe University of Arkansas' GraduateSchool of Social Work, characterizesfindings of the high prevalence of alcohol abuse in family violence as"staggering."" The association between alcoholism and child abuse hasbeen well documented, and Dr.Fianzer reports that clinical studieshave indicated that as many as 65% ofchild abusers are also alcohol abusers." At the same time, however,those abuse situations which arecaused or compounded by alcoholismare often easier to deal with, due to thefact that the drinking can be dealtwith." Arkansas law as early as 1955recognized alcoholism as an "illnesssubject to treatment and abatement,"which treatment can help prevent broken homes." In addition, the AlcoholAbuse and Alcoholism Act declaresthat ..... alcohol abuse and alcoholism is a medical-social problemwhich can be reduced significantly...(by) treatment, and rehabilita-tion Thus, a primary contributor tochild abuse, while ignored in the blackletter of the Juvenile Law, has beenrecognized elsewhere in Arkansas lawfor nearly three decades as a treatablesource of family disintegration. Ofcourse, not all alcoholics are childabusers, and not all child abusers arealcoholics, Where a child is adjudgedto have been abused, it should bedetermined whether the abusing parent is affected by alcoholism, and ifso, whether the alcoholism caused the



The Lawyer's Microcomputer

Juvenile Law...,continued from page 107

misconduct. To paraphrase Dr.Flanzer, if causation if present andignored, the child abuse will notcease.·7

The juvenile courts in Arkansasmust make decisions which will have agreat bearing, ultimately, uponwhether dysfunctional family units willbe made healthy and whole again, orwill in time disintegrate. These courtsshould be given specific statutoryguidelines for the detection andappropriate handling of those casesinvolving the greatest identified singlesource of child abuse.

Regardless of the disposition made,whenever the court retains jurisdictionover any case in which it has found ajuvenile to be dependent/neglected orabused, the court must review thecase every six months." And, generally, an order removing a juvenile inneed of supervision from his parentsremains in effect for an indeterminateperiod of not more than two years."

TERMINUSThe majority of dependency/neglect

and abuse cases should end with thejuvenile never having been removedfrom the home." Where the child hasbeen removed, he should be eventually returned, with a period of supervision. If this return is not possible, thenattempts are made to place the childwith relatives outside the home. Generally, when efforts at rehabilitation failand no willing family members areavailable outside the home, the statewill proceed to Probate Court for anultimate termination of parentalrights."

13. Ark. Stat. Ann. Sec. 45-408 (Repl. 1977).


15. Arl<. Slat. Ann. Sec. 45·440 (Repl. 1977).

16. Arl<. Slat. Ann. Sec. 45-405 (Repl. 1977).

17. Arl<. Stat. Ann. Sec. 45·423 (Supp. 1981).

18. Arl<. Stat. Ann. Sec. 45-424 (Repl. 1977).

19. Arl<. Slat. Ann. Sec. 45-425 (Supp. 1981).

20. Arl<. Stat. Ann. Sec. 45-413 (Supp. 1981).

21. Id.


23. Id.

24. Arl<. Slat. Ann. Sec. 42-814 (Repl. 1977).

25. Id.


27. Ark. Stat. Ann. Sec. 45·438(1) (Supp.1981).

28. Ark. Stat. Ann. Sec. 45-438(2) (8)(Supp.1981).

29. Ark. Slat. Ann. Sec. 45-438(2) (e) (Supp.1981).

30. Ark. Stat. Ann. Sec. 45-438(2) (d) (Supp.1981).

31. Id.

32. Ark. Stat. Ann. Sec. 45-406(b) (Supp.1981).

33. Id.

34. Ark. Stat. Ann. Sec. 45·406 (Repl. 1977).


36. Ark. Slat. Ann. Sec. 45-406(b) (Supp.

1981 ).

37. Id.



40. Arl<. Stat. Ann. Sec. 45-436(4) (c) (Supp.1981).

41. Arl<. Stat. Ann. Sec. 45-436(5) (b) (Supp.1981).

42. Flanzer, J. P. "Alcohol and Family ViQ·Ienca," Paper prepared for The Mid-American Institute on Violence In Families,1978.

43. Ranzer. J. P. "Alcohol Abusing ParentsAnd Their aa«ered Adolescents," Currentsin Alcoholism, Vol. VII, p.530.

44. Flanzer, J. P. "Alcohol and Family VIOlence: Double Trouble," The AbusivePartner, ed. by Maria Roy, p.138.



47. Flanzer, J. P. "Alcohol Abuse And FamilyViolence," 1978.

48. Arl<. Stat. Ann. Sec. 45-436(5) (a) (Supp.1981).

49. Ark. Slat. Ann. Sec. 45-436(4) (b) (Supp.1981).

50. Ark. Stat. Ann. Sec. 45-406(b) (Supp.1981 ).

51. Arl<. Stat. Ann. Sec. 56·126 (Supp. 1981),51H27 (Supp. 1981). and 56-128 (Supp.

1981). 1-...

FOOTNOTES1. Ark. Slat. Ann. Sees. 45·401 et seq.

2. Ark. Stat. Ann. Sees. 42·807 et seq.

3. Ark. Stat. Ann. Sees. 45-601 et seq.

4. Ark. Stat. Ann. Secs. 45-403(4)(Repl.1977); 45-302(2) (Supp. 1981).

5. Ark. Stat. Ann. Sec. 45·403(3) (Repl. 1977).

6. Arl<. Stat. Ann. Sec. 45-603(3) (Repl. 1977).

7. Ark. Stal. Ann. Sec. 45·602 (Repl. 1977).

8. Ark. Slat. Ann. Sec. 45-404 (Repl. 1977).

9. Ark. Slat. Ann. Sec. 45-403(1) (Repl. 1977).


11. See Ark. Stat. Ann. Sees. 45-403(4) (Repl.1977) and 42·807 (Supp. 1981).

12. Arl<. Stat. Ann. Sec. 45·405 (Repl. 1977).


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Calling All AlumniTwo events for alumni of UALR

School of Law, including graduates ofthe Arkansas Law School and theEvening Division of the University ofArkansas, will be held this spring.First, an alumni party will be held atthe home of Sheffield Nelson on theevening of April 29. At this gathering, aportrait of former dean Robert Walshwill be unveiled. The annual businessmeeting of the UALR Law SchoolAssociation will be held on June 9,during the Annual Meeting of theAssociation at Hot Spnngs.

and Financial Aid were held for theprospective students and their advisors. The students also toured theschool, attended a first year class, andmet with faculty and students.

Moot Court FinalsThe finals of the intramural moot

court competition will be held onThursday, April 7, in the South Courtroom of the Old Federal Building. Thejudges for the competition will be Justice Frank Holt of the Arkansas Supreme Court, Judge Tom Glaze of theArkansas Court of Appeals, and United States District Judge WilliamOverton. The finalists in the competition are, representing the petitioners,Samuel Ledbetter and Linda Oakleyand, for the respondents, Brooks Gilland JoCarol Gill. Winners andrunners-up of the competition will receive cash awards, and will be honored at a reception following the argument.

the Pulaski County Bar's YouthAwareness of Law program.

Pre-Law AdvisorsPre-Law Advisors and prospective

law students from Arkansas undergraduate schools visited the School ofLaw on Friday, March 4. Sessions onAdmissions, Law School Curriculum,

Law School Hosts ABAClient Counseling CompetitionTen teams representing law schools

from Arizona, Arkansas, Colorado.Kansas, New Mexico, Oklahoma andUtah competed in the RegionalCompetition of the Client CounselingCompetition sponsored by the YoungLawyers Division of the American BarAssociation held at the UALR Schoolof Law, March 4-5. The participantswere entertained at a reception at theArkansas Law Center on Fridayevening. The reception was sponsored bythe Pulaski County Bar Association.Preliminary rounds were held Saturday morning, and the final round washeld Saturday afternoon. The University of Denver won the competition.

Bar Examiners VisitLaw School

Representatives of the Board of BarExaminers met with law school students and faculty on Thursday, February 10. William Prewett, JudgeRobert Dudley, Don Schnipper, andKenneth Johnson discussed the barexamination and answered questionson its content, administration, andgrading.

Dean J. W. LooneyAssistant Dean Ellen Brantley

LAW SCHOOL NEWS

SCHOOL OF LAW, UNIVERSITYOFARKANSASATLITILE ROCKFaculty News

A book by Dean Lawrence H. Averill, Estate Valuation Handbook, hasrecently been published by JohnWiley. Associate Professor O. FredHarris, Jr. has been appointed to theExecutive Board of the Quapaw AreaCouncil, Boy Scouts of America. Professor Harris spoke at the Sixth Annual Labor Law Seminar sponsored bythe Labor Law Section of the ArkansasBar and the Arkansas Institute forContinuing Legal Education. His topicwas '"Survey of Recent Developmentsin Employment Discrimination: TitleVII, *1981, and the Equal Pay Act.'"Assistant Professor Norman Steinhas been appointed to the Board ofthe Arkansas Endowment for theHumanities by Governor Bill Clinton.Professor Stein will serve as a facultymember at the National Clinical Teachers Training Conference of the Association of American Law Schools atNew Orleans, April 21-23. AssociateProfessor John Sheffey'S article entitled '"Securities Law Responsibilitiesof Issuers to Respond to Rumors andOther Publicity: Reexamination of aContinuing Problem'" was recentlypublished in The Notre Dame Lawyer. Associate Dean Ellen Brantleyspoke on The Legal Status of Women:A Historical View at Womens Studiesclasses at UALR March 9 and 14.Professor Glenn Pasvogel spoke tothe North Pulaski Bar Association onFebruary 4, on recent changes inbankruptcy law. Assistant Dean ClayPatty spoke to a class at McClellanHigh School on property law as part of

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETTEVILLEFaculty Activities

Phil Norvell is serving as a memberof the subcommittee on Oil and Gasfor the Rocky Mountain Mineral LawInstitute and is the School of Law'srepresentative to the Eastern Mineral110/Arkansas Lawyer/July 1983

Law Institute. He recently attendedactivities for these organizations inHouston and Knoxville. He also continues his service as eastern stateseditor of the Oil and Gas Reporter.He presented a program at the 37th

Annual Mississippi Law Institute on"Secondary Term Problems inMississippi Lease Forms'" and was aspeaker at the 22nd Annual ArkansasNatural Resources Law Institute.Richard Richards, whose textbook

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The following students have beenaccepted for full membership on theArkansas Law Review:Mike Bennett Fayetteville, ARJim Clark Bentonville, ARKitty Gay Chelsea, OKCarol Goforth West Fork, ARSkip Henderson Conway, ARRobert Hornstein . Philadelphia, PAJoel Huggins Tuckerman, ARJohn Jewell Little Rock, ARBilly Parker .. Hughes Springs, TXJohn Tull Lonoke, ARMelody Williams Little Rock, AR

Apprentices to the law review havealso been selected and are to complete a casenote before full membership is granted. New apprentices are:Claudia Driver Hot Springs, ARStephen Hough Fort Smith, ARCynthia Jones Friendswood, TXRichard Massey North Little

Rock, ARVan Buren, AR

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Duty to Warn of Dangerous Propensities and Rules Involved in the Use ofPrescription Drug Products Intendedfor Human Consumption: Where Is ItAnd To Whom Is It Owed? The LegalSignificance of Package Inserts."

Client CounselingAn interschool client counseling

competition was held in early spring toselect the school's team for the regional competition. Kitty Gay andMicki Harrington (and alternatesCarol Goforth and Joy Durwood)placed second in the regional competition in Little Rock. The final round waswon by the team from the University ofDenver.

Law ReviewThe law review membership has

selected the following officers for1983-84:

Editor-in Chief Mike BennettManaging Editor Kitty GayArticles Editor Carol GoforthStudent WritingsEditors John Tull

Billy Parker

"Cases and Materials on EmploymentDiscrimination" was reieased earlierthis academic year spoke on copyrightlaw at the Southeastern UniversityPrinting and Duplicating ManagersConference and on recent developments in employment discrimination atthe 6th Annual Labor Law Seminarco-sponsored by the Labor Law Section of the Arkansas Bar Association.George Skinner was a speaker at theS. W. Association of Law Libraries. Heserves as chairman of the Location ofAnnual Meetings Committee and amember of the annual meeting arrangements committee. Assistant Librarians Roger Becker, Lou Beckerand Maurice Pope also attended theSWALL annual meeting in Tulsa.Wylie Davis has continued to chairthe National Conference of BarExaminer's Committee on Contractsfor the Multistate Bar Examination. Heis teaching at Texas Tech School ofLaw during the 1983 summer session.Robert Laurence attended the AALSWorkshop a Teaching Bankruptcy andthe Federal Bar Association's IndianLaw Conference where he spoke onthe execution of judgments on Indianreservations. Robert A. Leflar's newcasebook on Conflict of Laws wasreleased early in 1983 and he hascompleted articles for the ArkansasLaw Review and the law reviews atPace, Mercer and Maryland. NeilHamilton and Jake Looney has anarticle in a recent edition of the SouthDakota Law Review entitled "Federaland State Regulation of Grain Warehouses and Grain Warehouse Bankruptcy" A second article by Hamiltonand Looney (along with Chuck Culver,agricultural aide to Sen. Dale Bumpers) "Marketing Farm Products: TheFarmer As Creditor and Related Problems of Bankruptcy" appeared in TheAgricultural Law Journal.

Annual Letourneau AwardSecond year student William David

Hardin won second place in the national student competition of theAmerican College of Legal Medicinefor papers on medical-legal topics.The award was for his paper "The

Moot CourtEdward Corrigan and Jenniffer

Horan, third year students, and members of the 1981 National Moot Courtteam, entered the 7th Annual RobertF. Wagner, Sr. Labor Law Moot CourtCompetition held at New York LawSchool in New York City.

July 1983/Arkansas Lawyer/ll1

The Exclusionary Rule

"BE DAMNED"by The Honorable William French Smith

ATTORNEY GENERAL OFTHE UNITED STATES

A century ago, the railroad tycoonWilliam H. Vanderbilt was askedwhether he operated his railroads forthe benefit of the pUblic and responded: "The public be damned!"In recent years, many citizens havewondered whether government's attitude toward fighting crime has become: Let the law-abiding public"be damned." Although governmenthas regularly redoubled its efforts, ithas been amazingly unsuccessful inhalting even the growth of crime.When I entered office, nearly nine often Americans believed that the courtsin their own areas failed to dealharshly enough with criminals-an increase of almost one-third since 1972.Nearly eight of ten Americans did notbelieve that our system of lawenforcement worked to discouragepeople from committing crimes-anincrease of almost fifty percent since1967.

To some extent, we have needlessly allowed our historic concern for therights of the accused to overwhelm theeven more historic first principle ofgovernment: Providing for the defense of society. More and moreAmericans recognize that an imbalance has arisen In the strugglebetween law and the lawless. Today, Iwant to speak in some detail aboutone weight that contributes to the imbalance, the exclusionary rule.

Beginning in its 1914 decision inWeeks v. United States, the U.S.Supreme Court has declared that evidence obtained in violation of thefourth amendment to the Constitutionis inadmissible in federal criminalprosecutions. The exclusionary ruleis a judicially created rule of law. It112/Arkansas Lawyer/JUly 1983

is not articulated in the fourth amendment itself, which reads instead:

"The right of the people to besecure in their persons houses,papers, and effects, againstunreasonable searches and seizures, shall not be violated."

In fact, the exclusionary rule is not tobe found anywhere In the Constitution,the Bill of Rights, or the federal criminal Code. It was also not inheritedfrom English law. To this day, neitherEnglish law nor the law of any othercivilized country requires the exclusionof such evidence.

