Publisher's Notes. This Constitution was ratified by the people October 13, 1874, and its adoption was proclaimed October 30, 1874. See Proclamation by state board of election supervisors, following Schedule to Constitution.

A constitutional convention was held in accordance with Acts 1977 (1st Ex. Sess.), No. 3, as amended by Acts 1979, No. 622, and a new constitution was proposed. The proposed constitution was defeated at the general election held November 4, 1980. Returns: For 276,257; Against 464,210.

Case Notes

In General.

On appeal, constitutional issues will not be decided unless their determination is essential to the disposition of the case. Thompson v. State, 42 Ark. App. 254, 856 S.W.2d 319 (1993).

Construction.

The present constitution must be construed in context of the law in existence at the time of its adoption. State v. Bostick, 313 Ark. 596, 856 S.W.2d 12 (1993).

PREAMBLE

We, the People of the State of Arkansas, grateful to Almighty God for the privilege of choosing our own form of government; for our civil and religious liberty; and desiring to perpetuate its blessings, and secure the same to our selves and posterity; do ordain and establish this Constitution.

Article 1 Boundaries

We do declare and establish, ratify and confirm, the following as the permanent boundaries of the State of Arkansas, that is to say: Beginning at the middle of the main channel of the Mississippi River, on the parallel of thirty-six degrees of north latitude, running thence west with said parallel of latitude to the middle of the main channel of the St. Francis River; thence up the main channel of said last-named river to the parallel of thirty-six degrees thirty minutes of north latitude; thence west with the southern boundary line of the State of Missouri to the southwest corner of said last-named state; thence to be bounded on the west to the north bank of Red River, as by act of Congress and treaties existing January 1, 1837, defining the western limits of the Territory of Arkansas, and to be bounded across and south of Red River by the boundary line of the State of Texas as far as to the northwest corner of the State of Louisiana; thence easterly with the northern boundary line of said last-named State to the middle of the main channel of the Mississippi River; thence up the middle of the main channel of said last-named river, including an island in said river known as “Belle Point Island,” and all other land originally surveyed and included as a part of the Territory or State of Arkansas, to the thirty-sixth degree of north latitude, the place of beginning.

Seat of GovernmentThe seat of government of the state of Arkansas shall be and remain at Little Rock, where it is now established.

Cross References. Western boundary extension, § 1-1-101.

Case Notes

In General.

Upon petition for temporary injunction against the liquefied petroleum gas control board of Arkansas and its director which was filed in Calhoun County, seeking to prevent the cancelation of his permit to engage in a butane gas business, the court took judicial notice that the official residence of the gas board and its director was Pulaski County, the seat of government as provided in this article; therefore, the proper venue was Pulaski County and not in Calhoun County where the petition was filed. Liquefied Petroleum Gas Bd. v. Newton, 230 Ark. 267, 322 S.W.2d 67 (1959).

Arkansas — Mississippi.

The boundary between Arkansas and Mississippi was fixed by acts admitting states to Union as the middle of the main channel of navigation. Arkansas v. Mississippi, 250 U.S. 39, 39 S. Ct. 422, 63 L. Ed. 832 (1919).

Arkansas — Missouri.

The Arkansas Constitution fixes the physical boundary of that state as the middle of the main channel of the St. Francis River. Brown v. State, 109 Ark. 373, 159 S.W. 1132 (1913).

Arkansas — Tennessee.

The boundary between Arkansas and Tennessee is the middle of the main navigation channel in 1783, subject to changes from natural and gradual processes. Arkansas v. Tennessee, 246 U.S. 158, 38 S. Ct. 301, 62 L. Ed. 638 (1918).

State courts are concluded on state boundary questions by decisions of the U.S. Supreme Court, and Tennessee jurisdiction of island was not changed by avulsion of main channel to other side of island. Kissell v. Stevens, 164 Ark. 195, 261 S.W. 299 (1924).

Arkansas — Texas.

The boundary line between Arkansas and Texas is the south bank of the Red River. The jurisdictional line is changed by accretion or reliction but not by avulsion. DeLoney v. State, 88 Ark. 311, 115 S.W. 138 (1908).

Description of Land.

Land surveys and descriptions thereof must be read solely with reference to lands lying within the state. Alphin v. Banks, 193 Ark. 563, 102 S.W.2d 558 (1937).

Determination by Legislature.

Legislative acts fixing state boundaries will not be determined upon an agreed statement of facts. Ex parte Thompson, 86 Ark. 69, 109 S.W. 1171 (1908).

The determination of the boundaries of the state is a question to be determined by the legislative department. DeLoney v. State, 88 Ark. 311, 115 S.W. 138 (1908).

When the legislative department fixes the boundary of the state, the courts will not inquire into its authority to do so. State v. Bowman, 89 Ark. 428, 116 S.W. 896 (1909).

Cited: Mississippi v. Arkansas, 415 U.S. 289, 94 S. Ct. 1046, 39 L. Ed. 2d 333 (1974).

Article 2 Declaration of Rights

Research References

Am. Jur. 16A Am. Jur. 2d, Constitutional Law, § 400 et seq.

C.J.S. 16A C.J.S., Constitutional Law, § 721 et seq.

Case Notes

Implied Rights.

Implied rights under this article to travel, reside, and teach were not violated by school district residency policy. McClelland v. Paris Pub. Sch., 294 Ark. 292, 742 S.W.2d 907 (1988).

§ 1. Source of power.

All political power is inherent in the people and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same, in such manner as they may think proper.

Research References

Ark. L. Rev.

Jennifer R. Rovetti, Comment: Regnat Populus? Amending the Arkansas State Constitution After Forrester v. Martin, 66 Ark. L. Rev. 429 (2013).

Case Notes

In General.

The position of delegate to the Constitutional Convention is not derived from the Constitution, but from the power inherent in the people provided for in this section. Harvey v. Ridgeway, 248 Ark. 35, 450 S.W.2d 281 (1970).

Constitutional Conventions.

The one-person, one-vote principle does not apply to constitutional conventions. Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995).

Cited: Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85 (1968).

§ 2. Freedom and independence.

All men are created equally free and independent, and have certain inherent and inalienable rights; amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property, and reputation; and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

Research References

ALR.

Construction and Application of Parratt-Hudson Doctrine, Providing That Where Deprivation of Property Interest Is Occasioned by Random and Unauthorized Conduct of State Officials, Procedural Due Process Inquiry Is Limited to Issue of Adequacy of Postdeprivation Remedies Provided by State. 89 A.L.R.6th 1.

Restrictions on Ownership, Possession, or Sale of Weapons as Infringing Federal Constitutional Right to Travel. 3 A.L.R. Fed. 3d Art. 8 (2016).

Constitutional Claims of Persons Placed on Federal Government's No-Fly List or Other Terrorist Watch Lists. 5 A.L.R. Fed. 3d Art. 5 (2016).

Am. Jur. 16A Am. Jur. 2d, Constitutional Law, § 607 et seq.

Ark. L. Rev.

Gitelman and McIvor, Domicile, Residence and Going to School in Arkansas, 37 Ark. L. Rev. 843.

Note, Dupree v. Alma School District No. 30: Mandate for an Equitable State Aid Formula, 37 Ark. L. Rev. 1019.

Comment, Does Arkansas Code Section 5-14-122 Violate Arkansas's Constitutional Guarantee of Equal Protection?, 51 Ark. L. Rev. 521.

Lessons From Lake View: Some Questions and Answers from Lake View School District No. 25 v. Huckabee, 56 Ark. L. Rev. 519.

The New Judicial Federalism Takes Root in Arkansas, 58 Ark. L. Rev. 883.

Mark A. Fritsche, Case Note: Kimbrell v. McCleskey: Rethinking the Constitutional Equality Requirement for Funding Arkansas's Public Schools, 67 Ark. L. Rev. 723 (2014).

Brittany Renai King, Comment: Fired for Being Gay: Should Arkansas Ban This Form of Discrimination?, 67 Ark. L. Rev. 1019 (2014).

C.J.S. 16A C.J.S., Constitutional Law, § 721 et seq.

U. Ark. Little Rock L.J.

Sallings, Survey of Arkansas Law, 3 U. Ark. Little Rock L.J. 277.

Notes, Constitutional Law — Equal Protection and School Funding in Arkansas, Dupree v. Alma Sch. Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1953), 6 U. Ark. Little Rock L.J. 541.

U. Ark. Little Rock L. Rev.

Note: Constitutional Law — Privacy and Equal Protection — Arkansas Joins Other States in a Revival of State Constitutions as Guardians of Individual Rights, Establishing New Protections for Arkansas Gays and Lesbians, Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), 25 U. Ark. Little Rock L. Rev. 681.

Annual Survey of Caselaw, Constitutional Law, 25 U. Ark. Little Rock L. Rev. 908.

Note, Constitutional Law — Education and Equal Protection — Towards Intelligence and Virtue: Arkansas Embarks on a Court-Mandated Search for an Adequate and Equitable School Funding System. Lake View School District No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002), 26 U. Ark. Little Rock L. Rev. 143.

Funding the Education of Arkansas's Children: A Summary of the Problems and Challenges, 27 U. Ark. Little Rock L. Rev. 1.

Justice Robert L. Brown, A Judicial Retrospective: Significant Decisions by the Arkansas Supreme Court From 1991 Through 2011, 34 U. Ark. Little Rock L. Rev. 219 (2012).

Bettina Brownstein, Essay: Lake View — A Roadmap for Asserting the Rights of the Jailed Mentally Ill, 35 U. Ark. Little Rock L. Rev. 525 (2013).

Case Notes

Bulk Sales Law.

Act requiring purchaser of stock of goods in bulk to give notice to creditors before purchase does not violate Arkansas Constitution. Stuart v. Elk Horn Bank & Trust Co., 123 Ark. 285, 185 S.W. 263 (1916).

Constitutional Convention.

Statute which provided for a limited constitutional convention not ratified by the electorate was unconstitutional in that it would permit the delegates to such convention to exercise a power reserved to the electorate by this section without ratification by the electorate. Pryor v. Lowe, 258 Ark. 188, 523 S.W.2d 199 (1975).

Discriminatory Arrest.

Summary judgment was granted on plaintiff's Arkansas Civil Rights Act claims alleging unreasonable seizure and an equal protection violation because there was probable cause to arrest plaintiff for a violation of § 5-60-125, and plaintiff failed to provide evidence establishing discriminatory effect or purpose on the part of the officers. Ratliff v. City of Shannon Hills, 52 F. Supp. 3d 904 (E.D. Ark. 2014).

Discriminatory Regulations.

Statute regulating only coal mines employing ten or more men underground does not conflict with Arkansas Constitution securing liberty and equality of rights to all persons. McLean v. State, 81 Ark. 304, 98 S.W. 729 (1906), aff'd, 211 U.S. 539, 29 S. Ct. 206, 53 L. Ed. 315 (1909).

Statute permitting cities of first class to prohibit sale of merchandise by auction was held unconstitutional. Balesh v. City of Hot Springs, 173 Ark. 661, 293 S.W. 14 (1927).

Statute allowing discriminatory regulation of manufacture of ice was unconstitutional. Cap F. Bourland Ice Co. v. Frank Utils. Co., 180 Ark. 770, 22 S.W.2d 993 (1929).

Guest Statute.

Where any doubt about the constitutionality of the Guest Statute had to be resolved in favor of its constitutionality, the Supreme Court could not say that the statute had no fair and rational relation to the objectives of the legislature of preventing collusive lawsuits and encouraging hospitality and, therefore, the Guest Statute which denied recovery to a guest except for willful and wanton negligence was not violative of this section. Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980).

Long Arm Statute.

A statute giving the state courts personal jurisdiction over nonresident owners of real estate in the state in a cause of action arising from such ownership does not violate this section. Bowsher v. Digby, 243 Ark. 799, 422 S.W.2d 671 (1968).