Although this court-created doctrinehas been criticized from its inception, ithas become a very significant featureof the federal criminal justice system.The states themselves were less convinced of the rule's value following itsenunciation in the Weeks case. In thethree decades following the Weeksdecision, sixteen states adopted therule-but thirty-one states refused.

In 1949, the U.S. Supreme Courtsquarely confronted the decision ofmost states not to adopt the exclusionary rule. In Wolf v. Colorado, theCourt held that the fourth amendmentdid apply to the states through the dueprocess clause of the fourteenthamendment, but that the fourteenthamendment did not forbid state courtsfrom admitting evidence obtained byan unreasonable search and seizure.Twelve years later, in Mapp v. Ohio,the Supreme Court changed its mindand held the exclusionary ruleenforceable against state criminalprosecutions.

Since 1961, the exclusionary rulehas been applicable to all state andfederal criminal prosecutions-withthe effect predicted by Justice Cardozo long ago: "The criminal is to gofree because the constable has blundered." Indeed, the scope of applicability of the rule have been expandedby the courts in recent decades farbeyond the more limited beginning inthe Weeks case. As Harvard Professor James Q. Wilson summarized thesituation more recently:

" ...the cost of deterring improper police conduct does not generally. fallon the police. No officerIs punished when the exclusionary rule is invoked; rather theprosecutor's case is lost. . . If aguilty person goes free becauseimproperly collected evidencethat would have established hisguilt Is excluded, then the victimof the crime, and society at large,bear the costs of the police error... The exclusionary ruleoften operates as a kind ofregressive tax that places theburden of attain ing some publ icpurpose on those least able topay."

Clearly, the most disturbing feature of the exclusionary rule is thatits invocation can result in the freeing of a demonstrably guilty criminal.

No matter how technical a mistakean officer makes---€ven if he is actingin reasonable good faith, for example,by acquiring a warrant that Is only

continued on page 114JUly 1983!Arkansas Lawyer!113

"State and federal law enforcement officers and prosecutorialauthorities must find quite intolerable the present state of uncertainty, which extends even tosuch an every day question asthe circumstances under whichpolice may enter a man's property to arrest him and seize avehicle believed to have beenused during the commission of acrime."

To the same end, Justice Rehnquistdissented in Robbins and cited Justice Harlan's 1971 concurring opinionin Coolidge v. New Hampshire:

In the two cases of Belton andRobbins, three justices held bothsearches legal. Three justices heldboth illegal. And three justices controlled the ultimate decision that Robbinswas illegal and Belton legal. Evenafter Robbins and Belton, however,the law governing police conduct insimilar searches remained uncertain.Justice Brennan observed in his dissent in Belton:

"The Court does not give thepolice any 'bright line' answers tothese questions. More important,because the Court's new ruleabandons the justificationsunderlying Chimel, it offers noguidance to the police officerseeking to work out theseanswers for himself."

two packages wrapped in greenopaque paper in the recessed rearcompartment of the car, opened themwithout a warrant and found 30pounds of marijuana. In the Beltoncase, an officer found a jacket in thepassenger compartment, unzippedthe pocket without a warrant, andfound a quantity of cocaine.

Both cases required a technicalanalysis of several complicated doctrines: the "automobile exception"cases concerning the validity of warrantless searches of cars and theircontents; the doctrine of "search incident to arrest" defined by Chimel v.California; and the watershed case ofUnited States v. Chadwick, in whichthe Court held that police must obtaina warrant to open a closed container inan automobile when its possessor hasexhibited a "reasonable expectation ofprivacy" in it.

The lack of empirical evidence insupport of the exclusionary ruleshould come as no surprise.

"There is no empirical evidenceto support the claim that the ruledeters illegal conduct of law enforcement officials... rWleshould be prepared to discontinue what the experience of overhalf a century has shown neitherdeters errant officers nor affordsa remedy to the innocent victimsof official misconduct."

As Chief Justice Burger himself hasnoted:

As Justice Rehnquist has stated,the rule "unrealistically requires thatpolicemen investigating seriouscrimes maKe no errors whatsoever."One of the greatest problems with theexclusionary rule is that it often placesan impossible burden on police officers. The rule is invoked upon the mosttechnical of violations-even when theofficer could not have reasonablybeen expected to have done differently. The rule is applied in a fashionthat requires of police officers a betterunderstanding of what the law will bethan is required of judges. And whenthe police officer fails to meet thatimpossible burden, society is made tosuffer the release of a guilty criminalwho would otherwise be behind bars.Simply put, the law of the fourthamendment is so uncertain and soconstantly changing that police officers cannot realistically be expected toknow what judges themselves do notyet know.

rule is based or to determine thelimits of its effectiveness."

Let me illustrate my point with several cases that have reached theUnited States Supreme Court in justthe last two terms. In 1981, the UnitedStates Supreme Court decided thecases of New York v. Belton andRobbins v. California. The cases areremarkably similar factually. In bothcases, police officers lawfully stoppeda car, smelled burnt marijuana, discovered marijuana in the passengercompartment of the car, and lawfullyarrested the occupants. Thereafter, inthe Robbins case, an officer found

"IThe] purpose [of the exclusionary rule] is to deter-to compel respect for the Constitutionalguaranty in the only effectivelyavailable way-by removing theincentive to disregard it."

Nevertheless, even as the Courthas emphasized the deterrent rationale for the exclusionary rule, asubstantial body of evidence hasgrown up questioning the efficacy ofthe rule in achieving its goal of deterrence.

subsequently held to be technicallyincorrect-an illegal search results inthe exclusion of any evidence resulting from the search. There is no weighing by the court of the seriousness ofthe crime or the significance of theevidence. Even a good faith attemptby a law enforcement officer to ensurethe legality of the search will not-if atechnical flaw is uncovered-save theevidence of crime.

"Today, more than fifty yearsafter ihe exclusionary rule wasadopted for the federal courtsand almost a decade after it wasimposed upon the state courts,there is still no convincing evidence to verify the factual premise of deterrence upon which the

As originally enunciated by the Supreme Court, the rationale for theexclusionary rule was twofold: to deterunlawful police conduct and to preserve judicial integrity by preventingcourts from becoming "accomplices inthe willful disobedience of a Constitution they are sworn to uphold." Inrecent year5, however, the Court hasrefused to cite the jUdicial integrityrationale. This is not surprising. Afterall, what good does it do to judicialintegrity to enforce a court-made rulethat requires the release of clearlyguilty criminals on the most technicalof grounds? In recent years, as in the1960 case of Elkins v. United States,the Court has instead emphasized:

What then are the arguments infavor of the exclusionary rule?

In 1970, Utah Supreme Court Justice Dallin Oaks-then a professor atthe University of Chicago LawSchool-reported the results of hisexhaustive study for the American BarFoundation. He concluded:

· .. Exclusionary Rule. __,continued from page 113

It is not surprising that less than oneyear after these decisions the Supreme Court asked both sides to address whether Robbins should be reconsidered. In its 1982 decision inUnited States v. Ross, the Court reconsidered the holding in Robbinsand reversed itself.

To understand fully what confronts a police officer who attemptsin good faith to comply with thefourth amendment, one need onlyconsider these three cases.

The search that the Supreme Courtheld illegal in the Robbins case hadbeen found to be legal by the California courts. The search that the Supreme Court held to be legal in theBelton case had been found illegal bythe New York Court of Appeals. Thesearches that the Supreme Court heldlawful in the Ross case had been heldunlawful by the D.C. Circuit en bane.Of the fourteen judges that consideredRobbins seven found the search lawful, seven found it unlawful, and theSupreme Court held it unlawful. InBelton although eight judges considered the search unlawful, fourteenjudges and the Supreme Court foundthe search lawful. In Ross, fifteenjudges found at least one of the twosearches unlawful, thirteen found atleast one of the searches lawful, andthe Supreme Court held bothsearches lawful. In just these threecases, there were thirty votes that atleast one of the searches was unlawful, but thirty-four that at least one ofthe searches was lawful. In spite ofthis judicial disagreement, the Supreme Court would today apparentlyhold all of these searches lawful. Is itreally any wonder that police officersattempting to observe the strictestrequirements of the fourth amendmentmay sometimes guess wrong. With somuch uncertainty, however, shouldsociety punish a wrong guess by letting a criminal go free?

The deterrent purpose of the exclusionary rule is not served whencourts apply it to situations in whichappellate cases are unclear, con-114/Arkansas Lawyer/July 1983

fused, or even contradictory. Yetcourts do apply it in those circumstances. And police are confronted with the question of whether toconduct a warrantless search in thefield when the circumstances they arefacing are not covered by existingcase law.

Supporters of the exclusionary ruleargue, however, that the rule does nothave any significantly adverse effectson the criminal justice system. Theyclaim that it is infrequently invoked andeven less frequently applied. Proponents of the rule often rely upon a1979 study by the General AccountingOffice. According to that report, evidence was actually suppressed at trialin only 1.3 percent of federal criminalcases, and only four-tenths of onepercent of declined cases were declined because of fourth amendmentproblems. That study is, however,exceedingly weak support for the exclusionary rule's continuation.

First, the 1.3 percent is a percentage not of cases that reached trial butof all cases brought into less than halfof the U.S. Attorneys' offices. It doesnot account for those cases that lawenforcement agencies never formallypresented to U.S. Attorneys' officesbecause of fourth amendment problems. The 1.3 percent is not a percentage of cases brought to court or totrial-which would be a larger andmore significant figure for assessingthe impact of the exclusionary rule onthe courts. Indeed, the GAO studyitself notes that thirty-three percent ofthe defendants who went to trial filedfourth amendment suppression motions. It also notes that more thanfifty-five percent of all motions filed bydefendants involved the fourthamendment-an amount two andone-third times greater than the nextmost numerous type of motion. And acareful reading of the GAO Reportindicates that-in the very large U.S.Attorneys' offices, for exampletwenty percent, not 1.3 percent, of thedefendants who went to trial and hadhearings on their suppression motionsactually succeeded in having evidencesuppressed.

The burden of the exclusionaryrule is similarly great at the appellate level.

As Judge Malcolm Wilkey has notedabout his own U.S. Court of Appealsfor the District of Columbia:

"In the ... years 1979-81 wewrote opinions in 95 criminalcases, in 21 of which, or 22.1%,the question of excluding theevidence because of an allegedillegal search and seizure required analysis and decision."

Just as the exclusionary rule places atremendous burden on our courts, itconsumes many of our scarce prosecutorial resources. The size of thatburden can be assessed by a recentsurvey we conducted of our U.S. Attorneys throughout the country. Theyreported that modification of theexclusionary rule was the legislativechange that would be of most help tothem. In fact, nearly sixty percent ofthe U.S. Attorneys listed modificationof the exclusionary rule as their first orsecond priority.

The 1.3 percent figure also fails toaccount for the effect of fourthamendment concerns on the morethan eighty-five percent of cases disposed of through plea bargains ordecisions to discontinue prosecution.Such concerns often lead to the disposal of cases prior to a verdict at trial.

The figure of four-tenths of one percent concerning cases declined primarily because of fourth amendmentproblems is similarly misleading. TheGAO admits that it considered onlyfelony cases. Yet, it is a general policynot to decline to prosecute felonycases when fourth amendment problems are unclear, as they usually are.

Last, the GAO study focuses onlyupon U.S. Attorneys' offices. Theexclusionary rule has an ever greaterimpact upon the states because that iswhere the overwhelming number ofcriminal cases are handled. Indeed,the empirical studies of state criminalsystems have apparently shown amuch higher percentage of successfulsuppression motions than the GAOstudy found in the federal system. Forexample, in a 1971 study of threebranches of the Chicago Circuit Court,thirty percent of the defendantscharged with gambling, narcotics, orconcealed weapons offenses successfully moved to suppress evidenceof their crimes.

The courts are overburdened intheir attempts to dispense justice, andthe exclusionary rule is a major causeof that burden and the resulting slowness and uncertainty in the course ofjustice.

This much is then clear. The exclusionary rule does result in the release of guilty criminals. The exclusionary rule consumes a tremendousamount of our scarce judicial andprosecutorial resources-and contributes to the public perception of inefficient and ineffective justice.

In addition, other mechanismsnow exist to deter violations of thefourth amendment by law enforcement officers.

As Justice Rehnquist observedthree years ago, changes in the lawsince the Supreme Court's extensionof the exclusionary rule to the states in1961 have made "redress more easilyavailable by a defendant whoseconstitutional rights have been violated." As Rehnquist notes, the Supreme Court's decision in Monroe v.Pape

"gave a private cause of actionfor redress of constitutional violations by state officials. The subsequent developments in thisarea have... expanded thereach of that [private cause ofaction]. Monell v. New YorkCity Dept. of Social Services... made not only the individualpolice officer who may havecommitted the wrong, and whomay have been impecunious, butalso the municipal corporationwhich employed him, equally liable under many circumstances.Bivens v. Six Unknown Fed.Narcotics Agents ... made individual agents of the FederalBureau of Narcotics suable fordamages resulting from violations of Fourth Amendmentguarant(!es. In addition, manyStates have set up courts ofclaims or other procedures sothat an individual can as a matterof state law obtain redress for awrongful violation of a constitutional right through the statemechanism."

The availability of other means ofdeterring police misconduct and thedeficiencies of the exclusionary ruleprovide substantial support for theproposition that the rule should eitherbe abolished or modified.

In order to promote neededchange as soon as possible, theAdministration has at this time proposed only modification of theexclusionary rule_

Although the modifications we seekwould have a positive effect on ourcriminal justice system, they are notrevolutionary. We have not proposedabolition of the exclusionary rule. Ourproposal would govern only federalcourts. The proposed legislation wouldeliminate the rule-and its absurdconsequence of releasing theguilty-<mly in those circumstances inwhich the rule could not possibly haveits intended deterrent effects. Ourlegislative proposal would create areasonable good faith exception to theexclusionary rule and would allow theadmission of evidence whenever anofficer either obtains a warrant or conducts a search or seizure without awarrant but with a reasonable, goodfaith belief that he was acting in accordance with the fourth amendment.

This modification would avoid therelease of criminals when an officercommits at most a technical violationthat he reasonably could not be expected to have avoided. The effect ofthe rule on our criminal justicesystem-and the pUblic's perceptionof that system-is so substantial that Icannot understand why any reasonable person would oppose our modification. It would retain the putativedeterrent value of the rule-if anyexists-but would allow a greaternumber of guilty individuals to be sentwhere they clearly belong-to jailwhen no deterrent value could beserved.

As a result of the 1980 decision ofthe Fifth Circuit in United States v.Williams, the approach we aresuggesting is already the law in theFifth and Eleventh Circuits. It is nowtime for Congress to make thisreasonable modification applicable inall federal courts. Clearly, Congress

has the power to act in this way. As theSupreme Court itself stated in Wolf v.Colorado:

"The Federal Exclusionary Ruleis not a command of the fourthamendment but is a judiciallycreated rule of evidence whichCongress might negate."

It is time for Congress at least tomodify this rule and to bring a newdegree of reason to the federal criminal justice system. We have beenhandicapped in the fight against crimefor too long by the most stringent formof the exclusionary rule.

As the Attorney General's TaskForce on Violent Crime-<:haired byformer Attorney General Griffin Belland Governor Jim Thompson ofIllinois-<:onciuded in 1981:

"In general, evidence shouldnot be excluded from a criminalproceeding if it has been obtained by an officer acting in thereasonable, good faith belief thatit was in conformity to the FourthAmendment to the Constitution... If this rule can be established, it will restore the confidence of the public and of lawenforcement officers in the integrity of criminal proceedings andthe value of constitutionalguarantees."

As Justice White once observed, theexclusionary rule is "a senseless obstacle to aiming at the truth in manycriminal trials." It is time to eliminate atleast the most clearly senseless features of the exclusionary rule. Thetime for reasonable change has notonly arrived. It is also long overdue.

The modifications in the exclusionary rule that I have advancedtoday are one part of a comprehensiveeffort by this Administration to redressimbalance that has arisen in recentdecades between the forces of lawand the forces of lawlessness. Crimeis out of control in America. In the lastdecade alone, violent crime jumpednearly sixty percent. Last year, one outof every three households in this country was victimized by some form ofcrime. The proposals we havemade-like modification of theexclusionary rule-would, whenadded together, greatly strengthen theability of government to protect the lawabiding-without impairing our Constitutional liberties. '--...

July 1983/Arkansas Lawyer/lIS

EXECUTIVE COUNCIL NOTESBy Annabelle ClintonSecretary-Treasurer \....

Minutes Of The Arkansas Bar AssociationHouse Of Delegates Mid-Year Meeting

January 15, 1983On Saturday, January 15, 1983, the

Arkansas Bar Association's House ofDelegates gathered for its mid-yearmeeting.

President Jim Shaver, Jr., in hisPresident's report, noted that theLegal Services Corporation fundingwill be continued at the present level.Future recommendations for LSC include paying private attorneys for civilindigent cases.

Former Arkansas Supreme CourtJustice John Fogleman told the Housethat a project to provide MinimumStandards for the Administration ofCriminal Justice is nearing completion.Part of the effort is to conduct workshops which will be funded by theArkansas Bar Foundation.

President Shaver announced theappointment of Walter Niblock asChairman for the annual meeting to beheld in Hot Springs June 8-11, 1983.The seminar will feature six wellknown panelists who will present the"Anatomy of a Tort Trial". Melvin Bellihas been invited to speak at the seminar.

The next item presented to theHouse was an update on the ArkansasPlan of Specialization. Under the Planof Specialization, the Arkansas Supreme Court is to appoint a Commission on Specialization. Col. Ransick,Executive Director for the ArkansasBar Association, told the House thatthe commission would be appointed inthe near future.

On December 13, 1982, a petitionwas submitted to the Supreme Courtby the Association regarding intereston lawyers trust accounts. The planwould permit interest on nominal trustfunds held for a short period of time tobe used "for legal aid to the indigent incivil cases, to provide student loans116/Arkansas Lawyer/July 1983

and scholarships, to improve theadministration of justice and for otherpurposes as approved by the Courtfrom time to time:' The SupremeCourt by per curiam order set a deadline of March 1, 1983 for the filing ofamicus briefs. The House approved aproposal to pay for the preparationand filing of a brief in the SupremeCourt on this matter.

Mr. Herschel Friday then gave areport on items to be addressed by theAmerican Bar Association's House ofDelegates Meeting in New Orieans inearly February. He noted that shortlyafter the upcoming meeting the ModelRules of Professional Conduct shouldbe approved. Under standards forcriminal justice there is a proposal thatthe insanity plea be changed to one ofno responsibility. Federal legislation inthe area of product liability law is beinghotly debated. The American BarAssociation has endorsed gun controlmeasures.

Mr. Frank C. Elcan, II, Chairman ofthe Young Lawyers Section to theHouse of Delegates, presented a probono plan for representation of thelow-income elderly in Arkansas. TheHouse unanimously voted to approvethe proposed plan.

Mr. Elcan reviewed the Disaster Relief Plan which was activated in December. The Young Lawyers Sectionof the Arkansas Bar Association hashistorically offered aid to Arkansascitizens in times of natural catastrophic events. Mr. Elcan reported thatthe volunteer young lawyers workedwell with the agency in collectinginformation to assist flood victims. Fifteen non-fee generating cases havebeen referred to the Young LawyersCommittee.

On March 25 and 26, 1983 in Hot

Springs the Young Lawyers Sectionwill host an American Bar AssociationYoung Lawyers Division Affiliate Outreach Program. A team of directorsfrom the Young Lawyers Division inthe ABA will attend the meeting to trainyoung lawyers from Mississippi, Tennessee, Louisiana, Oklahoma, Texasand Arkansas in public service techniques. Another highlight will be a trialpractice seminar session from 9:00a.m. to noon on Saturday, March 26.

Mr. Frank Mackey, Jr., Chairman ofthe Committee on Professional Ethics& Grievances, will report to the Houseof Delegates at its annual meeting inJune on the establishment of a procedure to give advisory ethics opinions.The American Bar Association presently provides such advisory opinions.

Mr. Charles Carpenter, Chairman ofthe Committee on Judicial CouncilLiaison, reported that his committee iscurrently working with judges to increase compensation for lawyers whoare appointed to represent criminalindigents.

A report on bar discipline was presented to the House by Mr. John Gilland Mr. Ralph Claar. The proposedrules and petition to the Arkansas Supreme Court will be submitted to theHouse of Delegates at the annualmeeting in June. Some of the highlights of the proposed rules are:Elimination of vague distinctions indiscipline, use of the Arkansas Rulesof Civil Procedure and the UniformRules of Evidence at disciplinary hearings, hearings before a committee onbar discipline instead of before circuitand chancery jUdges (an attorney isstill entitled to de novo appeal to theArkansas Supreme Court), privatehearings unless the attorney requests

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a public hearing, publication of discipline results and notification to clients,courts and other appropriate agencies, and provisions concerning surrender of license, display of license,temporary suspension upon conviction of a serious crime, and inactivestatus for attorneys that are physicallyor functionally disabled.

The House moved to oppose anyencroachment by the FTC into theArkansas Supreme Court's jurisdictionover the regulation of the practice oflaw.

The House considered a proposedconstitutional amendment to providefour-year terms for constitutional officers. After presentation by Mr. JohnClayton, Mr. Jim Rhodes moved thatthe House of Delegates approve aresolution to support the concept offour-year terms. The motion was dulypassed.

After considerable debate, theHouse voted to keep in its legislativepackage a bill that would create divisions of juvenile courts and chancerycourts and also to include the followingproposed constitutional amendment:

The General Assembly is herebyempowered to create and establishJuvenile Courts, to define the jurisdiction of Juvenile Courts, and toinclude within the Juvenile Courtsthose matters relating to bastardyand apprenticeship of minors overwhich jurisdiction Is now vested inthe County Courts.

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This amendment shall not supersede any valid statutory provisionsestablishing procedures for adjudication, disposition and review ofjuvenile cases, and such existentprocedures shall continue in fullforce and affect until superseded bylegislation enacted pursuant to thisamendment.

In other Legislative matters theHouse voted to approve amendmentsto the Model Timeshare Act whichhave been suggested by the AttorneyGeneral's Office. The House was informed that the amendments primarilystrengthened consumer protection. Italso voted to adopt HB-30, a provision

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that would allow a one-year period forrefiling after non-suit in product liabilityor medical malpractice actions. TheHouse voted to oppose the followingbills: HB-108 which sets dower andcurtesy interests of one-half instead ofone-third; and HB-139 which increases from $15,000 to $40,000 thevalue of a probate estate which maybe distributed without appointment ofa personal representative.

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If your computsr system has only the texi 01the court opinion. things gel morecomplicated. The disposition might beslated near the beginning althe cese ... inthe middle of the case ... or at the end ofthe case. Wherever it Is, you'll have to readthe case tlU you find II. 01 course, you willincur the extra lime charges. Thai's a lot ofwork and money spent lor a simple, vitalpiece 01 Information.

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ANATOMY OF THE TORT T"THE EXPERTS WILL BE I

85THANNUALMEETINGJUNE 8-11, 1983ARLINGTON HOTELHOT SPRINGS, ARKANSASARKANSAS BAR ASSOCIATION118/Arkansas Lawyer/July 1983

"Our Annual Meetingpromises to be the verybest-professionallyandsocially. Plan to be with us. "J. L. (Jim) Shaver, Jr.Association President

-WALTER R. NIBLOCKCHAIRMANANNUAL MEETING

IALARKANSAS"

J. L. (JIM) SHAVER. JR.


BANKING LAW RETURNSTO THE CLE LINEUP

"BANKING LAW IN THE 80's-ASEMINAR FOR LAWYERS ANDBANKERS, was presented February18, 1983, at the Excelsior Hotel inLittle Rock. The program, jointly sponsored with the Banking Law Committee of the Arkansas Bar Association, was chaired by Chris Barrier ofLittle Rock, and was enthusiasticallyreceived by 150 lawyers and bankersin attendance. The following topicswere presented by combinations oflawyers, lawyer-bankers, and bankersin small panels: structure intransition-branching, holding companies and acquisitions with JohnSelig, Esq. as panel leader with Barnett Grace and James H. Penick, III aspanelists; product development,ARMs, investor accounts and futureprospects with H. Hall McAdams III aspanel leader and Thomas A. Princeand Bobby Shepherd as panelists;learning to live with bankruptcy withIsaac A. Scott as panel leader with JimGuy Tucker and James E. Smith, Jr.as panelists; and interest rateregulation-Amendment 60 with JimGuy Tucker and Pat Koch aspanelists. The luncheon speaker, Dr.Robert L. Qualls, Executive VicePresident of Worthen Bank and TrustCompany and former director of theDepartment of Finance and Administration under the first administration ofGovernor Bill Clinton, spoke on thetopic "Peering into the Future." TheBanking Law Committee was prompted to cosponsor this program due tothe substantial changes which haveoccurred in the banking industry notonly in the areas of regulation of interest rates but also by considerationsof branching and holding company activities, new types of accounts and theupsurge of individual and corporatebankruptcies. The theme of this pro120/Arkansas Lawyer/July 1983

AICLE NEWSby Claibourne W. Patty, Jr.

Executive DirectorArkansas Institute of

Continuing Legal Education

gram as it was two years ago was"Lawyersl Bring Your Banker-Clients!Bankers: Bring Your Lawyers-andTell Them What You Need to Know!!"This admonition was obviously takenseriously since those in attendancewere about equally divided betweenlawyers and bankers. It is contemplated that the Banking LawCommittee will seriously considermaking this an annual program in thefuture due to the enthusiastic response received.

200 ATIEND 1983 FEDERAL CIVILPRACTICE SEMINAR

The Second Federal Civil PracticeSeminar, cosponsored with the Arkansas Federal Practice Committeesof the Eastern and Western Districts ofArkansas was presented March 17,1983, at the Excelsior Hotel, LittleRock. The program, cochaired by BillWilson of Little Rock and LeRoy Autrey of Texarkana, focused on a moreindepth and technical discussion thanthe previous seminar on the followingtopics: pretrial conference, pretrialprocedure, motion practice by a panelconsisting of Hon, Franklin Waters,Hon, Henry Woods, Jerry L. Canfield,Esq. and H. David Blair, Esq.; attorneys' fees by a panel consisting ofHon. Richard S, Arnold, Hon. WilliamR, Overton, Terry R. Kirkpatrick, Esq.and Philip E. Kaplan, Esq.; lawyers'concern with federal court proceduresand system by William R. Wilson, Jr.,Esq. and Dennis L. Shackleford, Esq.with the response by Hon. Jay SmithHenley and Han, G. Thomas Eisele.As was the case of last year's seminarthe highlight of this occasion was theafternoon panel with all federal judgesin attendance participating. JudgesOren Harris, Elsijane Roy and GeorgeHoward gave a four or five minuteopening on their views of the state ofpractice in their courts, since they had

/

not been able to participate during themorning session, and then the floorwas open for questions from thelawyer participants on all topics pertaining to federal civil practice in Arkansas. Since this program was aswell received as the previous seminarit is expected that a similar type ofprogram will be held early in 1984.

YLS "Racetrack Special"REPEATS AT HOT SPRINGS

By popular demand the Young Lawyers Section has cosponsored theSecond Annual Spring Trial PracticeSeminar with an expanded two onehalf day sessions. Ninety-one registrants attended this program on March25-26, 1983, at the Ramada Inn, HotSprings, Arkansas. Harry TrumanMoore, program chairman, divided theprogram into two sessions: on Fridaymorning there was a presentation bythe American Bar Association/YoungLawyers Division Affiliate OutreachProject Visitation Team which also included a panel discussion on "Projects That Have Worked" in ABA/YLDdistricts 16, 17,20 and 22; and Saturday was devoted to the topic of "Presenting effective Opening Statements" with Fred C. Cornish, Esq. ofTulsa, Oklahoma, appearing for theplaintiff and J, Patrick Cremin, Esq, ofTulsa, Oklahoma, appearing for thedefendant. There was also a "bonus"presentation on witness preparationtechniques. The program adjourned atnoon each day so that the participantscould adjourn to the Oaklawn Racetrack highlighted by a special race onFriday afternoon which was designated the "American Bar Association-Young Lawyers Division"Race with a special trophy presentation being made by representatives of the ABA/YLD through the Oaklawn Jockey Club to the winningtrainer and owner.

HANDWRITING EXPERTScientific examination of Handwritten, Typewritten, Printed, Altered,Obliterated. Charred and Office Copier Documents; Ink and PaperAnalysis, Dating and other document related problems. Diplomate ofthe American Board of Forensic Document Examiners. Inc. Member ofthe American Society of Questioned Document Examiners and theAmerican Academy of Forensic Sciences.

RECORD ATIENDANCE ATSIXTH ANNUALLABOR LAW INSTITUTE

The 1983 Labor Law Institute, jointlysponsored with the Labor Law Sectionof the Arkansas Bar Association, theNational Labor Relations Board, theIndustrial Research and ExtensionCenter of UALR, and the AmericanArbitration Association, was conducted March 25-26, 1983, at DeGrayLodge, Arkadelphia. This year's institute, like those held previously, wasconducted on a workshop formatwhich has proved to be so successfulin the past. The 141 registrants wereequally distributed among attorneysspecializing in various areas of laborlaw, personnel managers, and business agents and officers of local laborunions. The program concentrated onsuch diverse topics as analysis of current issues on comparable worth;LMSA and reporting requirements;development of the affirmative actionplan-analyzing the work force andestablishing an information system;recent developments in the EighthCircuit Court of Appeals on labor andemployment discrimination law;analysis of current topics under theNLRA; practical arbitration; privacy inthe work place-lie detectors,searches, access to confidential information, Anti-Retaliation Laws; access to affirmative action plans andinformation-discovery and disclosureand survey of recent developments inemployment discrimination.

With the exception of the first topicon the Eighth Circuit Court of Appealspresented by the Hon. Richard S. Arnold, the remaining topics were presented in the format of a workshopwith one or two Presentations-in-Chiefpresided over by a moderator with aresponse by one or two practicingattorneys, followed by questions andcomments from those in attendance.The overall purpose of this institute, aspresented by its cosponsors, is to expose registrants to all sides of theissues developed in the workshopsand to not merely present a "promanagement", "prounion" or "proclaimant" bias.

Office-A Team approach, AnnualTax Awareness Institute, the FederalCourt Orientation program cosponsored with the Arkansas WomenLawyers Association will have alreadybeen presented and will be reportedon in a later article.

A second satellite TV program willbe cosponsored with the PracticingLaw Institute on June 28th at Conway,Arkansas, ETV stUdios concerning thetopic "Doing Business with TroubledCompanies". This program is designed to advise legal practitioners,house counsel, credit managers andaccountants about the problems andpitfalls of doing business with the corporate candidate for Chapter 11 or theChapter 11 debtor and how to avoidthose pitfalls to the extent possible.This program is not designed for thebankruptcy specialist, but rather forthe trade creditor or advisor to thetrade creditor with occasional contactswith the bankruptcy system. The general topics will include the following:structuring prepetition credit transactions: pros and cons of participatingin attempted out of court restructuring;considerations in filing an involuntarybankruptcy petition; use of extraordinary remedies to recover prepetition debt after filing; protecting rightswith respect to the executory contract;extending credit to the debtor in possession; should you serve on the creditors committee?; litigating with thetrustee or debtor in possession afterMarathon and a review of individualcreditor's rights in Chapter 11.