Price Fixing.

Statute making agreement between individuals as to payment of wages unlawful was void as it applies to natural persons. Leep v. St. Louis, Iron Mountain & S. Ry., 58 Ark. 407, 25 S.W. 75, appeal dismissed, 159 U.S. 267, 15 S. Ct. 1042, 40 L. Ed. 142 (1894).

Statute fixing prices, wages, and hours for barber shops violates constitutional provisions as to acquisition of property. Noble v. Davis, 204 Ark. 156, 161 S.W.2d 189 (1942).

Private Hospitals.

A private hospital in an internal administrative proceeding is not subject to the reasonableness standards of equal protection and due process under this section and Const., Art. 2, § 3. Lubin v. Crittenden Hosp. Ass'n, 295 Ark. 429, 748 S.W.2d 663 (1988).

Property Rights.

The right of a retailer to sell its own property at its own price is a right guaranteed by the Constitution as a valuable property right. Union Carbide & Carbon Corp. v. White River Distributors, 224 Ark. 558, 275 S.W.2d 455 (1955).

Statute requiring nonsigners in lawful possession of trademarked articles to charge prices to their knowledge set in fair trade contracts with other retailers is unconstitutional as a deprivation of property without due process of law in abuse of the police power as not protecting the public welfare. Union Carbide & Carbon Corp. v. White River Distributors, 224 Ark. 558, 275 S.W.2d 455 (1955).

Collecting interest on taxpayers' delinquent tax obligations did not violate due process because the taxpayers were not denied the ability to contest the interest either administratively or by seeking judicial relief under the Arkansas Tax Procedure Act, § 26-18-101 et seq.Sanford v. Walther, 2015 Ark. 285, 467 S.W.3d 139 (2015).

Public Hospitals.

Public hospitals are prohibited from acting arbitrarily and capriciously under this section. Brandt v. St. Vincent Infirmary, 287 Ark. 431, 701 S.W.2d 103 (1985).

Public School Financing.

The statutory method of state financing of public schools and of state vocational funding, under which system the local tax base determined the amount of state funding received by a district and school districts were required to establish vocational programs with local funds before receiving state funds for such programs, violated the equal protection guarantees of this section. Dupree v. Alma Sch. Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983).

The school funding system in place between 1994 and 2000 violated the equality provisions of this section and Ark. Const., Art. 2, §§ 3 and 18, because the system did not ensure the equality of actual expenditures of funds spent on the students of each school district by the state; however, the state was given until January 1, 2004 to create a system that ensured equality of funding. Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002), cert. denied, 538 U.S. 1035, 123 S. Ct. 2097, 155 L. Ed. 2d 1066 (2003).

Right of Privacy.

The portion of an Arkansas statute criminalizing specific acts of private, consensual, sexual intimacy between persons of the same sex is unconstitutional as it infringes upon an individual's fundamental right to privacy. Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002).

Right to Acquire Property.

The requirement of notice to creditors by a purchaser of a stock of goods does not violate the right of acquiring property. Stuart v. Elk Horn Bank & Trust Co., 123 Ark. 285, 185 S.W. 263 (1916).

Right of individual to acquire and possess and protect property is inherent and inalienable and declared higher than any constitutional sanction. Young v. Gurdon, 169 Ark. 399, 275 S.W. 890 (1925).

Sex Offender Registration.

Section 12-12-919(a)(3), requiring lifetime registration as applied to defendant, did not violate his equal protection rights as there was a rational basis for treating sex offenders convicted under more than one case number differently than those convicted under a single case number. Individuals convicted of a subsequent sex offense under a second case number have committed more than one sex crime, and the General Assembly could have concluded that those individuals are more likely to reoffend; and the underinclusiveness of a particular provision does not make the provision unconstitutional. Ray v. State, 2017 Ark. App. 574, 533 S.W.3d 587 (2017).

Cited: Union Carbide & Carbon Corp. v. White River Distribs., Inc., 118 F. Supp. 541 (E.D. Ark. 1954); City of Little Rock v. Andres, 237 Ark. 658, 375 S.W.2d 370 (1964); Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989); Kastl v. State, 303 Ark. 358, 796 S.W.2d 848 (1990); Honor v. Yamuchi, 307 Ark. 324, 820 S.W.2d 267 (1991); Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998); Strother v. LaCroix Optical, 2013 Ark. App. 719 (2013).

§ 3. Equality before the law.

The equality of all persons before the law is recognized, and shall ever remain inviolate; nor shall any citizen ever be deprived of any right, privilege or immunity; nor exempted from any burden or duty, on account of race, color or previous condition.

Research References

ALR.

Constitutionality of assault and battery laws limited to protection of females only or which provide greater penalties for males than for females. 5 A.L.R.4th 708.

Race as factor in custody award or proceedings. 10 A.L.R.4th 796.

Statutory or constitutional provision allowing widow but not widower to take against will and receive interest, etc., as denial of equal protection. 18 A.L.R.4th 910.

Public utilities — validity of preferential rates for elderly or low-income persons. 29 A.L.R.4th 615.

Refusal to rent residential premises to persons with children as unlawful discrimination. 30 A.L.R.4th 1187.

Propriety of automobile insurer's policy of refusing insurance, or requiring advanced rates, because of age, sex, residence, or handicap. 33 A.L.R.4th 523.

Validity, construction, and application of state statute forbidding unfair trade practice or competition by discriminatory allowance of rebates, commissions, discounts, or the like. 41 A.L.R.4th 675.

Federal and state constitutional provisions as prohibiting discrimination in employment on basis of gay, lesbian, or bisexual sexual orientation or conduct. 96 A.L.R.5th 391.

Federal and state constitutional provisions and state statutes as prohibiting employment discrimination based on heterosexual conduct or relationship. 123 A.L.R.5th 411.

Application of Class-of-One Theory of Equal Protection to Public Employment. 32 A.L.R.6th 457.

Class-of-One Equal Protection Claims Based Upon Real Estate Development, Zoning, and Planning. 68 A.L.R.6th 229.

Class-of-One Equal Protection Claims Based upon Law Enforcement Actions. 86 A.L.R.6th 173.

Application of Equal Protection Principle Recognized in Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000), to Elections Cases. 104 A.L.R.6th 547 (2015).

Racial Profiling by Law Enforcement Officers in Connection with Traffic Stops as Infringement of Federal Constitutional Rights or Federal Civil Rights Statutes. 91 A.L.R. Fed. 2d 1 (2015).

Constitutional Claims of Persons Placed on Federal Government's No-Fly List or Other Terrorist Watch Lists. 5 A.L.R. Fed. 3d Art. 5 (2016).

Application of Federal Constitutional Guarantees or Federal Statutory Provisions to Discipline or Punishment of Students with Disabilities. 12 A.L.R. Fed. 3d Art. 1 (2016).

Am. Jur. 16B Am. Jur. 2d, Constitutional Law, § 823 et seq.

Ark. L. Rev.

Note, Divorce and the Division of Marital Property in Arkansas — Equal or Equitable?, 35 Ark. L. Rev. 671.

Gitelman and McIvor, Domicile, Residence and Going to School in Arkansas, 37 Ark. L. Rev. 843.

Note, Dupree v. Alma School District No. 30: Mandate for an Equitable State Aid Formula, 37 Ark. L. Rev. 1019.

Comment, Does Arkansas Code Section 5-14-122 Violate Arkansas's Constitutional Guarantee of Equal Protection?, 51 Ark. L. Rev. 521.

Lessons From Lake View: Some Questions and Answers from Lake View School District No. 25 v. Huckabee, 56 Ark. L. Rev. 519.

The New Judicial Federalism Takes Root in Arkansas, 58 Ark. L. Rev. 883.

LaToya J. Alexander, Case Note: Arkansas Department of Human Services v. Cole: Another Step Toward Same Sex Marriage in Arkansas?, 66 Ark. L. Rev. 527 (2013).

Mark A. Fritsche, Case Note: Kimbrell v. McCleskey: Rethinking the Constitutional Equality Requirement for Funding Arkansas's Public Schools, 67 Ark. L. Rev. 723 (2014).

Richard Albert, American Exceptionalism in Constitutional Amendment, 69 Ark. L. Rev. 217 (2016).

C.J.S. 16B C.J.S., Constitutional Law, § 1256 et seq.

U. Ark. Little Rock L.J.

Hawthorne, Note: Family Law — Divorce — Constitutionality of Arkansas Property Settlement and Alimony Statutes, 2 U. Ark. Little Rock L.J. 123.

Survey of Arkansas Law: Family Law, 4 U. Ark. Little Rock L.J. 213.

Notes, Constitutional Law — Equal Protection and School Funding in Arkansas, Dupree v. Alma Sch. Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1953), 6 U. Ark. Little Rock L.J. 541.

U. Ark. Little Rock L. Rev.

Note: Constitutional Law — Privacy and Equal Protection — Arkansas Joins Other States in a Revival of State Constitutions as Guardians of Individual Rights, Establishing New Protections for Arkansas Gays and Lesbians, Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), 25 U. Ark. Little Rock L. Rev. 681.

Annual Survey of Caselaw, Constitutional Law, 25 U. Ark. Little Rock L. Rev. 908.

Note, Constitutional Law — Education and Equal Protection — Towards Intelligence and Virtue: Arkansas Embarks on a Court-Mandated Search for an Adequate and Equitable School Funding System. Lake View School District No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002), 26 U. Ark. Little Rock L. Rev. 143.

Funding the Education of Arkansas's Children: A Summary of the Problems and Challenges, 27 U. Ark. Little Rock L. Rev. 1.

Bettina Brownstein, Essay: Lake View — A Roadmap for Asserting the Rights of the Jailed Mentally Ill, 35 U. Ark. Little Rock L. Rev. 525 (2013).

Case Notes

Bank Records.

This section was not violated by an order of the prosecuting attorney to a bank to appear before him and produce copies of records of a depositor's account. First Nat'l Bank v. Roberts, 242 Ark. 912, 416 S.W.2d 316 (1967).

Class Legislation.

Legislation which establishes classification does not carry with it the presumption of constitutionality under an equal protection challenge where the class it establishes is “suspect” and, in such situations, the state must demonstrate compelling interest for the legislation. Boshears v. Ark. Racing Comm'n, 258 Ark. 741, 528 S.W.2d 646 (1975).

Where a tobacco products manufacturer which did not participate in a settlement between states and tobacco companies alleged that an amendment to a statute implementing the settlement provided unequal treatment depending upon whether an entity participated or did not participate in the settlement, no equal protection violation was shown since the amendment bore a rational relationship to the state's interest in reducing the rate of smoking in the state. Dos Santos, S.A. v. Beebe, 418 F. Supp. 2d 1064 (W.D. Ark. 2006).

Discrimination.

There was no discrimination against the defendant in the selection of a special grand jury on the ground that all members of the grand jury belonged to a certain political faction where the evidence showed that the grand jury was fairly selected. Rowland v. State, 213 Ark. 780, 213 S.W.2d 370 (1948), cert. denied, 336 U.S. 918, 69 S. Ct. 641, 93 L. Ed. 1081 (1949).

Statute which purports to exempt certain types of litigation constitutes an unlawful classification within a class without reasonable relation and is discriminatory, and therefore unconstitutional. Bennett v. NAACP, 236 Ark. 750, 370 S.W.2d 79 (1963).

A gender-based classification which, as compared to the gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny. Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1979).

African-American defendant's Batson challenge failed where the state only used five of its six peremptory strikes and, in addition, the jury included at least one African-American. Ratliff v. State, 359 Ark. 479, 199 S.W.3d 79 (2004).

Defendant's arguments regarding a Batson v. Kentucky violation were not preserved for appellate review where defendant failed to offer any additional argument or other proof to rebut the state's and the trial court's race-neutral explanations and to show that the state's motives were not genuine, as was required during the third stage of the Batson process. Lewis v. State, 84 Ark. App. 327, 139 S.W.3d 810 (2004).

Police officer engaged in racial profiling prohibited by state statute, the state constitution, the U.S. Constitution, and the city's written policy and the officer also illegally seized one of the plaintiffs, thereby violating U.S. Const., Amend. IV and the state constitution; the police chief, who supervised the officer and ran the police department, was deliberately indifferent to ongoing and systemic racial profiling of which he was aware and municipal liability was imposed on the city as it permitted the officer to establish and to carry out a custom and practice of engaging in racial profiling. The officer's true objective was not to enforce traffic laws prohibiting people from driving with their vision obstructed or other minor infractions; rather, the neutral traffic laws were used as a pretext for harassing Hispanics (whether here legally or illegally), for obtaining money through fines and towing charges for the financially troubled city, and to provide an incentive for Hispanics to move out of the area—clearly illegitimate objectives. Giron v. City of Alexander, 693 F. Supp. 2d 904 (E.D. Ark. 2010).

Summary judgment was granted on plaintiff's Arkansas Civil Rights Act claims alleging unreasonable seizure and an equal protection violation because there was probable cause to arrest plaintiff for a violation of § 5-60-125, and plaintiff failed to provide evidence establishing discriminatory effect or purpose on the part of the officers. Ratliff v. City of Shannon Hills, 52 F. Supp. 3d 904 (E.D. Ark. 2014).

Divorce.

A divorce action brought under the former statute, which was undisputedly gender-based, was unconstitutional as violative of equal protection rights; however, the successor statute is gender-neutral and therefore constitutional. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980), overruled in part, Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984).

Fish and Game.

The statutes requiring commercial fishermen to throw back into the water small fish caught by them did not create such an arbitrary or illegal discrimination as to violate provisions of the Constitution when noncommercial fishermen are permitted to catch and consume such fish. Fugett v. State, 208 Ark. 979, 188 S.W.2d 641 (1945).

Guest Statute.

The Guest Statute which denied recovery to a guest except for willful and wanton negligence was not violative of this section. Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980).

Habitual Criminal Statute.

The habitual criminal statute did not violate the equal protection clause of the state Constitution. Poe v. State, 251 Ark. 35, 470 S.W.2d 818 (1971).

Highway Construction Regulation.

Order of highway department setting out certain requirements for construction of access driveways to state highways from abutting property, which applied only to new constructions and not to constructions completed prior thereto and required that those desiring to construct such a driveway obtain a permit, was not discriminatory under this section. Ark. State Hwy. Comm'n v. Hightower, 238 Ark. 569, 383 S.W.2d 279 (1964).

Initiative and Referendum.

Provisions of Acts 2013, No. 1413, which amended the form for a canvasser verification in § 7-9-109, including a requirement that the canvasser provide the canvasser's current residence address, do not violate the right to equal protection because the legislature put forth a rational basis for disparate treatment between paid and volunteer canvassers. McDaniel v. Spencer, 2015 Ark. 94, 457 S.W.3d 641 (2015).

Provisions of Acts 2013, No. 1413, which amended § 7-9-111 to add certain requirements concerning paid canvassers, did not violate the right of equal protection. McDaniel v. Spencer, 2015 Ark. 94, 457 S.W.3d 641 (2015).

Provisions of Acts 2013, No. 1413, codified at § 7-9-601, that prohibit a sponsor from providing money or anything of value to a canvasser unless the canvasser meets certain requirements, do not violate the right to equal protection under this section on the basis that the provisions treat paid canvassers differently than volunteer canvassers, as there is a rational basis for the differing treatment of paid canvassers. McDaniel v. Spencer, 2015 Ark. 94, 457 S.W.3d 641 (2015).

Law Practice Regulation.

Section was not violated by former provision giving nonresident attorneys the right to practice in this state where Tennessee attorney acted as associate counsel to resident attorneys in particular medical malpractice case. McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973).

Legitimacy of Children.

Statute creating a presumption of the legitimacy of a child born during a marriage does not discriminate against blacks. Brown v. Danley, 263 Ark. 480, 566 S.W.2d 385, cert. denied, 439 U.S. 983, 99 S. Ct. 572, 58 L. Ed. 2d 654 (1978).

Livestock Health Regulations.

Under federal schedule for payment of cattle required to be disposed of because of brucellosis, treating all beef cattle owners alike was valid. Burt v. Ark. Livestock & Poultry Comm'n, 278 Ark. 236, 644 S.W.2d 587 (1983).

Local Option.

Act granting licenses to sell liquor only upon petition of majority of adult white inhabitants of a city or town was not unconstitutional. Havis v. Philpot, 115 Ark. 250, 170 S.W. 1005 (1914).

Long Arm Statute.

A statute giving the state courts personal jurisdiction over nonresident owners of real estate in the state in a cause of action arising from such ownership does not violate this section. Bowsher v. Digby, 243 Ark. 799, 422 S.W.2d 671 (1968).

Medical Malpractice.

A legitimate state purpose is served by the notice requirement of statute governing actions for medical injuries and it is not unconstitutional. Simpson v. Fuller, 281 Ark. 471, 665 S.W.2d 269 (1984).

Section 16-114-206(b), which sets forth the burden of proof for plaintiffs in medical malpractice cases involving informed consent, is constitutional because there is a rational relationship between the burden of proof required and the achievement of a legitimate governmental objective; therefore, summary judgment was properly granted in favor of a physician who submitted an affidavit of an expert regarding proper standard of care because the patient failed to offer an affidavit from his own expert witness. Eady v. Lansford, 351 Ark. 249, 92 S.W.3d 57 (2002).

Statute of limitations in the Medical Malpractice Act, § 16-114-201 et seq., has a rational basis and it does not deprive a claimant of a constitutional right to a redress of wrongs or a jury trial, nor does it violate the right to equal protection. Davis v. Parham, 362 Ark. 352, 208 S.W.3d 162 (2005).

Where patient alleged that § 16-114-207 was violative of the Fourteenth Amendment to the United States Constitution and this section, but failed to raise her strict scrutiny argument before the circuit court, the Arkansas Supreme Court applied a rational basis test and determined that the statute was rationally related to the purposes of the legislature in enacting the statute. Whorton v. Dixon, 363 Ark. 330, 214 S.W.3d 225 (2005).

Pension Benefits.

Section 24-11-102 authorized a board of trustees of a policemen's pension to increase monthly benefits to current retirees by a fixed dollar amount, and the increases for the current retirees did not violate equal protection under this section because there was a rational basis for imposing them, a lack of cost of living increases. Bakalekos v. Furlow, 2011 Ark. 505, 385 S.W.3d 810 (2011).

Price Fixing.

Statute fixing prices at which liquor could be sold was a valid exercise of the police power and did not violate this section. Gipson v. Morley, 217 Ark. 560, 233 S.W.2d 79 (1950).

Private Hospitals.

A private hospital in an internal administrative proceeding is not subject to the reasonableness standards of equal protection and due process under this section and Const., Art. 2, § 2. Lubin v. Crittenden Hosp. Ass'n, 295 Ark. 429, 748 S.W.2d 663 (1988).

Property Rights.

Act denying aliens incapable of becoming citizens of United States and unprotected by treaty the right to acquire property was not in conflict with Arkansas Constitution. Applegate v. Lum Jung Luke, 173 Ark. 93, 291 S.W. 978 (1927).

Where testimony showed commercial use of property was the only way it had reasonable and satisfactory value, refusal to rezone property for such use was arbitrary, unlawful and discriminatory. City of Little Rock v. Gardner, 239 Ark. 54, 386 S.W.2d 923 (1965).

One who acquires a life estate by will or deed does not have the same right of partition or commutation as one who holds a life estate in land by virtue of dower or curtesy, and the owner of a life estate created by a will or deed is not denied equal protection of or equal rights under the law because of the different treatment. Staggs v. Staggs, 277 Ark. 315, 641 S.W.2d 29 (1982).

Public Hospitals.

Public hospitals are prohibited from acting arbitrarily and capriciously under this section. Brandt v. St. Vincent Infirmary, 287 Ark. 431, 701 S.W.2d 103 (1985).

Public School Financing.

The statutory method of state financing public schools and of state vocational funding, under which system the local tax base determined the amount of state funding received by a district and school districts were required to establish vocational programs with local funds before receiving state funds for such programs, violated this section. Dupree v. Alma Sch. Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983).

The school funding system in place between 1994 and 2000 violated the equality provisions of this section and Ark. Const., Art. 2, §§ 2 and 18, because the system did not ensure the equality of actual expenditures of funds spent on the students of each school district by the state; however, the state was given until January 1, 2004 to create a system that ensured equality of funding. Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002), cert. denied, 538 U.S. 1035, 123 S. Ct. 2097, 155 L. Ed. 2d 1066 (2003).

Redevelopment Law.

The “Urban Development Law”, § 14-169-601 et seq. and § 14-169-701 et seq., does not violate this section. Rowe v. Housing Auth., 220 Ark. 698, 249 S.W.2d 551 (1952).

Sex Offender Registration.

Section 12-12-919(a)(3), requiring lifetime registration as applied to defendant, did not violate his equal protection rights as there was a rational basis for treating sex offenders convicted under more than one case number differently than those convicted under a single case number. Individuals convicted of a subsequent sex offense under a second case number have committed more than one sex crime, and the General Assembly could have concluded that those individuals are more likely to reoffend; and the underinclusiveness of a particular provision does not make the provision unconstitutional. Ray v. State, 2017 Ark. App. 574, 533 S.W.3d 587 (2017).

Sodomy.

The portion of an Arkansas statute criminalizing specific acts of private, consensual, sexual intimacy between persons of the same sex is an unconstitutional violation of Arkansas's Equal Rights Amendment. Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002).

Special Legislation.

Statute punishing railroad employees for destroying stock killed by trains is not special legislation and is constitutional. Bannon v. State, 49 Ark. 167, 4 S.W. 655 (1887).

State Employees.

The statutes which make the workers' compensation commission a “claims commission” in connection with claims by state employees for injuries or death growing out of their employment by the state and provides that, in administering its duties in connection with such claims, the workers' compensation commission shall apply the compensation law as it relates to private industry, does not violate this section. Boshears v. Ark. Racing Comm'n, 258 Ark. 741, 528 S.W.2d 646 (1975).

Taxation.

Inheritance tax is laid upon privilege of succession and not subject to same provisions with respect to equality under this section as taxes levied upon property. State v. Handlin, 100 Ark. 175, 139 S.W. 1112 (1911).

A provision in the gasoline tax law that the tax on fuels purchased outside the state and used in the state shall be determined on the basis of five miles per gallon of distillate fuels, as applied to interstate bus companies that actually obtain 6.3 miles per gallon, is arbitrary, unreasonable, discriminatory, and violative of this section. Larey v. Continental S. Lines, Inc., 243 Ark. 278, 419 S.W.2d 610 (1967).

A tax which discriminates between mass communicators delivering substantially the same service is unconstitutional; thus, an act which levied a tax on cable television enterprises but did not tax the proceeds resulting from the “unscrambling” of satellite signals, a similar service, imposed a tax which cannot pass muster. Medlock v. Pledger, 301 Ark. 483, 785 S.W.2d 202 (1990), aff'd in part, reversed in part, Leathers v. Medlock, 499 U.S. 439, 111 S. Ct. 1438, 113 L. Ed. 2d 494 (1991).

Regardless of any asserted disparate treatment, the rational basis test is the analysis applicable to an equal protection challenge of tax legislation; in order for an appellate court to strike down a classification made by taxation legislation, the classification must be purely arbitrary and the discrimination must be invidious. Howard v. City of Ft. Smith, 311 Ark. 505, 845 S.W.2d 497 (1993).