Also by popular demand we arebringing back Robert Wilkins, the original author of the handbook "DraftingWills and Trusts-A System Approach" who will be in Little Rock at

the Camelot on September 16, 1983.Please mark your calendars and further details will be mailed to you..........

Cover Story. ..

"REVOLUTION 1""In Revolution 1 it was my desire to

express the energy and courage ittook for men to begin a struggle forfreedom that still rages on through outthe world. I tried to communicate theidea that even though these great mengave us a system of government thatallows us to do battle for our rightswithout bloodshed the desire for libertyis so deeply embedded in the American character that if government triedto restrict our freedom there would bea Revolution 2."

-Artist Lawrence Burchard

The art work is a watercolor/triptychfrom West '79/The Law-an exhibitionof contemporary art reflecting aspectsof law, sponsored by West PUblishingCompany in cooperation with the Minnesota Museum of Art. We are indebted to the author and West Publishing Company for permission to use"Revolution 1" on the cover of the1983 July issue of The ArkansasLawyer. Artist Burchard lives in LosAngeles. He has received numerousart awards and has participated inmany "one person" and "group"

shows. '"

PROGRAMS IN PROGRESSBy the time you receive this issue of

The Arkansas Lawyer the programson the topics of Automating the Law

ROBERT G. FOLEY, M.S.FORENSIC DOCUMENT EXAMINER

3059 NORTH BOULEVARDBATON ROUGE, LOUISIANA 70806

504-343-7435Qualified and Experienced Expert Witness in Federal,

State, Municipal and Military Courts.


Second Injury Law,

OLD AND NEWPart 11/

SECOND INJURY LAWYET TO COME

by W. W. Bassett, Jr.

(Editor's Note: This article is the finalof the three-part series on SecondInjury Law taken from the keynotespeech by W. W. Bassett, Jr. of Fayetteville, during the 1982 Worker'sCompensation Institute. Part I andPart /I appeared in the January 1983and April 1983 issues of The Arkansas Lawyer, respectively.)

This brings us then to the third andfinal phase of Second Injury Law, thatbeing the Second Injury Law Yet ToCome.

I have characterized this part of thetalk as the Second Injury Law Yet ToCome because very few cases interpreting the 1979 or 1981 Amendmenthave yet reached the administrativeprocess much less the Court of Appeals or Supreme Court. As we allknow, the Legislature first enacted Act253 of 1979 which applies only to allcases between January 1st, 1981 andMarch 1st, 1981.

It appears to me that the languagein the amendments reveal theiravowed purpose.

The first paragraph is introductory innature only but gives us insight intothe probable legislative intent of theframers of the Act. The significance ofthis Section is that it makes it clear thatthe purpose of the Fund is to protectnot only the claimant but the employeras well. The Act specifically states theemployee is to be fully protected withthe fund paying the difference between the employer's liability and thebalance of disability or impairmentwhich results from all disabilities combined. The Statute points out that theworker is to be fully protected.122/Arkansas Lawyer/July 1983

Another important factor about theintroductory paragraph is that for thefirst time, there is a distinction between the words of art "disability" and"impairment". In the past, when theword "disability" was used by theCommission, the Courts or for thatmatter the Legislature, there alwaysarose some confusion as to whethertheir use of this word was "all disabilities and conditions" or whether thedeclarant was really referring to"impairment" only. By use of the word"disability" or "impairment" throughout the entire text of the new law, theFramers of the Act seem to emphasizethat the concepts of "disability" and"impairment" are separate and distinctand should be treated as such. Youshould also particularly note that latent conditions, not known to theemployee or employer may not beconsidered previous disabilities orimpairments which will trigger or giverise to a claim against the Fund.

Now, keep in mind that the 1979 Actwas in effect for approximately 60days. Most probably, there were several hundred injuries occurring duringthis period of time and perhaps only afew will ultimately involve the application of the Second Injury Fund.

In my opinion, the 1981 Act was anattempt by the Legislature to clear upsome of the ambiguities that wereraised between when the 1979 Actwas first written and when it was to gointo effect. The actual new, sweeping,revolutionary legislation was contained in the 1979 Act. All the 1981 Actdid was merely "track" the 1979 Actwith only minimal changes but, thesechanges were indeed significant. We

have already mentioned one such significant change and that is the use ofthe words "impairment" after the worddisability. The significance of addingthe word "impairment" is that this addition clearly limits the liability of a second employer to merely the impairment (not disability) as a result of thesecond injury.

Let's say our Pal Harry had an injuryin 1971 and received a 10% functionalassessment and then had a second orsubsequent injury in 1981 for which hereceived an additional permanent disability of 10%. Very simply, Harry's1971 injury is added to his 1981 injuryand he is determined to have a combined disability. However, the combination of these two disabilities (andafter all this is the underlying reasonfor the Second Injury Concept at all) isin excess of what the functional oranatomical disability would be. Verysimply, 10 and 10 equal 20 from an"impairment" or anatomical standpointbut 10 and 10 do not equal 20 from a"Disability" or a loss of earning capacity standpoint. Harry's permanentdisability (not impairment now) couldbe, say, 80% to the body when loss ofearning capacity is considered.

Under the new Law, the employer atthe time of the second injury paysonly for the "anatomical impairment" as a result of that injury andthe second injury fund pays for anyincrease in "disability". Under the1979 Act, it was indeed unclear as tohow much disability the secondemployer was obligated to pay. Again,the effect of the 1981 Amendment issubstantial. Now I should add thatunder the old Law, Harry's claim was

governed by Sec. 81-1313(f){1) andsince the new 1979 and 1981Amendments to the Act seemingly didnot repeal the existing case law whichhad developed under the old Law, butonly supplemented the existing caselaw, there may be a conflict betweenthe provisions of (1)(1), the old Law,and (i), the new Law.

For what it's worth, I am proceedingon the premise that the new Law isapplicable to (as the Statute seems tosay) all cases of permanent disabilityor impairment when there has beenprevious disability or impairment.However, there are those who feel thatnew Section (i) applies only toscheduled cases or really that it isnothing more than an attempt to rewrite the old Section (f){ili). Like I said,I don't agree with that theory but thereare those I respect who do so. Whoknows at this time what will happen? Idon't.

If you remember "old" (f){1) appliesto employees who receive a permanent injury after having previously sustained another permanent injury in theemploy of the same employer.Friend Harry fits under old (f){1), butalso fits under new (i). Old (f){1) indicates that Harry was to be paid for hishealing period and permanent DISABILITY by extending the period andnot by increasing the weekly amount.Harry then under old (f){1) would bepaid only for the additional permanentDISABILITY and no additional moneyfrom The Second Injury Fund. Remember, he received a 10% functional or anatomical impairment as aresult of a 1981 injury but he has anultimate, overall disability of, let's say,80%. Does Harry then receive only10% from his employer for his functional or anatomical disability resultingfrom the 1981 injury per the new Law,(i), or does he receive the 80% figurewhich is his ultimate disability underthe old Law (f){1)? Well, I don't knowbut I think that there may very well bea conflict at least as far as the Fund isconcerned because quite frankly (f){1)was never repealed and there appearsto be a conflict between this "old"Section and the "new" Section.

Are there other conflicts other thanthis? I think so, and let's see what youthink. What happens say if Harry'sinjuries as a result of the 1971 accident and the 1981 accident render himpermanently and totally disabled eventhough each injury resulted in only10% permanent impairment. That is,a 10% functional impairment in 1971

plus a 10% functional impairment in1981 which of course combined totals20%, but with proof of wage loss,Harry is permanently and totally disabled-(there's that word again!)and will never under the new Law (i)be gainfully employed. We know thatthe employer pays the 10% functionalimpairment and The Second InjuryFund pays the balance. The problemis what balance does the Second Injury Fund pay. The latest injury comesunder the new Law and if he wereinjured on today's date, he would beentitled to a compensation rate of$154.00 per week. Harry comes within81-1310(B) as a permanent and totaldisability claimant. This Section provides that maximum benefits shall be$154.00 for 450 weeks or $69,300.00.Thus, would Harry be limited in hisaward to only $69,300.00 or may heinvade the disability bank fund afterthe $69,300.00 is paid to him? I don'tknow. The same 81-1310(b) providesthat the maximum limitations of timeand money do not apply in cases ofpermanent and total disability. Harry ispermanently and totally disabled. Idon't think that he has a $69,300.00cap or a 450 week cap, although ofcourse he does have a $154.00 perweek maximum allowance. Under thenew Amendments to the Act 811310(C){1){2), we again find an exception for the maximum amounts involved for claimants who receivepermanent and total disability awards.The new maximum limitation is now$75,000.00 as opposed to the oldmaximum limitation of $50,000.00.The statute reads the first $75,000.00of weekly benefits for death or permanent total disability shall be paid by"THE EMPLOYER OR HIS INSURANCE CARRIER...". After the payment of this $75,000.00, the Deathand Permanent Total Disability BankFund "kicks" in and continues to paythe claimant for an indefinite period.However, my question is this: If thereis a $75,000.00 cap to be paid by theemployer or his insurance carrier,does this likewise apply to paymentsby The Second Injury Fund? Again,let's look at Harry's case. Harry ofcourse in our example is permanentlyand totally disabled. He is drawing$154.00 a week and will for as long ashe lives. The liability of the employer isnot an issue. They merely pay the10% functional impairment or 45weeks at $154.00 and have no furtherfinancial obligation to the claimant.The employer then pays $6,830.00

($154.00 x 45 weeks = $6,830.00).Harry has $68,170.00 or 442.66weeks ($68,170.00 divided by$154.00 = 442.66 weeks) before hemaximizes his $75,000.00 lid. Now, ifyou add the number of weeks theemployer pays to what the fund paysin round figures, you have 487 weeksbefore the claimant is paid the$75,000.00 cap. This sounds like along time but if we assume that Harrywas only 30 years old at the time of hislast injury, then in a little over 9 years,he will be paid $75,000.00. Now, thesignificance of these figures comes tolife when we try to figure out whetherthe Commission and the Courts willtreat this situation as one of permanent and total disability or (as inGreer) one of disability "other thanpermanent and total". Obviously, if thecase is treated as a disability "otherthan permanent and total" in Harry'scase, old Harry will be limited to$69,300.00. If not, and he receivesdisability for as long as he lives fromfirst his employer (remember 10%),The Second Injury Fund (the lid of$69,300.00) and thereafter from theDeath and Permanent Disability BankFund for life or as long as he is totallyand permanently disabled. We have asubstantial difference in the amountthat a particular claimant will be entitled to receive. I submit we are talkingabout serious money and that all ofthese points will be litigated and re-Iitigated. Please observe that for somereason, oversight or maybe on purpose, the Legislature did not changethe $50,000.00 figure in Section 1 toreflect the increased lid of $75,000.00.When you are talking about substantive legislation, $25,000.00 makesone heck of a difference.

The bottom line is that the creativityand room for change in the Statute isgoing to come and must come fromthe claimant's Bar plus whomever willbe representing The Second InjuryFund. The employer and his insurancecarrier basically won't care. Theemployer and the carrier will pay onlythe anatomical impairment that resultsfrom the second injury and go henceleaving the claimant to make his ownway through life with the help of theFund(s), so every1hing eise is going tohave to be figured out by somebodyother than the employer. I don't suggest the employer won't care becausein most cases, he will. Still I submit itwill largely be the burden of others totest and probe the meaning of the newlaw. . d 2continue on page 1 4


Second Injury Law...,continued from page 123

In summing up, you should carefullynote that the first and primary difference between the 1979 Law and the1981 Law is that under the formerthe employer pays for wage lossand under the latter he pays onlyfor the functional impairment. Therule of law and the importance of thechange is that for those cases arisingafter March 1st, 1981, the employerpays no more than the anatomicalimpairment resulting from the injury. Ifthe claimant is to get any more dough,he must look somewhere other than tohis employer.

Reduced to the basics, the new1981 Law does two things. First, itlimits the liability of the employer toonly that degree or percentage of anatomical impairment resulting from theinjury which occurred in theemployer's employment and, second,after the last employer's liability is determined, the Commission then determines the degree or percentage ofthe employee's disability attributableto all injuries or conditions whichexisted at the time of the last injuryand then that degree or percentagewhich did exist before the last injury isadded to the disability or impairmentresulting from the combined disability and compensation for whatever that balance adds up to is paid byThe Second Injury Fund.

The new amendments also spawnadditional questions, some of whichare known, and others which are totally unforeseeable at the presenttime. For instance, Sec. 81-1347 ofthe Act, a brand new provision, itselfcontains enough legal fodder to boggle the mind as far as inducing futurelitigation.

Ark. Stat. Ann. 81-1347 is entirelynew legislation and is divided into twoseparate provisions. It provides that ifat any time before July 1st, 1983, thebalance in The Second Injury Fund isinsufficient to fully compensate an injured worker such as Greer orChrobak, then, quite simply, don'tworry about it. The legal responsibilityto pay "reverts" to that of "the employer in whose employ the employeesustained the injury which establishedthe liability of The Second InjuryFund".

As an example, in Greer's case itwould be the Chicago Mill & LumberCompany and in Chrobak's case, theHarrison Furniture Company. Wait aminute Mr. Employer says, you124/Arkansas Lawyer/July 1983

haven't given me anything here andyou have in fact saddled me with contingent liability to pay for permanentand total disability despite what thenew Law says. Not so says the Legislature because this "contingent liabilityor reverter responsibility" extends onlyto July 1, 1983. The final provision inSection 81-1347 is quite clear that inno event shall there be any responsibility on the part of the employer pastJuly 1, 1983. If the responsibility forthis contingent liability of the employerends on July 1, 1983, who then will beresponsible after July 1, 1983 if theFund isn't solvent? Simple, the Legislature has said by providing that in theevent of fund insolvency, any paymentdue a claimant will be "suspendeduntil such time as The Second InjuryFund is capable of meeting its obligations". Let's pray that doesn't happenbut I, for one, fear it. It doesn't takemuch intelligence to comprehend thatif the legislature fails to adequatelyfinance The Second Injury Fund, or ifthrough decisions of the administrativeprocess reinforced by the courts, TheSecond Injury Fund is substantiallyinvaded, that serious problems for injured workers in Arkansas lie ahead. Iam reliably informed by a representative of the Attorney General's Officewho represents The Second InjuryFund that there are many, many casesthat they are having to defend and thatin fact by the middle of March of 1982,they had 82 cases and I submit "theyain't seen nothing yet!"

How is the Second Injury Fundjoined as a party? The Commissionadopted Rule 24 on March 1st, 1982,to deal with the procedural steps tofollow to add the Fund as a party and Iurge you to carefully review this Rule.The new Law provides that any partydesiring to bring in the Fund shallname the State Treasurer (the Custodian of the Fund) as a party respondent by notifying The Second Injury Fund Administrator as well as theAttorney General and all other interesting parties no later than 20 days before the date of the first hearing on themerits. The notice should be in writingby certified or registered mail.

If any question remains as to whoshould actually notify The Second Injury Fund Administrator, et ai, I personally think that the far better procedure is to simply request theAdministrative Law Judge in writing tonotify The Second Injury Fund, anddirect and order that it be joined in theclaim as a third-party or co-re-

spondent. The function of the LawJudge in this situation is somewhatsimilar to civil proceedings in CircuitCourt when the Judge grants a motionand signs an order allowing a thirdparty cross-complaint against a 3rdparty who is or may be liable in part orin whole to the plaintiff (claimant) forhis cause of action or claim.

This section also provides that ifThe Second Injury Fund is not giventimely notice and there is adjournmentor postponement of a hearing, theparty at fault may be required to bearcosts and attorney fees. I suggest thatif this occurs, the party may also verywell invoke the wrath of the Administrative Law Judge as well as all opposing counsel and parties and that thismay actually be the "real cost" offailing to give notice. The Commissionand its Judges may well be found tohave substantial discretion as towhether in a given case the hearingshould be postponed or whether theparty or parties have waived their rightto have the Fund joined as a co-respondent by failing to give timelynotice.