The party attacking taxation legislation has the burden to negate every conceivable basis which might support it. Howard v. City of Ft. Smith, 311 Ark. 505, 845 S.W.2d 497 (1993).

With respect to taxation legislation, the due process analysis is the same as the equal protection analysis. Howard v. City of Ft. Smith, 311 Ark. 505, 845 S.W.2d 497 (1993).

Proration of tax for licenses issued in the last half of the tax year, but not the first half of the tax year, did not violate the equal protection or due process clauses of the U.S. (see U.S. Const. Amend. 14) and Arkansas Constitutions (see this section and Ark. Const., Art. 2, § 8). Howard v. City of Ft. Smith, 311 Ark. 505, 845 S.W.2d 497 (1993).

Tobacco product distributors' equal protection claims concerning § 26-57-261 were dismissed where distributors were not required to pay more for their Arkansas sales than would a participating manufacturer. Grand River Enters. Six Nations, Ltd. v. Beebe, 418 F. Supp. 2d 1082 (W.D. Ark. 2006).

Voting Rights.

Residents of an area which was in the process of being annexed to a city were not deprived of equal protection by not being allowed to vote in a municipal bond election held before the annexation became effective. Tanner v. City of Little Rock, 261 Ark. 573, 550 S.W.2d 177 (1977).

Workers' Compensation Benefits.

The refusal to retroactively apply an amendment to a child who had received death benefits under the preexisting section did not deprive him of equal protection since the law applied alike to all dependents as it existed at the date of the child's grandfather's death. Park v. Weyerhaeuser Co., 262 Ark. 668, 560 S.W.2d 226 (1978).

Workers' Compensation Commission erred in holding that § 11-9-522(f)(1) was constitutional where the statute created a ceasing point for permanently totally disabled (PTD) benefits so that older workers who were eligible for Social Security or retirement benefits were foreclosed from receiving PTD benefits for a legitimate work-related injury. There was no rational basis for such a distinction. Osborne v. Bekaert Corp., 97 Ark. App. 147, 245 S.W.3d 185 (2006).

Legislature had a rational and legitimate public purpose for distinguishing between mental and physical workers' compensation injuries under § 11-9-113(b)(1), limiting compensation for mental injuries to 26 weeks, because there was a greater potential for fraudulent claims being advanced for mental injuries, and permitting more extensive benefits for mental injuries would act as a disincentive for workers to devote themselves fully to psychological or psychiatric treatment and recovery. Therefore, § 11-9-113(b)(1) did not violate equal protection under this section. Pat Salmon & Sons, Inc. v. Pate, 2009 Ark. App. 272, 307 S.W.3d 46 (2009).

Cited: Republic Steel Corp. v. McCastlain, 240 Ark. 979, 403 S.W.2d 90 (1966); Goodloe v. Goodloe, 253 Ark. 550, 487 S.W.2d 593 (1972); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989); Kastl v. State, 303 Ark. 358, 796 S.W.2d 848 (1990); Bosworth v. Pledger, 305 Ark. 598, 810 S.W.2d 918; Medlock v. Pledger, 305 Ark. 610, 808 S.W.2d 785 (1991); Seyller v. Pierce & Co., 306 Ark. 474, 816 S.W.2d 577 (1991); Cook v. State, 321 Ark. 641, 906 S.W.2d 681 (1995); O'Neill v. State, 322 Ark. 299, 908 S.W.2d 637 (1995); Strother v. LaCroix Optical, 2013 Ark. App. 719 (2013).

§ 4. Right of assembly and of petition.

The right of the people peaceably to assemble, to consult for the common good; and to petition, by address or remonstrance, the government, or any department thereof, shall never be abridged.

Research References

ALR.

Validity and construction of “terroristic threat” statutes. 45 A.L.R.4th 949.

Validity, under state constitution, of private shopping center's prohibition or regulation of political, social, or religious expression or activity. 52 A.L.R.5th 195.

Validity of Restrictions Imposed during National Political Conventions Impinging Upon Rights to Freedom of Speech and Assembly under First Amendment. 46 A.L.R.6th 465.

Constitutional Claims of Persons Placed on Federal Government's No-Fly List or Other Terrorist Watch Lists. 5 A.L.R. Fed. 3d Art. 5 (2016).

Application of Federal Constitutional Guarantees or Federal Statutory Provisions to Discipline or Punishment of Students with Disabilities. 12 A.L.R. Fed. 3d Art. 1 (2016).

Am. Jur. 16A Am. Jur. 2d, Constitutional Law, § 554 et seq.

C.J.S. 16B C.J.S., Constitutional Law, § 1134 et seq.

Case Notes

Establishment of Right.

Police officer was entitled to qualified immunity on arrestee's claim for violation of the right to remonstrate; the lack of precedent made it clear that arrestee's right to remonstrate was not clearly established at the time of her arrest. Graham v. Cawthorn, 2013 Ark. 160, 427 S.W.3d 34 (2013).

Freedom of Association.

Order of court requiring association to produce records listing the names and addresses of officers and employees and records, files, papers, correspondence, deposit slips, canceled checks and reports, but did not require a production of the membership lists, was not void because the membership lists were privileged under the provisions of the constitution. NAACP v. State, 229 Ark. 840, 319 S.W.2d 33 (1958), cert. denied, 360 U.S. 909, 79 S. Ct. 1293, 3 L. Ed. 2d 1259 (1959).

Where evidence showed that disclosure of the membership list of the local branches of the National Association for the Advancement of Colored People would significantly interfere with the freedom of association of the members, local ordinance requiring submission of membership lists to city interfered with the freedom of speech and assembly and was unconstitutional. Bates v. City of Little Rock, 361 U.S. 516, 80 S. Ct. 412, 4 L. Ed. 2d 480 (1960).

Statute which provides that, if the attorney general of Arkansas should have reason to believe that any organization is attempting to defraud the state of Arkansas of its taxes, he is authorized to procure an ex parte order from any chancery court and have access to all of the files, records, correspondence and other data of said organization would act as a deterrent to the organization's right to freedom of association and, therefore, would be unconstitutional under the ruling of Bates v. City of Little Rock, 361 U.S. 516, 80 S. Ct. 412, 4 L. Ed. 2d 480 (1960), especially in view of the circumstances under which it was enacted. Bennett v. NAACP, 236 Ark. 750, 370 S.W.2d 79 (1963).

Initiative and Referendum.

Provisions of Acts 2013, No. 1413, codified at § 7-9-601, that prohibit a sponsor from providing money or anything of value to a canvasser unless the canvasser meets certain requirements, do not infringe on the right to engage in core political speech. McDaniel v. Spencer, 2015 Ark. 94, 457 S.W.3d 641 (2015).

Local Option.

Act providing for licenses to sell liquor granted only upon petition of majority of adult white inhabitants of a city or town does not violate this section. Havis v. Philpot, 115 Ark. 250, 170 S.W. 1005 (1914).

Loss of Competitive Advantage.

Tobacco product distributors' free speech claims related to § 26-57-261 were dismissed where the alleged infringement was the loss of competitive advantage under the old allocation scheme and such a loss could not be considered an unconstitutional burden on speech, regardless of whether the speech was commercial or political in nature. Grand River Enters. Six Nations, Ltd. v. Beebe, 418 F. Supp. 2d 1082 (W.D. Ark. 2006).

Sovereign Immunity.

Where former state employee alleged that he was terminated because he refused to violate the state policy to hire the most qualified individual for a position, and asserted claims under the Arkansas Whistle-Blower Act, § 21-1-601 et seq., and the federal and state constitutions, the circuit court erred when it found that sovereign immunity barred plaintiff's claims against the state officials in their individual capacities; in their individual capacities, the state officials did not enjoy the immunity granted to the State under Ark. Const., Art. 5, § 20. Harris v. Hutchinson, 2020 Ark. 3, 591 S.W.3d 778 (2020).

Because former employee's claims for injunctive relief were unquestionably legal claims against the State of Arkansas, sovereign immunity barred his claims under the Arkansas Whistle-Blower Act, § 21-1-601 et seq., and the state and federal constitutions against the state officials in their official capacities; and plaintiff's conclusory statements and bare allegations were insufficient to establish an illegal, unconstitutional, or ultra vires act such that sovereign immunity would not apply. Harris v. Hutchinson, 2020 Ark. 3, 591 S.W.3d 778 (2020).

§ 5. Right to bear arms.

The citizens of this State shall have the right to keep and bear arms, for their common defense.

Research References

ALR.

Validity of state statutes restricting right of aliens to bear arms. 28 A.L.R.4th 1096.

Construction and Application of United States Supreme Court Holdings in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) and McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) Respecting Second Amendment Right to Keep and Bear Arms, to State or Local Laws Regulating Firearms or Other Weapons. 64 A.L.R.6th 131.

Validity of State Gun Control Legislation Under State Constitutional Provisions Securing Right to Bear Arms — Convicted Felons. 85 A.L.R.6th 641.

Ark. L. Rev.

John Thomas Shepherd, Comment: Who Is the Arkansas Traveler?: Analyzing Arkansas's “Journey” Exception to the Offense of Carrying a Weapon, 66 Ark. L. Rev. 463 (2013).

U. Ark. Little Rock L.J.

Oliver, Rejecting the “Whipping-Boy” approach to tort law: Well-made handguns are not defective products, 14 U. Ark. Little Rock L.J. 1.

Case Notes

In General.

Right to bear arms refers to arms used for purposes of war and legislature may prohibit wearing of such weapons as are not used in civilized warfare and would not contribute to the common defense. Fife v. State, 31 Ark. 455 (1876).

The legislature may regulate somewhat the mode and occasion of wearing war arms, but the prohibition of a citizen wearing or carrying a war arm, except upon his own premises, or on a journey, or when acting as or in aid of an officer, is an unwarranted restriction of a constitutional right. Wilson v. State, 33 Ark. 557 (1878).

Concealed Weapons.

Statute making the wearing of concealed weapons a penal offense was not contrary to the Constitution of the United States or of the State of Arkansas. State v. Buzzard, 4 Ark. 18 (1842) (decision under prior Constitution).

Act prohibiting wearing or carrying any pistol such as is used in the army or navy of the United States in any manner except uncovered and in the hand, save under special circumstances, was constitutional. Haile v. State, 38 Ark. 564 (1882).

Statute prohibiting carrying of pistol as weapon refers to pocket pistols of a size to be concealed about the person and used in private quarrels. State v. Wardlaw, 43 Ark. 73 (1884).

Preservation for Review.

Although appellant argued that § 5-73-103(a)(3) was void for vagueness, deprived him of due process, and violated the Second Amendment and this section, these points were not raised below and ruled on by the circuit court, and the Supreme Court did not reach the merits of appellant's arguments. Gooch v. State, 2015 Ark. 227, 463 S.W.3d 296 (2015).

Sale.

Act making the sale of any pistol except such as are used in the army or navy of the United States and known as the navy pistol a misdemeanor was constitutional. Dabbs v. State, 39 Ark. 353 (1882).

§ 6. Liberty of the press and of speech — Libel.

The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions, is one of the invaluable rights of man; and all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse of such right. In all criminal prosecutions for libel, the truth may be given in evidence to the jury; and, if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party charged shall be acquitted.

Research References

ALR.

Validity and construction of state statute or ordinance prohibiting picketing, parading, demonstrating, or appearing in public while masked or disguised. 2 A.L.R.4th 1241.

Validity and construction of statutes or ordinances prohibiting profanity or profane swearing or cursing. 5 A.L.R.4th 956.

Validity and construction of statutes or ordinances prohibiting or restricting distribution of commercial advertising to private residences. 12 A.L.R.4th 851.

Validity, propriety, and effect of allowing or prohibiting media's broadcasting, recording, or photographing court proceedings. 14 A.L.R.4th 121.

Statutes, ordinances, or regulations prohibiting or regulating advertising of intoxicating liquors. 20 A.L.R.4th 600.

Propriety of order forbidding news media from publishing names and addresses of jurors in criminal case. 36 A.L.R.4th 1126.

State trespass prosecution for unauthorized entry or occupation, for public demonstration purposes, of business, industrial, or utility premises. 41 A.L.R.4th 773.

Validity and construction of “terroristic threat” statutes. 45 A.L.R.4th 949.

Validity, under state constitution, of private shopping center's prohibition or regulation of political, social, or religious expression or activity. 52 A.L.R.5th 195.

First Amendment challenges to display of religious symbols on public property. 107 A.L.R.5th 1.

First Amendment protection afforded to comic books, comic strips, and cartoons. 118 A.L.R.5th 213.

First Amendment Protection Afforded to Blogs and Bloggers. 35 A.L.R.6th 407.

Validity of Restrictions Imposed during National Political Conventions Impinging Upon Rights to Freedom of Speech and Assembly under First Amendment. 46 A.L.R.6th 465.

Constitutionality, Construction, and Application of Statute or Regulatory Action Respecting Political Advertising — Print Media Cases. 51 A.L.R.6th 359.

Restrictive Covenants or Homeowners' Association Regulations Restricting or Prohibiting Flags, Signage, or the Like on Homeowner's Property as Restraint on Free Speech. 51 A.L.R.6th 533.

Constitutionality, Construction, and Application of Statute or Regulatory Activity Respecting Political Advertising — Nonprint Media Cases, or Cases Implicating Both Print and Nonprint Media. 53 A.L.R.6th 491.

When Does Use of Pepper Spray, Mace, or Other Similar Chemical Irritants Constitute Violation of Constitutional Rights. 65 A.L.R.6th 93.

Construction and Application of Supreme Court's Holding in Citizens United v. Federal Election Com'n, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), That Government May Not Prohibit Independent and Indirect Corporate Expenditures on Political Speech. 65 A.L.R.6th 503.

Constitutionality of Restricting Public Speech in Street, Sidewalk, Park, or Other Public Forum — Characteristics of Forum. 70 A.L.R.6th 513.

Constitutionality of Restricting Public Speech in Street, Sidewalk, Park, or Other Public Forum — Manner of Restriction. 71 A.L.R.6th 471.

Constitutional Challenges to Compelled Speech — General Principles. 72 A.L.R.6th 513.

Constitutional Challenges to Compelled Speech — Particular Situations or Circumstances. 73 A.L.R.6th 281.

Criminal and Civil Liability of Civilians and Police Officers Concerning Recording of Police Actions. 84 A.L.R.6th 89.

Expectation of Privacy in and Discovery of Social Networking Web Site Postings and Communications. 88 A.L.R.6th 319.

Provisions of Divorce, Child Custody, or Child Support Orders as Infringing on Federal or State Constitutional Guarantees of Free Speech. 2 A.L.R.7th Art. 6 (2015).

Invasion of Privacy by Use of Plaintiff’s Name or Likeness in Advertising — First Amendment Cases. 15 A.L.R.7th Art. 6 (2015).

Liability Arising from Blocking or Ranking Web Sites by Internet Search Engines. 16 A.L.R.7th Art. 9 (2016).

Construction and Application of Establishment Clause of First Amendment — U.S. Supreme Court Cases. 15 A.L.R. Fed. 2d 573.

First Amendment Protection for Members of Military Subjected to Discharge, Transfer, or Discipline Because of Speech. 40 A.L.R. Fed. 2d 229.

Application of First Amendment's “Ministerial Exception” or “Ecclesiastical Exception” to Federal Civil Rights Claims. 41 A.L.R. Fed. 2d 445.

Application of First Amendment in School Context — Supreme Court Cases. 57 A.L.R. Fed. 2d 1.

First Amendment Protection for School Principals Subjected to Demotion, Transfer, or Reassignment Because of Speech. 4 A.L.R. Fed. 3d Art. 5 (2016).

University Code or Policy Forbidding Speech or Conduct that is Offensive, Degrading, or the Like as Violative of First Amendment Rights. 13 A.L.R. Fed. 3d Art. 2 (2016).

Construction and Application of Reed v. Town of Gilbert, Ariz., Providing that Speech Regulation Targeted at Specific Subject Matter Is Content-Based Even if It Does Not Discriminate Among Viewpoints Within that Subject Matter, 24 A.L.R.7th Art. 6 (2018).

Am. Jur. 16A Am. Jur. 2d, Constitutional Law, § 465 et seq.

Ark. L. Rev.

The Present Status of the “Clear and Present Danger” Test as Applied to Freedom of Speech, 4 Ark. L. Rev. 52.

Legal Liability of the Exercise of Free Speech, 10 Ark. L. Rev. 155.

Torts — Defamation — Fair Comment as a Defense, 16 Ark. L. Rev. 310.

Notes, KARK-TV v. Simon: The Current Status of the “Fair Report” Privilege in Arkansas, 38 Ark. L. Rev. 181.

Notes, The Free Press-Fair Trial Controversy: A New Standard for Closure Motions in Criminal Proceedings, 38 Ark. L. Rev. 403.

Note, The Law of Defamation: An Arkansas Primer, 42 Ark. L. Rev. 915.

The New Judicial Federalism Takes Root in Arkansas, 58 Ark. L. Rev. 883.

Richard Albert, American Exceptionalism in Constitutional Amendment, 69 Ark. L. Rev. 217 (2016).

C.J.S. 16B C.J.S., Constitutional Law, § 918 et seq.

U. Ark. Little Rock L.J.

Survey of Arkansas Law: Constitutional Law, 4 U. Ark. Little Rock L.J. 179.

Note, Constitutional Law — Anti-Bias Crime Legislation and the First Amendment — Supreme Court Upholds Wisconsin's Penalty Enhancement Law, Wisconsin v. Mitchell, 113 S. Ct. 2194, 508 U.S. 476, 124 L. Ed. 2d 436 (1993), 16 U. Ark. Little Rock L.J. 659.

Note, Constitutional Law — Commercial Speech — Face-to-Face Solicitation by Certified Public Accountants (But Not Attorneys?) is Protected Speech Under the First Amendment, 16 U. Ark. Little Rock L.J. 683.

Note, Constitutional Law — First Amendment and Freedom of Speech — Public Employers Must Conduct a Reasonable Investigation to Determine if an Employee's Speech is Protected Before Discharging the Employee Based Upon the Speech. Waters v. Churchill, 114 S. Ct. 1878, 511 U.S. 661, 128 L. Ed. 2d 686 (1994), 18 U. Ark. Little Rock L.J. 463.

U. Ark. Little Rock L. Rev.

Justice Robert L. Brown, A Judicial Retrospective: Significant Decisions by the Arkansas Supreme Court From 1991 Through 2011, 34 U. Ark. Little Rock L. Rev. 219 (2012).

Case Notes

Crime Reporting.

Where defendant was charged with four counts of rape which were committed in the Quapaw Quarter of Little Rock during the summer of 1978, the trial court could not enjoin a newspaper from referring to the accused as the “Quapaw Quarter rapist” in news stories published prior to the trial. Ark. Gazette Co. v. Lofton, 269 Ark. 109, 598 S.W.2d 745 (1980).

Criminal Proceedings.

Disclosure of the suppliers of execution drugs was not required under Ark. Const., Art. 2, § 6, where the current supplier of the drugs agreed to provide them only on the condition of anonymity, that supplier was no longer inclined to sell the drugs to the Arkansas Department of Correction, and thus, disclosing the information was actually detrimental to the process. Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346 (2016), cert. denied, 137 S. Ct. 1067, 197 L. Ed. 2d 235 (2017).

Appellate court applied strict scrutiny to defendant's claim that § 5-14-110(a)(1) violated his right to free speech where the texts and social media posts between defendant when he was age 18 and a 14-year-old were not in the record, and there was no recent case law finding that written descriptions of sexual acts constitute unprotected obscenity. Worsham v. State, 2019 Ark. App. 65, 572 S.W.3d 1 (2019).

Application of § 5-14-110(a)(1) to defendant under the stipulated facts was unconstitutionally overbroad in suppressing his fundamental right to engage in expression protected by the First Amendment and Ark. Const., Art. 2, § 6, by punishing speech about lawful activity. The State could have achieved its goal of protecting minors in a more narrowly tailored way by prohibiting sex between an 18-year-old and a 14-year-old, especially given that a prior version of the statute criminalized only solicitations of sexual conduct that otherwise would have been illegal. Worsham v. State, 2019 Ark. App. 65, 572 S.W.3d 1 (2019).

Federal Law.

This section and § 16-85-510 would not shield a television network from a federal grand jury subpoena to turn over video footage and the transcript of an interview with a witness who refused to testify before the grand jury; state law privileges are inapplicable in such a situation. In re Grand Jury Subpoena ABC, 947 F. Supp. 1314 (E.D. Ark. 1996).

Free Press.

Numerous instances have arisen wherein attorneys are appointed to represent indigent prisoners and the attorney has been embarrassed by seeing his name in print relative to the defense made, though no wrongful act had been committed by the attorney, but under our system of government and its democratic processes, a free press is assured, and a conditional privilege is accorded to newspaper reports of judicial proceedings. Roberts v. Love, 231 Ark. 886, 333 S.W.2d 897, cert. denied, 364 U.S. 825, 81 S. Ct. 64, 5 L. Ed. 2d 55 (1960).

Any restraint on the freedom of the press, even though narrow in scope and duration, is subject to the closest scrutiny and will be upheld only upon a clear showing that an exercise of this right presents a clear and imminent threat to the fair administration of justice. Ark. Gazette Co. v. Lofton, 269 Ark. 109, 598 S.W.2d 745 (1980).

To force a privately owned newspaper to publish articles written by its reporters against their editorial judgment would be to advance the First Amendment rights of the reporter over the free press rights granted to the newspaper. Manson v. Little Rock Newspapers, Inc., 42 F. Supp. 2d 856 (E.D. Ark. 1999), aff'd, 200 F.3d 1172 (8th Cir. 2000).

There is nothing that proscribes the press from reporting events that transpire in a courtroom; once a public hearing has been held, what transpired there cannot be subject to prior restraint. Helena Daily World v. Simes, 365 Ark. 305, 229 S.W.3d 1 (2006).

Court granted newspaper's petition for a writ of certiorari directing the judge to dissolve an injunction that prevented newspaper from reporting testimony given in open court in a case involving a dispute between a mayor and a city council as the restraining order was too broad and was an unconstitutional prior restraint on the press. Helena Daily World v. Simes, 365 Ark. 305, 229 S.W.3d 1 (2006).

Gag Orders.

A gag order in a juvenile proceeding was too broad and constituted a prior restraint of the media where (1) the order restrained the publication of photographs of the juvenile and his family, but such photographs had already been published prior to the issuance of the gag order, (2) the order prohibited the publication of pictures of the defendant's family and the victim's family, but did not define “families,” and (3) the order prohibited the publication of pictures of any juvenile entering or leaving the courts building. Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000).

Loss of Competitive Advantage.

Tobacco product distributors' free speech claims related to § 26-57-261 were dismissed where the alleged infringement was the loss of competitive advantage under the old allocation scheme and such a loss could not be considered an unconstitutional burden on speech, regardless of whether the speech was commercial or political in nature. Grand River Enters. Six Nations, Ltd. v. Beebe, 418 F. Supp. 2d 1082 (W.D. Ark. 2006).

Membership Lists.