Obviously, it remains to be seen if aparty can actually waive the joining orapplication of the Fund. Frankly, I seeno real reason why a reviewing courtin the proper case would not find thatthere has been waiver, when with theexercise of due care and diligence, theparty could have given timely noticeand had the fund joined, but failed todo so.

Once again, let me remind you thatwhat I have to say today consists ofthe thoughts, ideas, impressions andwhat-have-you of many persons directly involved, one way or the other,with Workers Compensation Laws andCases in Arkansas. Our opinions maybe right; they may be wrong. Time willtell. But that really isn't important, atleast to me. My sale purpose in agreeing to talk was to throw out someideas, which might in turn, persuadeyou to read the New Law yourself andarrive at your own independent opinions. If this talk has helped do that,then perhaps it was worth it.

EPILOGUEThis article was originally prepared

as a speech for the 1982 Workers'Compensation Institute of the Arkansas Bar Association. SUbsequently, itwas substantially revised and editedprior to publication.

SUbsequent to that time, and at thiswriting, the author is unaware of anyappellate decisions in either the Court

ContinuingLegal Education

JUNE OCTOBER8-11th 13-14th

of Appeals or the Supreme Courtinvolving significant Second InjuryFund issues.

However, there have been severalopinions of Law Judges and the FullCommission which are worthy of note.They are:

(1) Robert Stiers V. J. C. PenneyCompany, Second Injury FundEt AI, WCC Nos. 0009335 and0113513. This was a decision byLaw Judge Tolley of the Springdale Division of the Commission.Primarily the issue is whether theLaw Judge erred in allowingwage loss disability for a scheduled injury in a Second InjuryFund case which involved a priorinjury to the body as a whole andsecondarily, whether the Fundwas properly made a party to theproceedings pursuant to Rule 24of the Rules of the Commission.At this writing, this case is on appeal to the Full Commission;

(2) Henry E. Isbell V. ArkansasHighway & TransportationDept., Et AI, WCC No.0100836. This case involves anopinion by Law Judge Greenbaum who held that the burdenof joining the Second Injury Fundwas on the employer. This case,too, is presently on appeal to theFull Commission;

(3) Harry Scott V. ArkansasTransit Company, Et AI, WCCNo. 0105281. This case wasdecided by Law Judge Tolley.The Judge held that the claimantand the insurance carrier hadthe right to joint petition a claimpursuant to Sec. 19(1) of the Actand at the same time reserve theclaimant's right to proceedagainst the Second Injury Fundat a later or subsequent date.Likewise, the case involves substantive provisions of Ark.Stats. Ann. 81-1313(i) (Act 290of 1981) pertaining to theamount of liability attributable tothe Fund in that particular factualsituation. This case is presentlyon appeal to the Full Commission and will probably go beyondthat;

(4) Bill Crace V. Dillard's Department Stores, Inc., Et AI,WCC No. 0105609. This isadecis ion of the Full Commissionwhich was not appealed to theArkansas Court of Appeals. Inthis case, the Commission heldthat the pre-existing disability

giving rise to Second Injury Fundliability must have been a "disability in the compensationsense" prior to the last injury;

(5) Danny Stalnaker V. WindowInstallers Service, Inc., Et AI,WCC No. 0103961. This is alsoa decision of the Full Commission which is final since it was notappealed to the Arkansas Courtof Appeals. The Commissionheld that the Second Injury Fundwas not responsible for vocational rehabilitation.

85th Annual Meeting "Anatomyof a Tort Trial" - Arlington Hotel,Hot Springs

28th"Doing Business with TroubledCom pan ies" - Sponsored byAICLE and ABA, Little Rock

AUGUST26th

Health Law Seminar - Sponsoredby Health Law Committee andAICLE, Little Rock

SEPTEMBER8-9th

Fall Legal Institute - Sponsoredby ABA and AICLE, FayettevilleHilton, Fayetteville

16th"Drafting Wills and Trusts - ASystems Approach" - Sponsoredby AICLE and ABA, Little Rock

Practitioners are urged to make theirown independent investigation andevaluation of these decisions andothers which may be of record by thetime this epilogue is published.

Again, the author gratefully acknowledges the help and assistance ofthe Members of the Commission, itsLaw Judges, David S. Mitchell of theAttorney General's Office, and ZanDavis of the Whetstone Firm withoutwhose help, this Epilogue could nothave been prepared. '"

Practice Skills Seminar - Sponsored by Young Lawyers Sectionand AICLE, Little Rock

13-14thAgriculture Law Seminar Sponsored by the U of A FayettevilleLaw School

DECEMBERI-2nd

22nd Annual Federal TaxInstitute - Sponsored by ASCPAand AICLE, Little Rock


LEGAL ECONOMICSBy: Kline D. Strong

CPA, JD, PhD

The First Mistake Most Lawyers Make LookingFor Computers

The first mistake is to go looking forcomputers! Sound silly... or redundant? Sure it is but that's still the firstmistake and it breeds shock waves ofsecondary mistakes as you will qUicklysee.

It's as much a mistake to look firstfor a computer as it would be for afarmer to go looking first at cars whenwhat he really needs is a pickup.

Need is the first consideration and,indeed, the computer itself is-forreasons to be listed-<lne of the lastpriorities. Why buy a barrel stave toswat a fly or a power mop to clean ashtrays!

If need is first and the computer last,then what is second, third, and soforth? Software is second... andthird... and everything in between,because software puts the enginethe computer in this analogy-intogear and on the right course at theright speed. Software-not hardware-satisfies need and this, then, isthe total solution.

Why Hardware is Not FirstAlthough hardware technology can

still be improved and further miniturized and sped up, the functionsperformable on 'good' hardware arenow so adequate and satisfactory thatthese aspects of choice are virtuallyworry-free. That's not to say that a'lemon' cannot be encountered northat sensible configuration rules, suchas having a 10-key pad if the computeris to be used for data processing, canlightly be disregarded-<lnly that mostpresent vendors with good track records for reliable equipment and service can usually provide these physical requirements rather faultlessly.126/Arkansas Lawyer/July 1983

The Elements ofDetermining Needs

In a big firm, this determination ofneed can get 'real hairy' because theinteracting variables to consider arean exponential function of the numberof bodies around, to say nothing ofegos, staff problems and potentialpersonality conflicts. Thus, if the complexity of decision making for onelawyer is 1, the complexity for twolawyers is 4... for three, 9... and soforth. But for twenty-five lawyers, thecomplexity factor is 625! Incidentally,that is why large firms still use consultants-informal 'referees' in manycases-and RFP's, an abbreviationwhich literally stands for "Request forProposal" but really means "here areour numerous needs, give us a proposal to solve our problems."

So, unless the smaller firm reallywants to hire a consultant at $50-100per hour or wants to fill out a fullblown, large-firm RFP to obtain bidsfrom 3 or 4 competing vendors-eitheror both of which may be highlydesirable-it must look for quick andaccurate ways which are already developed to assess need. Happily,need for smaller law firms has exhaustively been investigated and sensible parameters have been established, of which the following abbreviated list contains the most essential and typical of the concerns to beconsidered.

1. Word or Data Processing... orBoth.

Microcomputers (herein sometimes 'micros') can be run as wordprocessors during business hourswhile-literally at the swapping of a

floppy disk-they can be run asdata processors after hours... orduring hours for that mailer.Again, the hardware is usually notthe problem-though as the definitive research checklist shows,some hardware is less flexible thanother hardware-the real problemis the software. And with respectto software, the usual problem isnot the word processing programbut the data processing program.

2. Full Screen, Window or BlindManipulation.

The first rule is, 'if it ain't broke,don't. fix it.' In other words, don'tthrowaway anything that works,not even 'blind' word processorsi.e. mag cards, without windows orscreens-if they can continue topump out 'boilerplate-type' documentation which does not requiresignificant editing or manipulation.

The second rule is, 'if text manipulation of any significant kind orextent is necessary-<lr if any dataprocessing is involved'-get atleast a standard 24 line by 80 column screen. Anything less will bedisappointing and anything largermay be profligate.

Again, your need is all thatcounts, not what the vendor has tosell.

3. Capacity of Internal and ExternalMemory.

This is usually the crucial factor.For any adequate word processingmanipulation, 64 Kbytes--64,000lellers, numbers, etc.-<>f internalor 'resident' memory is essential.However, this does not usuallypresent a problem.

The critical problem involves external memory, i.e. floppy disk orarchive memory, which, for efficientprocessing purposes must be 'online' while the program is running. For word processing purposes, this is, again, usually available with few problems, but for dataprocessing, it is frequently the Archilies heel!

So what are the expected needsof various sizes of law offices for'on-line' external storage of data?Table I is a quick overview for afUlly-integrated data processingprogram-one that handles both'time/account/billing' functions aswell as the regular accountingbooks of the office including financial statements, aging of accounts

receivable and lawyer productivityreports.

And why are these measurements critical? Because very few5" floppy disk drives can handle thedata needs of a fUlly-integrateddata processing program withoutexcessive and very inefficient 'diskswapping.' Furthermore, evenmany 8" floppy drive systemshandle such data processingrequirements badly because either(1) the disks each have low capacity (e.g. neither double sided nordouble density) or (2) there are notenough disk drives available wheredata can be accessed as neededsimultaneously.

So, to illustrate, if a 3-lawyeroffice expecting to grow to 5 or 7 in

the next few years were to choosea barely adequate system now, itwould assuredly regret that choiceshortly as either clients or timekeepers increased in number orservice demands.

Because of space limitations, thethird element of the trilogy of 'Need,Software & Hardware' will be discussed in the next issue. Entitled"Software, the Solution to Lawyers'Needs", this last element is crucial.Meanwhile, readers who want references to ABA Economics Section monographs or other sourcesof relevant help from which extractshave been summarized above maywrite to the author at 1039 VistaView Drive, Salt Lake City, Utah84108. Please enclose a stampedand self-addressed envelope.

TABLE 1: DATA PROCESSING DISK STORAGE REQUIREMENTS BY SIZE OF LAW OFFICE

Based upon the following presumed averages: (1) 100 active clients per lawyer; (2) 2 active legal matters per client;(3) 45 days of unbilled data--<:alled work in process or W/P; (4) 50 bills mailed per month, and (5) 3-month collectioncycle. (All data shown in Kbytes.)

Realistic Needs per size of law office

Solo 2-5 6-10 11-15 16-20Irreducible 5 ace-Programs Kb es

Micro operating systemincluding routines forlanguage, forms, backupand other utililies 100-125

Applications program for"lime/accounting billing"only 135-200

I. 'Program' requirements 235-325 325 325 325 325 350

21-25

350

Time/Accounting and Billing-DataTimekeeper, client and manerTIme records, advances for clients-unbilled I.e. W P

Billings mailed but unpaidso-called 'accounts receivable'

Practice specialties, standard rates,billing phrases and other utilityfunctions and reports

II. Total per timekeeper

Totals of I & IIComplete Accounting-DataGeneral ledger, financial statements,management reports and journals

Space requirements for total package

115

68

77

40

300 600-1500 1800-3000 3300-4500 4800-6000 6300-7500

625 925-1825 2125-3325 3625-4825 5150-6350 6650-7850

100 100 100 125 125 150

725 1025-1925 2225-3425 3750-4950 5275-6475 6800-8000


office

Methods And MeansBy: Bernard Sternin

A Method For Overlap SearchThis article will describe an indexing

system that will help you to search forand locate many items qUickly andeasily. I developed it initially to helplocate anyone of the several hundredprerecorded letters and legal documents we had stored for our automatictyping equipment. But in time we extended it to take in other jobs, such asthe storing of names and phone numbers in office directories, for storingand rapidly finding file records of pending cases, and for locating items oflegal research.

The system uses standard sheets of8V2 by 11 inch paper stored in a threering, fourteen inch binder. Becausethe fourteen inch binder is three inches longer than the eleven inchpaper, you can punch each sheet ofpaper 1/3rd of an inch higher than thesheet that comes before it. When youstore the sheets punched this way in afourteen inch three ring binder thebottom of each sheet protrudes 1/3rdof an inch below the sheet that's ontop of it.

This overlap provides an area inwhich you can write or type a one ortwo line descriptive title of what is onthe sheet. You will then be able toscan these titles very rapidly, see whatyou are looking for and zero in on thepage you want in just a few seconds.You will see each title in the context ofwhat comes before it and after it, andthat itself is also very helpful in locating what you want. When you spot thetitle you think you are after, you canturn the sheets that are on top of thesheet you have found and examinethe document in full. The approach weare describing here is sometimes cal128/Arkansas Lawyer/July 1983

led "shingling" by peopie in the printing trades, and that is a good descriptive name for it.

The three inch difference betweenthe eleven inch paper length and thefourteen inch height of the ring binderwill enable you to overlap ten sheets ofpaper without anything sticking out ofthe binder. After you have put tenconsecutive sheets into the binder youthen add a 14 inch tab divider, andbegin another bank of ten sheets.

The system can be numbered veryeasily based on numbers group bytens. Each tab divider indexes tensheets. The first tab divider is numbered 00. The ten sheets that follow itare numbered 00 to 09. The next tabdivider is numbered 10. The tensheets that follow it are numbered 10to 19. The next tab divider is numbered 20. The ten sheets that follow itare numbered 20 to 29, and so on.

In some geographic areas you mayhave difficulty getting a three ring binder in fourteen inch legal size fromyour local stationer. You can order onefrom Circle West Corp., Post OfficeBox 186, Elmont, New York 11003.Write to them for a brochure.

in order to punch the holes correctlyand accurately you should use astandard three hole punch. A standardthree hole punch punches holes thatare four and a quarter inch apart,measured from the center of each holeto the center of the next. However, youcan use a single hole punch if you aimcarefully.

The pattern to follow is shown onthe accompanying page. You punchthe number 0 at both places it appearsfor any sheet that's to be numbered

00,10,20, etc. You punch the number1 at both places it appears for anysheet that is to be numbered 01, 11,21. You punch the number 2 at thethree places it appears for any sheetthat is to be numbered 02, 12, 22, etc.The final number of a two digit numberindicates what printed numeral is to bepunched out. The distance betweenthe top edge of the sheet and thecenter of the first hole is 5/16th of aninch. The distance between eachnumber and the next number is 1/3rdof an inch.

You can either type your materialsdirectly onto the body of the sheets, aswe did with the prerecorded lettersand legal instruments we used withour word processing equipment, oryou can glue any items you want ontothe sheets, as we did with some of thecases we took out of the advancesheets or photocopied from boundvolumes.

If you would like to have severalsamples of these sheets to use as apattern send a self-addressed envelope stamped with postage for twoounces and marked with the title ofthis article to Bernard Sternin, Desk70A, 5 Hawke Lane, Rockville Centre,New York 11570.

This method of indexing stored materials can become an important partof a word processing system usingautomatic typing equipment. If you arenow using any of these machines andwant to have further relevant materialsincluded, indicate what equipment youhave. 8

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I I

The Tax Equity And FiscalResponsibility Act

Of 1982Part II

By Joseph M. Erwinand

Paul J. Nicholson

(Editor's Note: Part I of this article appeared in the April 1983 issue of TheArkansas Lawyer. This series is presented on behalf of/he Taxation, Trustand Estate Planning Section of theArkansas Bar Association.)

The Tax Equity and Fiscal Responsibility Act of 1982 ("TEFRA" or"the '82 Act") was signed by PresidentReagan on September 3, 1982. Itmade changes in a large number ofareas of the tax laws (only a few ofwhich are discussed here) and is supposed to raise the largest amount ofrevenue ever raised by any singleCongressional Act. Many of the provisions of the Internal Revenue Code of1954 ("Code") which were affected byTEFRA were only recently added ormodified by the Economic RecoveryTax Act of 1981 ("ERTA" or "the '81Act"). This is the second of two articlesdescribing the changes wrought byTEFRA.