Order of court requiring association to produce records listing the names and addresses of officers and employees and records, files, papers, correspondence, deposit slips, canceled checks and reports, but did not require a production of the membership lists, was not void because the membership lists were privileged under the provisions of the constitution. NAACP v. State, 229 Ark. 840, 319 S.W.2d 33 (1958), cert. denied, 360 U.S. 909, 79 S. Ct. 1293, 3 L. Ed. 2d 1259 (1959).

Where evidence showed that disclosure of the membership list of the local branches of the National Association for the Advancement of Colored People would significantly interfere with the freedom of association of the members, local ordinance requiring submission of membership lists to city interfered with the freedom of speech and assembly and was unconstitutional. Bates v. City of Little Rock, 361 U.S. 516, 80 S. Ct. 412, 4 L. Ed. 2d 480 (1960).

Picketing.

The right to picket is not identical with the right to freedom of speech. Sheet Metal Workers Int'l Ass'n Local No. 249 v. Daniels Plumbing & Heating Co., 223 Ark. 48, 264 S.W.2d 597 (1954).

Qualified Immunity.

Mayor was entitled to summary judgment on police chief's claim under the Arkansas Civil Rights Act of 1993, § 16-123-101 et seq., because the mayor was entitled to qualified immunity; the mayor could not have reasonably known that his termination of the police chief's employment, which was done upon the discovery of missing or incomplete police reports 15 days after the police chief made a statement at a city council meeting, would violate the police chief's constitutional right to free speech under this section. Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005).

Retaliation.

Former university employee's free speech retaliation claim under § 16-123-105 and this section failed because the employee's filing of sexual harassment complaints against co-workers did not constitute protected speech; the employee was merely responding to sexual harassment allegations made against the employee by the co-workers, and the employee filed the complaints in an effort to avoid termination rather than as a matter of public concern. McCullough v. Univ. of Ark. for Med. Sciences, 559 F.3d 855 (8th Cir. 2009).

Cited: Rome v. Ahlert, 231 Ark. 844, 332 S.W.2d 809 (1960); Weston v. State, 258 Ark. 707, 528 S.W.2d 412 (1975); Shiras v. Britt, 267 Ark. 97, 589 S.W.2d 18 (1979); Eaton v. Supreme Court of Arkansas, 270 Ark. 573, 607 S.W.2d 55 (1980); Wammack v. City of Batesville, 522 F. Supp. 1006 (E.D. Ark. 1981); Lemmer v. Arkansas Gazette Co., 620 F. Supp. 1332 (E.D. Ark. 1985); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989).

§ 7. Jury trial — Right to — Waiver — Civil cases — Nine jurors agreeing.

The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law; and in all jury trials in civil cases, where as many as nine of the jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury, provided, however, that where a verdict is returned by less than twelve jurors all the jurors consenting to such verdict shall sign the same. [As amended by Const. Amend. 16.]

A.C.R.C. Notes. As amended by Ark. Const. Amend. 16, Article 2, § 7 contained a second paragraph which read: “This amendment to the Constitution of Arkansas shall be self-executing and require no enabling act, but shall take and have full force and effect immediately upon its adoption by the electors of the State.”

Publisher's Notes. Before amendment, this section read: “The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases, in the manner prescribed by law.”

Cross References. Jury trial of right, Ark. R. Civ. P. 38.

Number of jurors — Verdict, Ark. R. Civ. P. 48.

Right to Trial by Jury, Ark. R. Crim. P. 31.1 - 31.5.

Trial by jury or by the court, Ark. R. Civ. P. 39.

Research References

ALR.

Adequacy of defense counsel's representation of criminal client regarding right to and incidents of jury trial. 3 A.L.R.4th 601.

Waiver, after not guilty plea, of jury trial in felony case. 9 A.L.R.4th 695.

Authority of state court to order jury trial in civil case where jury has been waived or not demanded by parties. 9 A.L.R.4th 1041.

Validity of agreement, by stipulation or waiver in state civil case, to accept verdict by number or proportion of jurors less than that constitutionally permitted. 15 A.L.R.4th 213.

Right of accused, in state criminal trial, to insist, over prosecutor's or court's objection, on trial by court without jury. 37 A.L.R.4th 304.

Waiver of jury trial as binding on later state civil trial. 48 A.L.R.4th 747.

Right to jury trial in child neglect, child abuse, or termination of parental rights proceedings. 102 A.L.R.5th 227.

Validity and application of computerized jury selection practice or procedure. 110 A.L.R.5th 329.

Construction and Application of Re-examination Clause of Seventh Amendment. 10 A.L.R.7th Art. 1 (2015).

Ark. L. Rev.

Arkansas' Judiciary: Its History and Structure, 18 Ark. L. Rev. 152.

Constitutional Law — The Six Man Jury in Federal Court, 28 Ark. L. Rev. 270.

Note, Shockley v. State: The Constitutionality of the Arkansas Habitual Offender Determination Procedure, 39 Ark. L. Rev. 553.

Comment, Peremptory Challenge: Striking Down Discrimination in Arkansas's Jury Selection Process, 59 Ark. L. Rev. 93.

Note, Constitutional Law — Twelve Angry People. Arkansas Constitution Guarantees Right to Trial by Jury of Twelve Persons in Criminal Cases. Byrd v. State, 317 Ark. 609, 879 S.W.2d 435 (1994), 18 U. Ark. Little Rock L.J. 489.

State ex rel. Ohio Academy of Trial Lawyers v. Sheward: Will the Right to A Jury Trial Remain Inviolate?, 53 Ark. L. Rev. 931 (2000).

First National Bank of Dewitt v. Cruthis: An Analysis of the Right to a Jury Trial in Arkansas After the Merger of Law and Equity, 60 Ark. L. Rev. 563.

Richard Albert, American Exceptionalism in Constitutional Amendment, 69 Ark. L. Rev. 217 (2016).

U. Ark. Little Rock L.J.

Survey of Arkansas Law: Constitutional Law, 4 U. Ark. Little Rock L.J. 179.

Survey — Constitutional Law, 10 U. Ark. Little Rock L.J. 129.

Sullivan, The Need for a Business or Payroll Records Affidavit for Use in Child Support Matters, 11 U. Ark. Little Rock L.J. 651.

Seventeenth Annual Survey of Arkansas Law — Constitutional Law, 17 U. Ark. Little Rock L.J. 450.

U. Ark. Little Rock L. Rev.

The Right to Trial by Jury in Arkansas After Merger of Law and Equity, 24 U. Ark. Little Rock L. Rev. 649.

Josh Burk, Essay: A Torahic Case Against SJR8, 40 U. Ark. Little Rock L. Rev. 121 (2017).

Case Notes

In General.

This section prevents the General Assembly from giving the Claims Commission exclusive jurisdiction of tort claims against state employees or officers for their unlawful acts. Grimmett v. Digby, 267 Ark. 192, 589 S.W.2d 579 (1979).

The constitutional right to trial by jury does not secure the right in all possible instances but only in those cases in which it existed when the constitution was framed; it extends only to the trial of issues of fact in civil and criminal causes. Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979).

The constitutional right to trial by jury does not secure the right in all possible instances but only in those cases that were so triable at common law. Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987); McClanahan v. Gibson, 296 Ark. 304, 756 S.W.2d 889 (1988).

After the enactment of Ark. Const. Amend. 80, the clean-up doctrine was abolished in Arkansas. Instead, in deciding whether a claim should be submitted to a judge as an equitable matter or to a jury as a legal matter, a circuit court must review the historical nature of the claim and consider the remedies sought. Tilley v. Malvern Nat'l Bank, 2017 Ark. 343, 532 S.W.3d 570 (2017).

Construction.

The right to a jury trial set out in Ark. Const., Art. 2, § 7 is unaffected by Ark. Const. Amend. 80, as section 7 does not assure the right to a jury trial in all possible instances, but rather in those cases where the right to a jury trial existed when the constitution was framed; further, the right to a jury trial does not apply to new rights created by the legislature since the adoption of the Arkansas Constitution. First Nat'l Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005).

Abatement of Nuisance.

The legislature may dispense with jury trial in proceedings for the summary abatement of public nuisances. Kirkland v. State, 72 Ark. 171, 78 S.W. 770 (1904).

Administrative Orders.

The question as to reasonableness of an order of the Railroad Commission (now the Public Service Commission) is one of law for the court, and not for the jury. St. Louis, Iron Mountain & S. Ry. v. State, 99 Ark. 1, 136 S.W. 938 (1911).

The Unemployment Compensation Act providing for court review and the method of appeal is not violative of the constitutional provision for trial by jury. McKinley v. R.L. Payne & Son Lumber Co., 200 Ark. 1114, 143 S.W.2d 38 (1940).

The circuit court erred in submitting the city civil service commission's order demoting police chief to a jury over appellant's objection. Civil Serv. Comm'n v. Matlock, 205 Ark. 286, 168 S.W.2d 424 (1943).

Appeal from County Court.

Where a jury could not have been demanded in a county court in the suit of a claim against the county, it was improper to submit the case to a jury of an appeal from the disallowance of the claim by the county court. Hempstead County v. Hope Bridge Co., 132 Ark. 412, 200 S.W. 983 (1918).

Appeal from District Court.

Because defendant failed to file a certified record of the district court proceedings on his driving while intoxicated trial with the circuit court clerk within 30 days of the district court judgment, as required by Ark. R. Crim. P. 36(b), the circuit court had no jurisdiction over his appeal, even though defendant's right to jury trial was thereby lost. Roberson v. State, 2010 Ark. 433 (2010).

Attorney's Liens.

Former attorney's lien statute did not unconstitutionally deprive one of the right of trial by jury since constitutional right of trial by jury applied only to rights that existed at common law before the adoption of the constitution and did not apply to new rights created by the legislature since the adoption of the constitution. Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987), superseded by statute as stated in, Salmon v. Atkinson, 355 Ark. 325, 137 S.W.3d 383 (2003).

Closing Argument.

The prosecutor's expressions, characterizing defendant as a mad dog, an escape risk, a threat to the jurors' safety if the death sentence was not imposed, and implying that a life sentence, in effect, would require taxpayers to underwrite huge costs and would constitute an improper compromise and violation of the jurors' oath, implicated defendant's Eighth Amendment right by not only minimizing the jury's duty and responsibility, but injecting irrelevant factors into the jury's decision-making responsibility. Miller v. Lockhart, 861 F. Supp. 1425 (E.D. Ark. 1994), aff'd, 65 F.3d 676 (8th Cir. 1995).

Conflict of Laws.

The employee of a Louisiana corporation, injured in Arkansas and a resident of the state at the time of his injury, is not required to accept compensation for his injuries under the Louisiana act, since he would be deprived of his right to trial by jury under the Arkansas Constitution by the extra-territorial effect of the Louisiana act. Haynes Drilling Corp. v. Smith, 200 Ark. 1098, 143 S.W.2d 27 (1940).

Contempt.

A party is not entitled to trial by jury in contempt proceedings. Neel v. State, 9 Ark. 259 (1849) (decision under prior Constitution).

Counterclaims.

Although the right to a jury trial does not extend to foreclosure claims, the claims in the borrower's counterclaim and third-party complaint were legal in nature, and thus the circuit court erred in finding that the borrower did not have a constitutional right to a jury trial on those claims. Tilley v. Malvern Nat'l Bank, 2017 Ark. 343, 532 S.W.3d 570 (2017).

Court Rules.

The bifurcation of a personal injury trial, pursuant to Ark. R. Civ. P. 42, on the issues of liability and damages does not deprive the plaintiffs of their right to a jury trial. Hunter v. McDaniel Constr. Co., 274 Ark. 178, 623 S.W.2d 196 (1981).

The Constitution is not violated by Ark. R. Civ. P. 38, governing jury trial of right. Venable v. Becker, 287 Ark. 236, 697 S.W.2d 903 (1985).

The procedure for waiver of a jury in a criminal matter is set out in Ark. R. Crim. P. 31.2. Burton v. State, 327 Ark. 65, 937 S.W.2d 634 (1997).

Directed Verdict.

Direction of verdict when the evidence is undisputed and unimpeached does not deny right to trial by jury. Darden v. State, 80 Ark. 295, 97 S.W. 449 (1906); Roberts v. State, 84 Ark. 564, 106 S.W. 952 (1907).

Where plaintiff in action on promissory note moved for directed verdict and court denied the motion, whereupon defendant also moved for a directed verdict, the trial court erred in taking the case away from the jury and deciding it in favor of plaintiff. Bussey v. Bank of Malvern, 270 Ark. 37, 603 S.W.2d 426 (Ct. App. 1980).

Election Contest.

Legislature may dispense with jury trial in case of contested elections. Govan v. Jackson, 32 Ark. 553 (1877); Wise v. Martin, 36 Ark. 305 (1880); Wheat v. Smith, 50 Ark. 266, 7 S.W. 161 (1887).

Although there was no common law right to a jury trial in usurpation-of-office cases where the plaintiff merely requested ouster of the alleged usurper, plaintiff has a constitutional right under this section to a jury trial if he also made a claim for fees or emoluments. Hopper v. Garner, 328 Ark. 516, 944 S.W.2d 540 (1997).

Equitable Claims.

The right of trial by jury extends to all cases in which legal rights are to be ascertained and determined in contradistinction to those where equitable rights alone were recognized and equitable remedies administered. Ashley v. City of Little Rock, 56 Ark. 391, 19 S.W. 1058 (1892).

In case involving an approval of a trust accounting, two beneficiaries were not entitled to a jury trial under this section because the relief sought was equitable in nature. Moreover, the question of an accounting could not have been submitted to a jury as if it was a suit for the recovery of money. In re Estates of McKnight v. Bank of Am., N.A., 372 Ark. 376, 277 S.W.3d 173 (2008).

Amendment 80 to the Arkansas Constitution, which merged the chancery and circuit courts, did not alter or expand a party's right to trial by jury. Stokes v. Stokes, 2016 Ark. 182, 491 S.W.3d 113 (2016).

Circuit court properly adjudicated a son's claims because the right to a jury trial did not attach; the circuit court properly disposed of both issues–setting aside the deed and an accounting of the farm expenses–as equitable claims. Stokes v. Stokes, 2016 Ark. 182, 491 S.W.3d 113 (2016).

After the enactment of Ark. Const. Amend. 80, the clean-up doctrine was abolished in Arkansas. Tilley v. Malvern Nat'l Bank, 2017 Ark. 343, 532 S.W.3d 570 (2017).

Terminated doctor did not have a constitutional right to a jury trial for a claim alleging that the hospital failed to comply with its bylaws as the doctor would be only entitled to equitable relief on that claim. Williams v. Baptist Health, 2019 Ark. App. 482, 587 S.W.3d 275 (2019), review granted, 2019 Ark. LEXIS 387 (Dec. 19, 2019), vacated, 2020 Ark. 350, 598 S.W.3d 487 (2020).

Fair and Impartial Trial.

Because a juror prematurely decided defendant's guilt before hearing all the evidence and being instructed on the law, defendant's rights to a fair and impartial trial were violated; consequently, the circuit court erred in allowing the juror to remain on the jury. Conway v. State, 2012 Ark. 420 (2012).

Legal Issues.

Where issues are purely legal, the parties are entitled by constitutional right to trial by jury. Weaver v. Ark. Nat'l Bank, 73 Ark. 462, 84 S.W. 510 (1904).

In litigation brought by a secondary beneficiary over the administration of several family trusts, the circuit court erred by denying plaintiff a jury trial on his legal claims (breach of fiduciary duty, conversion, fraud and concealment, and conspiracy); the clean-up doctrine has been abolished in Arkansas. Plaintiff was not entitled to a jury trial on his equitable claims (removal of trustee and injunctive relief). Dawson v. Stoner-Sellers, 2019 Ark. 410, 591 S.W.3d 299 (2019).

Local Option.

Proceeding under local option law is not a case for a jury trial. Williams v. Citizens, 40 Ark. 290 (1883).

Municipal Court.

There is no right to a jury trial in municipal court, except the right remains inviolate when pursued on appeal to circuit court. Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989).

Number of Jurors.

In misdemeanors, by agreement of parties, a defendant may be tried by less than twelve jurors. Warwick v. State, 47 Ark. 568, 2 S.W. 335 (1886).

The jury must consist of twelve jurors unless the legal number is waived. Western Union Tel. Co. v. Philbrick, 189 Ark. 1082, 76 S.W.2d 97 (1934).

Where motion to dismiss appeal, treated as certiorari, brought up the original verdict signed by nine of the jurors, judgment was affirmed though judgment as presented by appellant, copied in the face of the judgment, showed that it was signed by only eight jurors. Cartwright v. Barnett, 192 Ark. 206, 90 S.W.2d 485 (1936).

It is not error on a charge of manslaughter to be tried by a jury of eleven men where appellant not only agreed in open court to a jury of eleven, but made no objections, saved no exceptions, and did not assign this as error in his motion for a new trial. Ford v. State, 222 Ark. 16, 257 S.W.2d 30 (1953).

Where a case was submitted to the jury on interrogatories and the answer to one was signed by eight jurors and one other as “foreman,” the word “foreman” following the signature of such party was mere surplusage and the foreman would not be required to sign again on the assumption that he had signed merely as foreman; the answer was therefore signed by necessary nine jurors. Sullivan v. Fanestiel, 229 Ark. 662, 317 S.W.2d 713 (1958).

The answer to each interrogatory in special verdicts is to be considered as a separate verdict on that particular issue of fact, and where as many as any nine of the jurors agree upon the finding as to the particular fact in issue, such agreement constitutes the verdict of the jury on such issue. McChristian v. Hooten, 245 Ark. 1045, 436 S.W.2d 844 (1969).

This section requires that at least nine jurors sign a verdict if it is less than unanimous; if it is unanimous, only the foreman must sign. Center v. Johnson, 295 Ark. 522, 750 S.W.2d 396 (1988).

Defendant was deprived of her right to be tried by a twelve-member jury for charges of disorderly conduct and refusal to submit to arrest because she was tried by a jury composed of only six members. Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995).

Denial of defendant's motion for a mistrial was appropriate because he invited the alleged error. If he had not agreed to start his trial without alternate jurors, then the circuit court could have seated some when the trial began; defendant had to have known that his second cousin had been seated as a juror and yet he let the matter go until she was dismissed. Marshall v. State, 102 Ark. App. 175, 283 S.W.3d 597 (2008).

Probate.

A trial by jury, in the probate court, of exceptions to an account, is not contemplated by law. Crow v. Reed, 38 Ark. 482 (1882).

By statute, a claimant against the estate of a decedent is entitled to a jury trial. Chipman v. Perdue, 135 Ark. 559, 205 S.W. 892 (1918).

Property Title Actions.

A party in possession, claiming title adversely, is entitled to have his claim tried at law by jury. Ashley v. City of Little Rock, 56 Ark. 391, 19 S.W. 1058 (1892).

The constitutional right to a jury trial is limited to those cases which were so triable at common law; thus, a defendant in a mortgage foreclosure proceeding did not have a right to a jury trial at common law. Colclasure v. Kansas City Life Ins. Co., 290 Ark. 585, 720 S.W.2d 916 (1986), cert. denied, 481 U.S. 1069, 107 S. Ct. 2462, 95 L. Ed. 2d 871 (1987).

Because an action was a quiet title action, rather than an action for ejectment, no constitutional right to a jury trial was present. Nicholson v. Upland Indus. Dev. Co., 2012 Ark. 326, 422 S.W.3d 108 (2012).

Punishment.

Statutes permitting the court to fix the punishment under certain circumstances are not unconstitutional. Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960).

This section and Ark. Const., Art. 2, §§ 10 and 21 are not to be interpreted to prevent a court from fixing punishment in certain cases. Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988).

Questions of Fact.

Where the amount to be recovered by the plaintiff is a disputed question of fact, it is the exclusive province of the jury to determine it, as the court cannot substitute its judgment for that of the jury upon a disputed question of fact. Womack v. Brickell, 232 Ark. 385, 337 S.W.2d 655 (1960).

Quo Warranto and Mandamus.

The proceedings of quo warranto and mandamus are civil proceedings against a public officer and the right to trial by jury does extend to such proceedings. State v. Johnson, 26 Ark. 281 (1870) (decision under former Constitution).

Recovery of Money.

A defendant attorney is entitled to a jury trial in statutory summary proceeding by a client to recover money received by the attorney. Davies & Davies v. Patterson, 132 Ark. 484, 201 S.W. 504 (1917).

Relationship to Workers’ Compensation Law.

Under the state constitutional rights to a jury trial (this section) and to the redress of wrongs (Const., Art. 2, § 13), and the Workers' Compensation Law, an employee injured by the negligence of a third party is entitled to have a jury determine the issue of causation, as well as any other factual issues; thus, the trial court erred in giving preclusive effect to the Workers' Compensation Commission's determination on the issue of causation. Craven v. Fulton Sanitation Serv., 361 Ark. 390, 206 S.W.3d 842 (2005).

Replevin.

Defendant, in replevin action for two mules, is entitled to trial by jury regardless of the amount involved. Stark v. Couch, 109 Ark. 534, 160 S.W. 853 (1913).

Sanity Hearings.

Constitution does not guarantee trial by jury in sanity hearing, as trial by jury was not required in sanity hearings at common law. Scherz v. Peoples Nat'l Bank, 214 Ark. 796, 218 S.W.2d 86 (1949).

Signatures.

Failure of juror to sign the verdict form must be objected to at trial to preserve the issue for appeal. Carroll Elec. Coop. Corp. v. Carlton, 319 Ark. 555, 892 S.W.2d 496 (1995), overruled in part on other grounds, Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004).

Finding in favor of the spouse that a pharmacist incorrectly filled the decedent's prescription resulting in his death was proper where the supreme court declined to infer that merely because the verdict was signed by 9 of 12 jurors, it was given under the influence of passion or prejudice. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003).

Specific Cases.

There is no constitutional right to a jury trial in bastardy cases, therefore, the provisions of § 9-10-106 [repealed] providing that trials in bastardy proceedings in circuit court be conducted without a jury, are constitutional. Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987).

Under this section and Ark. R. Crim. P. 31.1 and Ark. R. Crim. P. 31.2, a defendant charged under § 5-65-205 has the right to a jury trial, and to the extent that § 5-65-205(c) prevents a defendant from having a jury determination, it is unconstitutional. Medlock v. State, 328 Ark. 229, 942 S.W.2d 861 (1997) (decision under prior law).

Summary Judgment.

Ark. R. Civ. P. 56 was not unconstitutional as it did not deny the patient her right to a jury trial where there were no factual disputes; instead, there were differing legal interpretations of undisputed facts. Scamardo v. Sparks Reg'l Med. Ctr., 375 Ark. 300, 289 S.W.3d 903 (2008).

There were no disputed facts that warranted proceeding to a jury trial; the circuit court determined as a matter of law that the city had an affirmative defense to the employee's whistle-blower claim in that his termination was the result of his violating departmental rules and policies. As the circuit court reasoned, the employee should not be allowed to force the city to prove that misconduct yet again. Barrows v. City of Fort Smith, 2010 Ark. 73, 360 S.W.3d 117 (2010).

Tax Assessments.

A statutory appeal by a property owner from an assessment is not entitled to be heard by a jury. Missouri Pac. R.R. v. Conway County Bridge Dist., 134 Ark. 292, 204 S.W. 630 (1918).

Tort Actions.

In a tort case in circuit court, there is a right to trial by jury regardless of the amount in controversy. McClanahan v. Gibson, 296 Ark. 304, 756 S.W.2d 889 (1988).