DEPRECIATIONThe '81 Act changed the tax treat

ment of depreciation drastically. Theold ADR and useful life methods werereplaced with cost recovery schedules("ACRS") which incorporate the 150percent declining balance method witha switch to the straight line method.This schedule was to accelerate in1985 and 1986 to 175 percent and 200percent declining balance methods,respectively.' These 1985 and 1986accelerations were repealed byTEFRA.'130/Arkansas Lawyer/July 1983

LEASINGUnder the '81 Act, qualifying trans

actions were treated as leases for Federaltax purposes allowing the nominallessor to be treated as the owner.These safe-harbor rules allowed thetransfer of the tax benefits of depreciation and investment credit withouthaVing to meet the more stringentrequirements established by case lawand IRS rulings.'

The safe harbor provisions are still ineffect but they have been modified byTEFRA for property placed in serviceor leases entered into after July 1,1982,'" and repealed in their entiretyfor property placed in service after1983.' The areas of change includeterm of the lease, interest rates, use ofdifferent ACRS schedules, limitationson the amount of property under a safeharbor lease by one lessee and limitations on reductions in the lessor's taxliability.'

After the safe-harbor leasing provisions expire December 31, 1983, arelatively new statutory creaturearises, the "finance lease.'" A "financelease" is a non-safe-harbor lease thatwould be a lease within the meaning ofRev. Proc. 75-21, 1975-1C.B.715(which, along with case law continuesto govern leasing transactions generally') except for the fact that there is apurchase option or that the leasedproperty was of "limited use" (a disqualifying faclor for non-safe-harborleases).' The property subject to a finance lease must be new §38 property;the transaction must have economicsubstance independent of tax benefits;the ITC must be spread out over 5years (for property placed in servicebefore October 1, 1985); the lessor

can't reduce his tax liability by morethan 50% (for property placed in service before October 1, 1985, in taxyears beginning on that date or thereafter); carrybacks and carryforwardsare like those of safe-harbor leases;only 40% of the lessee's qualified baseproperty in any calendar year may beunder a finance lease; in computingpercentage depletion, the lessee mustcompute it as if it owned the propertyusing the regular ACRS deductions ineffect at the lime of the lease agreement; and the finance lease rules don'tapply to transactions between relatedparties.'

An exception to the effective date forfinance leases of particular importancein Arkansas applies to new §38 property for farming purposes. Propertyplaced into service after July 1, 1982,may qualify for finance lease treatmentif the cost basis of the leased propertywhen added to the cost basis of allother farm property subject to a financelease entered into in that calendar yeardoes not exceed $150,000.'·

TAX CREDITSTEFRA reduces part of the benefit of

tax credits in that the basis of assetsmust be reduced by 50 percent of theamount of regular, energy, and certified historic structure investment taxcredits." A taxpayer can elect in lieu ofthe reduction in basis, however, a2-percentage point reduction in thecredit on a property by property basis."This applies, generally, to propertyplaced in service after December 31,1982."

Also, the investment tax credit mayonly reduce 85% of the income tax liability (instead of 90%) in excess of

$25,000. This is effective for tax yearsbeginning after December 31, 1982."

Finally, the targeted jobs credit, giving a credit for a percentage of wagespaid to certain employees, is extendedto 1984.'s

EMPLOYMENT TAXESThe IRS has perennially argued with

taxpayers about whether certainindividuals are employees or independent contractor, two categories ofstatutory"non-employees" are createdby TEFRA. Licensed real estate agentsand direct sellers are treated as independent contractors after 1982 if substantially all the remuneration is relatedto personal services such as sales andsuch services are performed pursuantto a written contract which states thatthey will not be treated as employeesfor Federal employment tax purposes. '6

The wage base for the FederalUnemployment Tax Act (FUTA) is increased to $7,000 and the rate is increased to 3.5% but wages paid to certain alien farm-workers are excludedfrom FUTA taxes until 1984." Thereare also revisions in the administrationof the unemployment tax system.

Perhaps the only welcome provisionof the '82 Act for individuals subject toFICA is the inclusion of most Federalemployees under the hospital insurance portion of the FICA tax. Thismakes such employees eligible forMedicare Part A."

CONSTRUCTION INDUSTRYPROVISION

Certain provisions of TEFRA address perceived abaises of taxaccounting procedures by the construction industry. All corporations arenow required to capitalize interest andtaxes atlributable to the constructionperiod of non-residential real propertyand to amortize such amounts over1a-years." It will be important to determine exactly when "construction"begins because the provision appliesto projects started before 1983. Thisdoes not apply to residential real property constructed by regular corporattcms. 20

TEFRA also directs the Treasury toamend its regulations on the completed contract method of accounting,under which income and costs allocable to the contract are not reporteduntil the year the contract is compieted." The result of the change in theregulations will be to cause more currently deductible costs to become contract costs. Also, the determination of

when a contract is completed would berevised so as to prevent the practice ofaggregating several contracts, therebyextending the time for reporting the income.22

EMPLOYEE BENEFIT PLANSTEFRA makes substantial changes

in the qualification requirements andtax treatment of qualified employeebenefit plans. Although by statute thechanges are applicable to all qualifiedplans, the changes are primarily directed toward pension and profit sharing plans of the Professional Corporation.

Parity. Starting in 1984 there will befew differences between qualifiedemployee benefit plans for corporations and for self-employed individuals(Keogh Plans). The changes involveremoving the added requirements forself-employed plans and makes certain rules, formerly applicable only toself-employed plans, effective for corporate plans. Specifically, the followingrequirements for self-employed(Keogh) plans are removed effective in1984:

(a) that the plan's trustee be a bank;(b) that the employee is fully vested

when a contribution is made;(c) that a profit sharing plan provide

a definite contribution formulafor a common-law employees.

(d) that employees with 3 years ofservice must participate.

(e) that the owner-employee consent to participate;

(I) that benefits not be paid to anowner-employee before hereaches age 59Y2.

(g) that contributions may not bemade on behalf of owner-employee in excess of the amountdeductible;

(h) that an owner-employee can'tparticipate for the five yearsafter he makes an early withdrawal;

(i) that a plan which benefits onlyowner-employees not permitnon-deductible voluntary contributions;

(j) that a plan covering an owneremployee have special restrictions if its integrated;

(k) that benefits payable to the surviving spouse of an owneremployee be distributed within 5years of his death;

(I) that compensation over$200,000 can't be taken into account; and

(m) that an excise tax on excesscontributions is due."

Furthermore, several requirements,presently applicable only to Keoghplans, will apply to all plans after 1983.These are:

(a) special rules for integration withSocial Security;

(b) distributions must begin by age70Y2.

(c) distributions after the death ofthe participant must be completed in 5 years."

Contribution and Benefit Limits:The '82 Act makes the followingchanges in regard to limits or contributions and benefits:

(a) defined benefit plans must reduce the maximum allowablebenefit to the lesser of 25% ofcompensation or $90,000 (for1982 it was $135,425);

(b) defined contribution plans mustreduce the maximum allowablecontribution to the lesser of 25%of compensation or $30,000 (for1982 it was $45,475);

(c) the cost of living adjustment forthe dollar limitations on contributions and benefits is suspended for 1983 through 1985.

(d) an actuarial adjustment must bemade for benefits paid from adefined benefit plan for earlyretirement before age 62 (formerly age 55).

(e) for participants who are coveredby a defined contribution planand a defined benefit plan, theold "1.4 rule" is now the "1.0rule" (although it actually is 1.25for dollar limits and 1.4 for percentage limits)."

Top Heavy Plans. A new concept,"top heavy" plans, is introduced byTEFRA and applies for tax yearsbeginning after 1983. A plan is topheavy if the accrued benefits for "keyemployees" (officers, shareholders,etc.) exceeds 60% of the aggregate ofall accrued benefits for all employeescovered by the plan." The consequences of a plan being top heavy arethat one of two minimum vestingschedules must be used and a minimum, non-integrated benefit or contribution, as the case may be, must beprovided for non-key employees.

Professional and Personal Service Corporations. There are severalways in which highly paid professionalscan structure their business so as toprovide a very liberal employee benefitprogram for themselves while offeringa less favorable one to lower paidemployees. The term "affiliated service

continued on page 132July 1983/Arkansas Lawyer/131

Tax Equity. ..,continued from page 131

group" has been with us for severalyears now. TEFRA expands the classof organizations covered so as to include organizations performingmanagement functions." Similarly,"leased employees" will be treated asemployees of the company for whichthey actually perform services (the"service recipient") for purposes ofgauging whether the employee benefitplan of the service recipient qualifies.'"These provisions are effective afterDecember 31, 1983.29

Furthermore, the IRS now has theauthority to allocate income to theshareholder of a corporation whoseprincipal activity is the performance ofpersonal services substantially all ofwhich are performed for one other entity. The corporation must, before theIRS can re-allocate income, be availedof for the purpose of utilizing some taxbenefit not otherwise available to it.'"For instance, a pathologist's professional corporation would be ignored bythe IRS for tax purposes if the pathologist did substantially all his work for onehospital, thereby causing the income ofthe corporation to be taxed to thepathologist directly."

Loans. Loans made after August 13,1982, in excess of $10,000 from qualified plans will be treated as distributions." Before TEFRA, a loan was allowed if available on a non-discriminatory basis, was adequately secured,bore a reasonable rate of interest, andwas otherwise prudent under the circumstances. The new law requires thatthe loans be repaid within 5 years anddo not exceed the lesser of:

(a) $50,000, or(b) 1/2 of the present value of the

participant's vested interest inhis accrued benefit but no lessthan $10,000.

Home loans are not subject to the5-year limitation."

Miscellaneous. TEFRA limits theestate tax exclusion for amounts payable under qualified plans and individual retirement accounts to$100,000." Before TEFRA, the exclusion was available for the full value ofperiodic distributions (to the extentattributable to employer's contributions) from qualified plans, for lumpsum distributions for which favorableincome tax treatment was not elected,and for annuity and IRA paymentsspread out over at least three years."

After 1983, only surviving spouseswill be allowed to obtain rollover treat132/Arkansas Lawyer/July 1983

ment for distributions from a deceasedspouse's IRA and partial rollovers fromIRAs will receive the same treatmentas partial rollovers from qualified plans,namely, only the part not rolled over istaxes.'"

CORPORATION PROVISIONSTax Payments. TEFRA reduces the

following tax benefits by 15% for allcorporations except S corporations.

(a) percentage depletion of iron areand coal

(b) amortization of pollution controlfacilities

(c) financial institutions' bad debtreserves

(d) certain capital gains on sale of*1250 property

(e) financial institutions' interestdeductions to carry tax exemptbonds

(I) deemed dividends from DISCs(g) intangible drilling costs of "inte

grated" oil companies(h) mining exploration and devel-

opment costs."The general effective dates for theabove are tax years beginning after1982."

Corporation income tax paymentshave been accelerated in two ways.First, the election to pay the balance oftax due as shown on the return in twoequal installments is eliminated."Second, in order to avoid the 20% penalty for underpayment, the estimatedtax payments due throughout the taxyear are increased to 90% of the estimated tax due (from 80%).'·

Partial Liquidations. Prior to the '82Act, amounts received in exchange forstock upon partial liquidation of a corporation received exchange treatmentunder *331 (a). Even if appreciatedproperty was distributed, the distributing corporation recognized no gain orloss (with certain exceptions). "Partialliquidation" was a word of art with certain requirements to be met beforetreatment under *331 (a) could beused. 41

The '82 Act changes the tax treatment to the shareholder-distributeesand to the distributing corporation. Asto share holders' treatment, *331 (a) nolonger provides exchange treatmentfor partial liquidations. Non-corporateshareholders may still use partialliquidation treatment under new *302(b)(4)and corporate shareholders must relyon §302(b)(1), (2) or (3)." Treatment ofthe distributing corporation is determined under *311 ."

Section 311 as amended by the '82

Act provides for non-recognition of gainto the distributing corporation with respect to its stock, with certain exceptions stated at §311 (b), (c), and (d)(1).New §311 (d)(B) allows non-recognition of gain to the distributing corporation upon distribution of appreciatedproperty to a non-corporate shareholder in partial liquidation of the distributing corporation (a new *302(b)(4)distribution). This non-recognitiontreatment is available if the distributionis made with respect to "qualifiedstock", which is, generally, at least10% of the stock of the corporation andis held by a non-corporate shareholderfor the preceeding five years." Similarly, there is non-recognition treatment for distributions of stock of a controlled corporation in partial liquidationor redemption."

Stock Purchases Treated asAsset Purchases. New *338 eliminates some of the differences in themethods of taxable acquisition of theassets of target corporations (one, purchase of assets in §337 liquidation and,two, purchase of stock followed by§334(b)(2) liquidation)."

New §338 replaces §334(b)(2) by allowing the corporation purchasing thetarget corporation's stock to elect costbasis/non-recognition treatment" Theeffect of electing new *338 is that thetarget corporation is treated as havingsold its assets in a §337 transaction onthe day of the stock purchase and then,on the following day, as having purchased those assets as a new corporation; the election is irrevocable."

Bail-out of Corporate Earnings.TEFRA provides that *304 controls insituations which are literally describedin *304 and *351 ." This is illustrated bythe following facts: A, an individual,owns all the stock of Corporation X and80% of the stock of the Corporation Y.A transfers stock in X to Corporation Yand receives stock in Y and $300 cash.If *304 controlled, A would be taxed onthe $300 as a dividend. If *351 controlled, it would be taxed on $300 of capitalgain. New §304(b)(3) requires that*304 control.5.

TEFRA attacks another device usedto get earnings out of corporations withlittle tax consequences, namely,recapitalization of an existing corporation, a common estate planning technique. The '82 Act provides that theattribution rules of §318 apply to determine whether preferred stock was§306 stock." This foil to an effectiveestate planning device is shown as follows: Father and Son own all of the


WITH SEVEN NATIONALLYRENOWNED SPEAKERS

49. TEFRA 1226.50. Id. P. Faber, How the New Tax Law

Changes the Rules Affecting the Bail-Oul ofCorporate Earnings. 57 J. Tax 28', at 284(1982).

51. TEFRA §227 amending LR.C. 1306 P.Faber, How the New Tax Law Changes theRules Affecting the BailOut of CorporateEarnings. 57 J Tax. 281. at 284 (1982).

52 TEFRA §227 amending LR.C. 1306.

.-:,

40. TEFRA 1234 amending LR.C. §6655.41. LR.C. §1331. 336 before amendment by

TEFRA.42. TEFRA. §222 amending LR.C. 1302.43. TEFRA. §223.44. LR.C. 311(d)(2)(B) and (e)(l) as amended

by TEFRA 1223.45. LR.C. 1311(d)(2)(C) and (e)(2) as amended

by TEFRA *223.48. TEFRA 224.47. Id. H. Rept. No. 97-760. 97th Cong., 2d

Sess. 530. at 536 (1982).48. LR.C. §338(a) and (g)(3) as added by

TEFRA 224.

JUNE 8-11, 1983ARLINGTON HOTEL

HOT SPRINGS, ARKANSAS

"ANATOMY OF THETORT TR IAL"

ARKANSASBAR ASSOCIATION85TH ANNUAL MEETING

NOTES1. ERTA §201(a) adding LR.C. §168.2. TEFRA §206.3. ERTA §201(a) adding I.R.C. §168.3A. TEFRA §208(d).4. TEFRA §209(d).5. TEFRA *208 amending LR.C. §168(D.6. TEFRA §209 amending LR.C. *168(1)(8).7. H. Rept. No. 97-760, 92d Cong.• 2d Sess. p.

489 (1982).8. TEFRA *209 amending LR.C. §168(n(8).9. LR.C. §168(D(8) and (i) amended byTEFRA

*209.10. Id.11. TEFRA §205(a) adding LR.C. §48(q).12. Id.13. TEFRA §205(0)(1).14. TEFRA §205(b) amending LR.C. §46(a)(3);

and TEFRA §205(0)(2).15. TEFRA §233 amending LR.C. §51.16. TEFRA §26g(a) and (b) adding LR.C.. 3508.17. TEFRA **271 (a), (b) and 277 amending

LR.C. §3306.18. TEFRA §278 amending LR.C. §3121.19. TEFRA .207 amending LR.C. 189.20. Id.21. TEFRA .229.22. Id.23. TEFRA *237 amending I.R.C. §§72. 401.

404.4972.24. TEFRA §§242. 249 amending LR.C. §40125. TEFRA. 235 amending LR.C. §415.26. TEFRA 240 adding I.R.C. §416.27. TEFRA §246 amending I.R.C. 414.28. TEFRA §248 adding I.R.C. §414(n).29. TEFRA §246(b) and 248(b).30. TEFRA §250 adding LR.C. §269A.31. New I.A.C. §269A is specifically intended to

prevent the result reached in Keller v.Comm., 77 T.C. 1014 (1981). H. Rept. No.97·760 97th Long, 2d Sess.• p. 634 (1982).

32. TEFRA §236 amending LR.C. §72.33. Id.34. TEFRA 1245 amending LR.C. *2039.35. LR.C. §2039 before amendment by TEFRA.36. TEFRA **243 and 335 amendment by

TEFRA.37. TEFRA §204 adding LR.C. 1291.38. TEFRA §204(d).39. TEFRA §234 amending LR.C. *6152.

common stock of Corporation. Fatherwants to get out of the active businessbut needs the income from the stock. IfFather exchanges is common forpreferred stock, he "locks" in an estatetax value on his stock but retains income and, possibly, control of Corporation. If the preferred is "§306 stock," itssale will produce ordinary income. Thetest of whether the preferred is §306stock rests, in large part, on whether, ifcash had been distributed, it wouldhave been treated as a dividend. IfFather "terminates his interest" in thecorporation by surrendering all of hiscommon stock it would be treated as aredemption and his preferred stockwould not be §306 stock. This is theresult only if §318 is not applied. Section 318, as amended by TEFRA wouldimpute son's ownership to Father, thuspreventing the "complete terminationof interest" necessary to redemptiontreatment."

DWI REFORM:

.............1111 JURIS DICTUM

by Robert L. LoweryExecutive Secretary, Judicial Department

IF YOU DRINK, DON'T DRIVEIF YOU DRIVE, DON'T DRINK.

Slogans intended to discourage thecombination of driving and drinking willlikely, more than ever, be given heed.The force of law has now becomemore forceful with the passage of Act549 of 1983, the "Omnibus OWl Act,"and of its financial companion, Act 918of 1983, which sets an additional courtcost of $250.00 upon conviction ofOWl.

Two separate, distinct offenses aredefined in Act 549. One offense is thefamiliar OWl offense, the operation orphysical control of a motor vehicle byan intoxicated person. "Intoxicated" isdefined to mean a person influencedor affected by the ingestion of alcohol,a controlled substance, or a combination thereof, to such a degree that thedriver's reactions, motor skills, andjudgment are sUbstantially altered andthe driver, therefore, constitutes aclear and substantial danger of physical injury or death to himself and othermotorists or pedestrians.

It is presumed that the defendantwas not under the influence of intoxi-


One year Same as first 5400-minimum offense. 53,000.suspenSiOn.

Two years Same as first S900-minimum offense. S5,000.suspension.

Three years Same as first $900-minimum offense. $5,000.revocation.

three years. For fine purposes, subsequent offenses are those occurringwithin five years.

Offenses occurring within threeyears of the effective date of Act 549are considered in determining subsequent offenses.

Pre-sentence reports are requiredto be submitted to the court withinthirty days of the finding of 9uilty or aplea of guilty or nolo contendere.These reports are required to includethe offender's driving record, alcoholrelated criminal record and alcoholproblem assessment, and a victim impact statement, where applicable.

Plea bargaining is not to be used.Persons arrested under Act 549 forOWl or for driVing while there was0.10"10 or more alcohol in the person'sblood "shall be tried on such chargesor plead to such charges and no suchcharges shall be reduced."

Circuit and Municipal Judges arespecifically prohibited from utilizingprobation and expungement under Act346 of 1975 (Ark. Stal. 43-1231 etseq.).

In addition to the provisions listedabove for suspension of an operator'slicense, the operator's license may besuspended if the jUdge determinesthat the iaw enforcement officer hadreasonable cause to believe the arrested person had been driving whileintoxicated or while there was 0.10%or more of alcohol in the person'sblood, and the person refused to submit to a chemical test upon the requestof the law enforcement officer. If withina period of three years, the person hadnot previously refused the test andhad not been convicted of either of theabove offenses, the period of suspension will be for a period of not less thansix months. If the person had previously refused the test within threeyears of the refusal in question, or if


$150$1.000.

Range ofFine

OtherRequirements

Must completean alcoholtreatment and/oreducationprogram.

cating liquor if there was 0.05% orless by weight of alcohol in the defendant's blood, urine, breath, or otherbodily substance within two hours ofthe alleged offense. There is no presumption if the blood alcohol contentwithin two hours of the alleged offensewas in excess of 0.05% but less than0.1 DOlo, but such fact may be considered with other competent evidence indetermining guilt or innocence.

The other offense, requring no proofof intoxication, is the operation orphysical control of a motor vehicle by aperson when there is 0.10% or moreby weight of alcohol in the person'sblood as determined by a chemicaltest of the person's blood, urine,breath or other bodily substance.

The ranges of the various penaltiesfor those convicted of OWl or of drivingwhile there was 0.10% or more alcoholin the person's blood are as follows:

For imprisonment purposes and forpurposes of suspension or revocationof the operator's license, subsequentoffenses are those occurring within

Action Re:Operator's

License

90 daysminimumsuspension

90 days-oneyear.

Range ofImprisonment

24 hours-{)neyear. (Publicservice may beordered inlieu of jaIlbut court muststate reasonstherefor Inits wnttenorder.)7 days-oneyear.

Felony: Oneyear-sixyears.

Fourth

Third

Second

OffenseNumber

First

YOUNG LAWYERS'UPDATE

......JUly 1983/Arkansas Lawyer/135

soring an essay contest for highschool students. Kaye Oberlag alsoworked with Arkansas EducationalTelevision to sponsor a one-hourpresentation during the week on a iawrelated topic. Our goal was to encourage a greater appreciation by the public for the jUdicial system and to upgrade the image of the legal profession in general.

At the conclusion of the annualmeeting, Carl Crow of Hot Springs willassume the position of Chairman ofthe Young Lawyers Section. I want totake this opportunity to thank all ofthose who have served so well asmembers of the Executive Council andCommittee Chairmen of the section'scommittees. Because of their efforts,and the efforts of previous sectionm$T1bers, we had a very active year,receiving accolades at the 1982 annual meeting of the American Bar Association and accomplishing manytasks which were of importance to thesenior bar and our profession as awhole. The thrust of our future activities will be to increase the activeparticipation of Young Lawyers' Section members in its activities. It is alsoa goal to increase our emphasis onproviding benefits and training to theyoung lawyers of Arkansas. As ourby-laws provide, any active member ofthe Arkansas Bar Association underage 35 is eligible to participate. If youare a young lawyer who is not yetinvolved, make plans to do so. Ourfuture leadership is in good hands,and each member can rest assuredthat participation in section activitieswill reap far more benefits than burdens.

Law Week Plans UnderwayVicki Cook of Hot Springs served as

our section's chairman in coordinatingLaw Week activities. The section participated in sponsorship of LegalCheck-Up Clinics in the various bardistricts, mock trial presentation in various school districts throughout thestate, and work in coordination withthe Arkansas Bar Association in spon-

Section Hosts AffiliateOutreach/CLE Meeting

On March 25 and 26 the sectionhosted lawyers from Oklahoma, Missouri, Texas and Arkansas for a Regionai Affiliate Outreach meeting ofthe Young Lawyers Division of theAmerican Bar Association. SteveWaxman of Philadelphia, Pennsylvania and Mike McNerney of FortLauderdale, Florida conducted an excellent workshop session on Fridaymorning. The section sponsored arace at Oaklawn Park on Friday afternoon and made a trophy presentationto the winners. On Saturday morningFred Cornish and Pat Cremin of Tulsa,Oklahoma made outstanding presentations on methods and presentationof effective opening statements. Wehad a good number of participants atboth sessions. Based on the successof the last two years, our section willplan on making this an annual event.

future section officers. The meetingwill begin immediately upon conclusion of the panel discussion, andevery effort will be made to concludein time for all to participate in theafternoon cocktail parties.

By Frank C. Elcan, IIYLS Chairman

The section is also sponsoring theannual dance scheduled for Thursdaynight. Walter Paulson of Little Rockhas arranged for The Stylemasters'Orchestra from Little Rock. They provide a "Big Band" sound that will appeal to participants of all ages. Makeplans to come early and stay late. Agood time will be had by all who attend!

Immediately upon conclusion of thequestion and answer session in theafternoon, the Young Lawyers Sectionwill hold its annual business meeting.The main item of business will beelection of section officers for the1983-1984 bar year. There are alsosome important by-law amendmentsdealing with methods of election of

YLS Participates In Annual MeetingThe Young Lawyers Section will

sponsor the afternoon session of theannual meeting of the Arkansas BarAssociation on Thursday, June 9,1983. Highlighting the afternoon session will be a panel discussion dealingwith presentations by the speakers atthe morning session. Panei memberswill be Michael Cooley of Columbus,Ohio; Jeffrey Smith of Atlanta, Georgia; and David Shrager, of Philadelphia, Pennsylvania. All three panelistshave outstanding credentials as trialattorneys. They will be responding toquestions on their morning presentations on psychology of a trial, thestandards of care for a trial, andpreparation for the trial. These topicsare all of major interest to young lawyers, and I hope each of you will makeplans to attend. The session will startimmediately upon conclusion of theluncheon.

By: Carol UtleyCommunications Director

OYEZ - OYEZ II• •

DECEMBERMunicipal Judge EDWARD MAD

DOX of Harrisburg was honored with aretirement luncheon for his years ofservice to the Trumann MunicipalCourt. WILLIAM S. MEEK became apartner in the Ashley County firm ofArnold, Hamilton and Streetman inHamburg and Crossett. TIMWOMACK of Camden became a partner in the firm of Barnes, Laney,Gaughan, and Singleton. Texarkanaattorney NICK PATION was named tothe International Academy of TrialLawyers. Jonesboro City AttorneyJUDY HENSON was named 1982Woman of the Year by the JonesboroDowntown Business and ProfessionalWomen's Club. H. WILLIAM ALLEN ofLittle Rock was re-elected to the Boardof Directors of the American JudicatureSociety, a national organization forimprovement of the courts. W. KELVINWYRICK, former Chancery Judge ofthe Eighth Judicial District of Arkansasannounced his return to the privatepractice of law in the Autrey Professional Building, 503 East 6th Street,Texarkana, Ark. BILL JOHNSON ofHamburg, was honored for his serviceto the city after serving fourteen yearsbefore retiring as Hamburg City Attorney. ROBERTT. BRANCH of Paragould has been appointed to the Supreme Court Committee on Professional Conduct. He replaces CaldwellBennett of Batesville whose term expired. In addition, JERRY CAVENEAUof Searcy has been elected chairmanand SUSAN MILLER, secretary for1983.

JANUARYJOYCE WILLIAMS WARREN was

sworn in as Pulaski County JuvenileJudge on January 8th. Judge Warrenhad been an attorney with Central Arkansas Legal Services since January1983. The law firm of JONES, GILBREATH & JONES announced thatthe following associates became136/Arkansas Lawyer/July 1983

JOYCE WILLIAMS WARREN

members of the firm: RANDOLPH C.JACKSON, KENDALL B. JONES andMARK A. MOLL. HANKINS, HICKS &MADDEN announced that PAUL D.CAPPS has joined the firm now knownas HANKINS, CAPPS, HICKS andMADDEN. The law firm operating inPine Bluff under the name "Coleman,Gantt, Ramsey & Cox", which is a partnership of Louis L. Ramsay, Jr., E. Harley Cox, Jr., John G. Lile, III, William C.Bridgforth, Martin G. Gilbert, F. DanielHarrelson, M. Jefferson Starling, Jr.,James W. Hyden, Spencer F. Robinson, Richard L. Ramsay and, Phillip A.Raley, announced that the name haschanged to "Ramsay, Cox, Lile,Bridgforth, Gilbert, Harrelson, & Starling". John D. Davis and Patrick A. Burrow are associated with the firm.JUDITH A. DESIMONE has beennamed a partner in the Pine Blufffirm ofBaim, Baim, Gunti, Mouser & Bryant.DAVID P. SOLOMON of Helena washonored with the Distinguished EagleScout Award by the Eastern ArkansasArea Council, Boy Scouts of America.

In addition, Solomon received the"Citizen of the Year" Award from thePhillips County Chamber of Commerce. JAMES C. HALE JR. and JOEM. ROGERS, both of West Memphis,have been reappointed as CrittendenCounty deputy prosecuting attorneysfor the Second Judicial Circuit.CHRISTINA McQUEEN of Hope wasguest speaker at the noon meeting ofthe Hope Kiwanis Club. She discussedthe importance of good attorney/clientrelations and the lawyers public image.Retired Circuit Judge JOHN ANDERSON of Helena, was appointed PhillipsCounty Juvenile Judge replacing Kathleen Bell. JANET L. PULLIAM announced the relocation of her law officeto Gazette BUilding, Suite 350, 112 W.3rd, Little Rock, 72201. JEFF STARLING was elected president of the PineBluff Chamber of Commerce. WILLIAM M. CLARK was elected to theConway Development CorporationBoard of Directors. JAMES M. DENDY, formerly assistant counsel of FirstArkansas Bankstock Corporation, entered the private practice of law as anassociate of the firm of Pope, Shamburger, Buffalo and Ross. Bairn, Baim,Gunti, Mouser & Bryant announcedthat JUDITH ANN DESIMMONE isnow a partner in the firm. Former Circuit Judge KEITH RUTLEDGE has become a partner in the firm now knownas Highsmith, Gregg, Hart, Farris andRutledge. WILLIAM E. "BILL"JOHNSON was elected to the FarmersBank Board of Directors in Hamburg.RICHARD NELSON is MountainHome's new city attorney for fouryears. WILLIAM NASH of Little Rockretired as a member of the Board ofTrustees of the Donaghey Foundationafter serving for 37 years. JOHNRICHARD BYRD and TIMOTHY A.TARVIN formed a partnership for thepractice of law in Hamburg known asTarvin & Byrd at 204-A East LincolnStreet. Mitchell, Williams Selig Jackson & Tucker announced that PAT

MORAN became a partner in the firm.GREGORY B. GRAHAM and JOSH R.MORRISS III formerly of the firmWheeler, Graham, Gooding, & Morrisshave formed the firm of Graham & Morriss, with offices at 4122 Texas Boulevard, Suite D, Texarkana, Texas. Menaattorney DANNY THRAILKILL wasreappointed deputy prosecuting attorney for Polk County. R. BRYAN TILLEY has joined the firm of Reed & Irwin, P.A., in Heber Springs. Dayton G.Wiley, Arkansas, 1949, of Wiley Garwood, Stolhandske & Simmons, an·nounced that GEORGE F. EVANS,JR. and BRUCE W. BODNER havebecome associated with the firm in SanAntonio. MARION HUMPHREY announced the opening of his new iawoffice at 706 Linden Street, Suite A,Pine Bluff. BILL BALL spoke to theDrew County Retired Teachers Association in Monticello about "Legal Preparedness for Retirees." RICHARD L.MILLER announced the opening of hislaw office at One Mcilroy Plaza, Suite502, Fayetteville. He was associatedwith F. H. Martin prior to the move.ALLEN GORDON of Morrilton, wasappointed to the state Job TrainingCoordinating Council by Gov. Bill Clinton. Malvern attorney LAWSONGLOVER received the "For He's AJolly Good Lion" award from theArkansas Enterprises for the Blind, anorganization sponsored by Lions Club.LESLIE R. ABLONDI joined the officeof North Little Rock City Attorneys asan assistant. MICHAEL E. HALE ofLittle Rock was elected a Fellow of theInternational Society of Barristers.ROBERT MOREHEAD of Pine Bluff,was featured speaker at the PiumBayou-Tucker School District's observance of Black History Month. BOBLESLIE of Little Rock spoke to theOpportunity Chapter of the AmericanBusiness Women's Association at ameeting held at Eden Park CountryClUb. Newport attorney SAM BOYCEwas appointed vice chairman of theSocial Security Advisory Committee toCongressman Bill Alexander. Lowelllawyer JOHN M. STEPHENS wasselected to serve as chairman of theBenton County Democratic CentralCommittee.

FEBRUARYLARRY YANCEY joined the firm

now known as Overbey, Peace, McClain and Yancey located in the FirstFederal Plaza. LINDA GRIMMcCORMICK is now working as an estate planner for the Federal Land Bank

in Fayetteville. WILLIAM H. L.WOODYARD, III has been named ofcounsel to the Little Rock form of Mitchell, Williams, Selig, Jackson &Tucker. JOE B. COGDELL, JR. wasnamed a partner in the firm of Mcintyre,McDivitt, Casey. Kivel & Cogdell inOklahoma City. Attorney LONNIEGEHRING spoke to the Round TableLiterary Club in Brinkley on "GoodNews for Senior Citizens." JEFFERYSTORY was guest speaker at Mt.Tabor Baptist Church in Magnolia during "A Salute to Black Awareness."The assistant attorney general is a native of Magnolia. JUDGE WARREN O.KIMBROUGH, Chancery Judge of FortSmith, spoke during the five-countymid-winter meeting of the 13th districtof the American Legion. MARKROBERTS has joined the Malvern lawfirm of Glover & Glover. JOHN FORSTER was named to membership in theAmerican Board of Criminal Lawyers.He is a partner in the North Little Rocklaw firm of Wallace Hilbum, Clay1on,Calhoon, and Forster, ltd. DAVID R.ROGERS of Greenwood, opened a lawoffice in the Boyd Building in Mansfield.ARK MONROE III was promoted tosenior vice president and generalcounsel of Union Life Insurance Co. ofLittle Rock. Attorney HERSCHEL H.FRIDAY of Little Rock was elected tothe newly expanded board of directorsfor Union Pacific Railroad.

MARCHDON BASSETT of Little Rock was

selected one of the Five OutstandingYoung Men in Arkansas and also oneof the Outstanding Young Men inAmerica. PAT BURROW of Pine Bluffwas the guest speaker at a meeting ofthe Jefferson County Legal SecretariesAssociation. BUD NEWTON of Searcywas promoted to Vice President andTrust Officer of First Security Bank.HARRY BARNES, Camden attorneyand judge, was guest speaker at theannual Blue and Gold banquet held byStephens Cub Scouts. LINDAFAULKNER BOONE of Batesville,was appointed juvenile judge of Independence County. JAMES E,CROUCH and WILLIAM M, CLARK,JR. were named p'artners in theSpringdale firm of Cypert and Roy.MORRIS S. "BUZZ" ARNOLD, statechairman of the Republican Party, wasfeatured speaker at the HempsteadCounty Republican Committee's lincoln Day Dinner. RODNEY C, WADE,attorney, U.S. Internal Revenue Service, St. Louis District, was admitted to

the State Bar of Missouri and appointed to the Missouri State TaxCommission. He is also serving aslegal instructor for a C.P.A. examination preparation course in St. Louis.PAUL JOSEPH JAMES has formed apartnership with W. H. "Sonny" Dillahunty for the practice of law to beknown as Dillahunty and James in LittieRock. RANDALL W. ISHMAEL ofJonesboro, was afternoon speaker at aseminar hosted by the JonesboroLegal Secretaries Association. '"

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He that keepeth the law, happy is he.Proverbs 29: 18

lln jfMemoriam

HOMER T. ROGERSHomer T. Rogers, aged 79, of

Smackover, died Friday, March 11,1983, in Little Rock.

He practiced law in Smackover from1925 until his retirement in 1980. Hehelped to form and was on the boardof the Union County Barton Libraryand the board of Smackover StateBank.

Survivors are his wife, Mrs. GladysLawson Rogers of Smackover; twosons, Bill Rogers of Ruston, La. andDr. Henry B. Rogers of EI Dorado; onesister, Mrs. Lillian Sanders of Columbia, Ala.; five grandchildren and threegreat-grandchildren.

* • •

HARRY EDWARD MEEKHarry Edward Meek, aged 91, of

Brookside Drive in Little Rock, diedThursday, October 14, 1982.

He was best known for his work inbanking law and for the drafting of thestate's corporation and commercialcodes and for founding the PulaskiCounty Humane Society more than 30years ago.

Mr. Meek received his law degreefrom the Little Rock Law School in1913 and briefly practiced law in Stuttgart before joining the Army. AfterWorld War I, he moved to Little Rockwhere he joined the firm of Robinson,House and Moses. He was later appointed regional counselor for theReconstruction Finance Corporationby the late President Herbert Hoover.In 1940, he joined the Rose Law Firm.At his retirement from the practice oflaw in 1980, he was one of Arkansas'oldest practicing lawyers. Mr. Meekwas responsible for drafting the 1957law which allowed Arkansas cities toadopt the city-manager form ofgovernment.

In an article written for The Arkansas Lawyer (Vol. 12, No.1, Jan.1978) about Mr. Meek, Phillip Carrollperhaps describes him best:

"Legislators will remember HarryMeek as the draftsman of the Cor


poralion and Inheritance Codesand perhaps because he was oneof the few who ever understood theUniform Commercial Code. Bankers will recall Harry Meek during thetumultous days of 1933 and 1934when, as an attorney for the RFC,he guided the reorganization of dozens of closed and founderingbanks. Dogs, cats and birds withbroken wings think of Harry Meekas a sort of St. Francis /I, for noneof them who were hungry, stuck in atree, or in need of a veterinarian,were ever passed by... Most of uswill remember him for his humor.For almost forty years, this tall,gaunt, bespectacled man with theerrant tufts of hair, tickled the funnybones of thousands of people."

He was named Lawyer of theYear in 1962 by the Arkansas BarAssociation and received the Pulaski County Bar Association'sLawyer Award. The Arkansas General Assembly honored him onMarch 8, 1977, at a special jointsession and declared the day"Harry Meek Day."

Survivors are his wife, MonaVoght Meek; two daughters, Mrs.W. H. Youngchild of Heber Springsand Mrs. C. L. Garrett of EI Dorado,five grandchildren and three greatgrandchildren.

• • •

JOSEPH CAHILL HITIJoseph Cahill Hilt, aged 45, died

February 9, 1983 in Baytown, Texas.He was a partner in the law firm of

Smith, Hitt and Mescall and was notedas the first board certified specialist inpersonal injury and civil trial law to jointhe firm.

Mr. Hitt was a 1962 graduate of theUniversity of Texas School of Law. Hehad been an adjunct professor of lawat South Texas College of Law since1979 and at the University of Houstonin 1980-81.

He was a member of the Houston,Arkansas and American Bar Associa-

tions and the State Bar of Texas. Hewas also a director of the Texas TrialLawyers Association since 1969 andheld memberships in the ArkansasTrial Lawyers Association, the Association of Trial Lawyers of Americaand the American Board of Trial Advocates.

Survivors are his wife, Pauline Hittof the home; two sons, Jeffrey WarrenHitt of Austin and Robert Line Hitt ofTexarkana; a daughter, Angela CayHitt of Houston; and his mother, OmaEllen Hitt of Austin.

• • •ARCHER WHEATLEY

Archer Wheatley, aged 97, ofJonesboro, died Tuesday, March 15,1983, at St. Bernard's Regional Medical Center.

Mr. Wheatley was born in DuQuoin,III. and moved to Jonesboro in 1909 tobegin his law practice. He wasgraduated in 1907 from the Transyivania College of Law in Kentucky. Hewas a former chancery judge andlegisiator.

In 1943, he formed a law partnership with the late Joe Barrett. The firmlater became Barrett, Wheatley, Smithand Deacon.

He was a member of the First Christian Church where he served as boardmember and Sunday School teacher.In addition, he was a member of theCraighead County, Arkansas andAmerican Bar Associations.

Survivors are a daughter, Miss BettyJeanne Wheatley of the home and agrandson.

••

EDWARD H. PATIERSON, SA.Edward H. Patterson, Sr., aged 76,

of Clarksville, former state representative and Clarksville city attorney, diedJanuary 10, 1983.

He was admitted to practice beforethe Arkansas Supreme Court in 1928and was a member of the Clarksvillefirm of Patterson and Patterson wherehe practiced with his father, brotherand son. He was a member of the FirstPresby1erian Church where he servedas an elder and deacon.

Survivors are his wife, GladysThomson Patterson; three sons, Edward H. Patterson, Jr. of Germantown,Tenn., George T. Patterson of Denverand Circuit Judge John S. Patterson ofClarksville; and four grandchildren.

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Juris Dictum,continued from page 134

the person had been convicted of driving while intoxicated or of driving whilethere was 0.10% or more of alcohol inthe person's blood, the minimumperiod of suspension will be one year.

Any person who operates a motorvehicle during the period of suspension will be for a minimum of one year.

Any person who operates a motorvehicle during the period of suspension or revocation of an operator'slicense shall be imprisoned for tendays, and if the motor vehicle operated by the person is owned in wholeor in part by the person, the motorvehicle license plate shall, at the timeof arrest, be impounded by the lawenforcement officer for no less than 90days. If a court determination is madethat it is in the best interest of thedependents of the offender, a temporary substitute license plate indicatingthat the original plate has been impounded shall be issued to such vehicle.

For the blood alcohol test, Act 549requires that the machine performingthe chemical analysis shall have beendUly certified at least once in the lastthree months preceding arrest, andthe operator thereof shall have beenproperly trained and certified, and thatthe person calibrating the machineand the operator of the machine shallbe made available by the state forcross-examination by the defendant orhis counsel of record upon reasonablenotice to the prosecuting attorney.

These are only some of the featuresfound in the 11 pages of Act 549 of1983. The Municipal and City CourtClerks in Arkansas reported to theJudicial Department that more than26,000 DWI cases were docketed in1982. Hopefully, these numbers willdrop dramatically with the added impetus given by Act 549 of 1983 to theseparation of drinking and driving.

f......


(Editor's Note: We have attempted inrecent issues ofThe Arkansas Lawyerto assist practicing lawyers with ethical considerations. At our request,Professor Howard W. Brill of theSchool of Law, University of Arkansasat Fayetteville, has prepared a seriesof comments growing out ofquestionshe has had from lawyers. The serieswill cover (1) Conflicts of Interest; (2)Gifts and Bequests from Clients toAttorneys; (3) Unauthorized practiceof law; (4) The Codes; and (5) Retaining liens of attorneys. We are indebted to Professor Brill and will publishthe series in the next two issues.)

Unauthorized Practice of Law: InPope County Bar Association v.Suggs, 274 Ark. 250, 624 SW. 2d 828(1981), the Supreme Court, althoughfinding that real estate brokers mayhave been engaging in the practice oflaw by completing legal instruments,held that the public interest permittedsuch activities, within the limitations ofthe trial judge. The court approved theuse of warranty deeds, quit-claimdeeds, release deeds, bills of sale,lease agreements and mortgages withpower of sales by real estate brokers,provided six conditions are compliedwith: The client must decline to employa lawyer and authorize the broker tocomplete the instruments; the formsmust be approved by a lawyer, eitherbefore or after the blank spaces arefilled in; the forms should be used onlyfor simple real estate transactions arising in the course of the brokers' business and only in connection withtransactions actually handled by thebroker; the broker shall make nocharge for filling in the blanks; and thebroker shall not give any legal adviceor opinions as to the effect of the legalinstruments. The opinion extended tothe entire state the decision in Creekmore v. Izard, 236 Ark. 558 367 SW.140/Arkansas LawyerlJuly 1983

ADDENDAby C. E. Ransick

Editor

2d 419 (1963) which had allowed suchactions by brokers in sparsely populated areas where attorneys were notreadily available. The Supreme CourtCommittee on Unauthorized Practiceof Law, established at 264 Ark. 960,which is authorized to initiate unauthorized practice actions was not aparty in this law suit and did not submitan amicus brief. Hopefully the committee, which is composed of both lawyers and nonlawyers, will take theaffirmative step of other jurisdictionsand bar associations and draft astatement of principles for lawyers andreal estate brokers that would set outthe guidelines for such activities,rather than wait for a case by casedetermination by the Supreme Court.

The court did emphasize that realestate brokers who elect to take onsuch obligations cannot avoid theconsequences of any neglect or incompetence that result by their activities in the practice of law. In anotheropinion the same day, Wright v. Langdon, 274 Ark. 258, 623 SW. 2d 823(1981) the Supreme Court emphasized that one who holds himself outas a lawyer or who engages in thepractice of law is held to the samestandard of care as that required oflawyers.

Retaining liens of attorneys:Arkansas attorneys may collect

legal fees with a retaining lien. Crosbyv. Hurst, 149 Ark. 11 (1921),154 Ark.300 (1922) (lien not supported by theallegations). An attorney who has performed legal services and has notbeen paid is entitled to retain anydocuments, chattels, books, papers,money, securities or possessions ofthe client that have come into thecustody of the attorney pursuant to theattorney-client relationship. Under this"passive" lien, the property may notbe sold, destroyed or "foreclosed" in

any way; the only use the attorney canmake of it is to hold it until the clientbecomes desperate enough to payfees, any costs and disbursements, 3A.L.A. 2d 148. The liens includes workproduct documents of the attorney,evidence (even if supplied by theclient), and materials supplied by theclient pursuant to the attorney clientrelationship. Although the lien may beutilized to collect any legal fees owed,the lien does not apply to items thatthe attorney may be holding for aspecial favor outside the attorneyclient relationship. 2 A.L.A. 1488 Attorneys may also assert a lien upon ajUdgment, Ark. Stat. Ann. § 29-132(Aep!. 1979) or upon a cause of action, Ark. Stat. Ann. § 25-301 et seq(Aep!. 1962).

Gifts & Bequests from Clients toAttorneys: Although no disciplinaryrule prohibits clients from giving sizeable gifts to attorneys or leaving themproperty in a testamentary transaction,the burden is upon the attorney toprove the fairness and equity of thetransaction and the adequacy of theconsideration. Bond v. Marland, 199Ark. 806, 136 SW. 2nd 460 (1940).The attorney also has the responsibility of providing all information andadvice to allow the client to act in anunderstanding fashion in both makinga gift to the attorney and in decidingwhether to seek independent legal advice before making such a gift.Norfieet v. Stewart, 180 Ark. 161, 20SW. 2nd 868 (1925). As the Court ofAppeals has recently reminded thebar, the better practice is to refer theclient to another attorney to draw up adeed or to take whatever steps arenecessary if the client desires to makea gift to the original attorney. Fletcherv. Long, 271 Ark. 942, 611 SW. 2d799 (Ark. App. 1981).....

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