While former version of § 16-17-704 does provide for the concurrent jurisdiction, nothing in Acts 1987, No. 431 suggests an intent by the legislature to abrogate the constitutional right to a trial by jury in tort actions triable in circuit court. To the contrary, § 16-17-703, which deals with appeals from municipal court, clearly demonstrates the legislature's concern that the right secured by this section of the constitution not be diminished. McClanahan v. Gibson, 296 Ark. 304, 756 S.W.2d 889 (1988) (decision under prior law).

In a wrongful death suit brought against a medical center, a husband was not unconstitutionally denied his right to a jury trial under this section, because no factual issues existed as to whether the medical center was entitled to governmental and charitable immunity. Anglin v. Johnson Reg'l Med. Ctr., 375 Ark. 10, 289 S.W.3d 28 (2008).

Waiver, Civil Cases.

Defendant claiming actual possession waives constitutional right to have issue of possession tried by jury by going to trial without demand of jury in suit in equity to remove a cloud upon title. Love v. Bryson, 57 Ark. 589, 22 S.W. 341 (1893).

Statutory provision that failure to appear and defend constituted a waiver of the right to a trial by jury was not a denial to defendant of his right to a trial by jury; this provision of the Constitution investing in the legislature the authority to determine what acts on the part of a litigant constituted a waiver of the right to a jury trial. Mode v. Barnett, 235 Ark. 641, 361 S.W.2d 525 (1962).

Plaintiff was not deprived of a jury trial where she authorized her attorney to settle suit arising out of an automobile collision, but attempted to change her mind after the case was removed from the trial docket, since she waived a formal trial by authorizing the settlement. Veasey v. Joshlin, 257 Ark. 422, 516 S.W.2d 596 (1974).

Where both parties had agreed to a nonjury trial at a pretrial conference, and about two months later and about one month prior to trial defendant sought a jury trial to which plaintiff objected, the trial court did not abuse its discretion in denying a jury. Housing Auth. v. E.W. Johnson Constr. Co., 264 Ark. 523, 573 S.W.2d 316 (1978).

Procedural rules governing jury trials are not intended to diminish the right to a jury trial and should be interpreted so as not to give effect to dubious waivers of rights. Bussey v. Bank of Malvern, 270 Ark. 37, 603 S.W.2d 426 (Ct. App. 1980).

In litigation brought by a secondary beneficiary over the administration of several family trusts, plaintiff did not waive his jury trial argument because he requested a jury trial in his petition and, under Ark. R. Civ. P. 38, no more was required; further, plaintiff was not estopped due to his request for appointment of a master because he did not make that request until after the circuit court ruled against a jury trial. Dawson v. Stoner-Sellers, 2019 Ark. 410, 591 S.W.3d 299 (2019).

Arbitration agreements governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., constitute “a manner prescribed by law” in which one may waive the right to a jury trial; the language concerning waiver in Ark. Const. Art. 2, § 7, is not limited to a “manner prescribed by Arkansas law.” BHC Pinnacle Pointe Hosp., LLC v. Nelson, 2020 Ark. 70, 594 S.W.3d 62 (2020).

Waiver, Criminal Cases.

Constitution grants the right to trial by jury, but it also provides that a jury trial may be waived by the parties in all cases in the manner prescribed by law. Moore v. State, 241 Ark. 335, 407 S.W.2d 744 (1966).

The use of the words “sentencing court” in an act was intended to refer either to the judge or the jury, and the factual issue of the use of a firearm is to be determined by the jury unless a jury has been waived; therefore, the section does not contravene the constitutional right to a trial by jury. Redding v. State, 254 Ark. 317, 493 S.W.2d 116 (1973).

Where the defendant was never made aware either by the trial court or his attorney that the choice confronting him was, on the one hand, to be tried by jury of his peers or, on the other hand, to have his guilt or innocence determined by the judge, the defendant was deprived of sufficient information to make a knowing and intelligent waiver of the right to a jury trial. Williamson v. Lockhart, 636 F. Supp. 1298 (E.D. Ark. 1986).

Presuming waiver of right to a jury trial from a silent record is impermissible; the record must demonstrate or evidence disclose that a defendant knowingly, intelligently, and understandingly waived his or her right to a jury trial and anything less is not waiver. Williamson v. Lockhart, 636 F. Supp. 1298 (E.D. Ark. 1986).

The trial court complied with this section by setting defendant's case for trial by jury even though defendant failed to appear at trial and, therefore, was precluded from exercising that right. Rischar v. State, 307 Ark. 429, 821 S.W.2d 25 (1991).

The Constitution expresses the only manner in which the right to a jury trial can be lost, that is, by waiver, and waiver is an intentional relinquishment of a known right; therefore, the constitutional right to a jury trial cannot be lost by forfeiture, it can only be waived. Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992).

The State Constitution and Rules of Criminal Procedure assume a defendant will be tried by a jury unless that right is expressly waived, and the law providing the manner of waiver is designed to assure that the jury trial right is not forfeited by inaction on the part of a defendant. Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992).

The language of Ark. R. Crim. P. 31.3 that allows the defendant's attorney to waive a jury trial is consistent with § 16-89-103, which states that a defendant's presence is not required in misdemeanor cases. Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993).

Where defendant's counsel stated in open court, on the record, and in defendant's presence, that defendant waived a jury trial and specifically asked the trial court to hear the case, the defendant “personally” waived a jury trial in compliance with Ark. R. Crim. P. 31.2 and this section. Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993).

The “manner prescribed by law” for waiver is set out in Ark. R. Crim. P. 31.1 through 31.3. Reaser v. State, 47 Ark. App. 7, 883 S.W.2d 851 (1994).

Defendant's failure to respond to a notice of trial setting, which advised that the court was to be notified 48 hours in advance if a jury trial was requested, did not constitute a waiver of a jury trial. Reaser v. State, 47 Ark. App. 7, 883 S.W.2d 851 (1994).

When construing this section together with Ark. R. Crim. P. 31.2, the law is clear that the only way a defendant may waive the jury trial right is by personally making an express declaration in writing or in open court and that the record of open court proceedings where the defendant waives his or her right must be preserved. Hill v. State, 47 Ark. App. 44, 883 S.W.2d 857 (1994).

Waiver of jury trial in judge's chambers satisfied the “open court” requirement of Ark. R. Crim. P. 31.2 where defendant requested a hearing in the judge's chambers because defendant did not want the jury panel to overhear, and thus be prejudiced by, defendant's statements regarding his reluctance to have his case tried to a jury; once in chambers, defendant made it absolutely clear that he wished to have his case tried to the circuit judge and not the jury because he feared a jury would “automatically” conclude he was guilty and “railroad” him, and, after the trial court admonished defendant that he was “giving up one of the most precious rights that anybody has in this country,” defendant concluded that he wanted to take his chances with the trial judge. Burton v. State, 327 Ark. 65, 937 S.W.2d 634 (1997).

Defendant did not waive her right to a jury trial by signing an “Acknowledgment” document in which defendant stated that she had been advised by counsel that it would be in her best interest to accept the plea bargain agreement, but had declined to do so, and that she wished to go forward with her right to a bench trial; the “Acknowledgment” was obviously not prepared for the express purpose of waiving a jury trial and contained too casual a reference to constitute an express, knowing, intelligent, and voluntary waiver of such a fundamental and important constitutional right. McCoy v. State, 60 Ark. App. 306, 962 S.W.2d 822 (1998).

Where there was no evidence that defendant was informed by the court of his right to be tried by a jury or that he executed a knowing, voluntary, and intelligent waiver of his rights, defendant was deprived of his constitutional right to a trial by jury. Davis v. State, 81 Ark. App. 17, 97 S.W.3d 921 (2003).

In a felony non-support case, where counsel requested a jury trial at the pretrial hearing but the case proceeded as a bench trial, the appellate court held that defendant was denied his right to a jury trial as the record was silent as to whether defendant had knowingly, intelligently, and understandingly waived his right to a jury trial. Burrell v. State, 90 Ark. App. 114, 204 S.W.3d 80 (2005).

Dismissal of defendant's appeal of his conviction in the city court was improper as the dismissal would waive defendant's right to a jury trial, which he did not waive; defendant neither personally made an express declaration in writing or in open court, nor did counsel make the waiver in open court in the presence of the defendant. Ayala v. State, 365 Ark. 192, 226 S.W.3d 766 (2006).

Trial court's standard practice of requiring a defendant to request a jury at least 48 hours before trial was not in accordance with the Arkansas Constitution or the Arkansas Rules of Criminal Procedure; the notice requirement put a defendant in the position of forfeiting his or her right to a jury trial due to inaction. Swindle v. State, 373 Ark. 519, 285 S.W.3d 200 (2008), cert. denied, 556 U.S. 1127, 129 S. Ct. 1616, 173 L. Ed. 2d 994 (2009).

Trial court erred in finding that defendant had waived his right to a jury trial where there was no specific acknowledgement by defendant that he understood the right that was waived by his attorney and no indication in the record that the trial court made any attempt to ensure that defendant knowingly, intelligently, and voluntarily waived the right. Guana-Lopez v. State, 2014 Ark. App. 204 (2014).

Waiver Clauses.

Predispute contractual jury waivers are unenforceable under the Arkansas Constitution. The right to a jury trial is a fundamental, constitutional right that is protected by the Arkansas Constitution, and a jury trial cannot be waived before litigation begins. Tilley v. Malvern Nat'l Bank, 2017 Ark. 343, 532 S.W.3d 570 (2017).

Withdrawal of Waiver, Criminal Cases.

It was not an abuse of discretion by the court to refuse on the day of trial to permit the withdrawal of a waiver of jury trial made some six months before. Scates v. State, 244 Ark. 333, 424 S.W.2d 876 (1968).

Trial court abused its discretion in denying defendant's request to withdraw his waiver of his right to be tried by a jury under the United States and Arkansas Constitutions because the trial court apparently did not consider anything other than the fact that defendant had already waived his right to a jury trial; neither the trial court's order nor its oral explanation from a subsequent pretrial hearing mentioned timeliness, delay, or inconvenience. The motion to withdraw was filed less than 2 weeks after defendant's waiver, almost a month before a scheduled bench trial, and over 2 months from the date that the trial actually occurred. McCall v. State, 2016 Ark. App. 300, 495 S.W.3d 91 (2016).

Cited: Cairo & Fulton R.R. v. Trout, 32 Ark. 17 (1877); First Nat'l Bank v. Reinman, 93 Ark. 376, 125 S.W. 443 (1910); Minnequa Cooperage Co. v. Hendricks, 130 Ark. 264, 197 S.W. 280 (1917); Davis v. H.A. Nelson & Son, 132 Ark. 436, 201 S.W. 511 (1918); Wells Fargo & Co. Express v. Alexander, 133 Ark. 600, 199 S.W. 84 (1918); Montgomery County v. Cearley, 192 Ark. 868, 95 S.W.2d 554 (1936); Mitchell v. State, 229 Ark. 469, 317 S.W.2d 1 (1958); Rome v. Ahlert, 231 Ark. 844, 332 S.W.2d 809 (1960); Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960); Harrell v. City of Conway, 296 Ark. 247, 753 S.W.2d 542 (1988); Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991); State v. Roberts, 321 Ark. 31, 900 S.W.2d 175 (1995); Cook v. State, 321 Ark. 641, 906 S.W.2d 681 (1995); State v. Webb, 323 Ark. 80, 913 S.W.2d 259 (1996); Granquist v. Randolph, 326 Ark. 809, 934 S.W.2d 224 (1996); Murdock v. Slater, 326 Ark. 1067, 935 S.W.2d 540 (1996); Johnson v. State, 328 Ark. 526, 944 S.W.2d 115 (1997); SEECO, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997); Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003); Crawford v. Cashion, 2010 Ark. 124, 361 S.W.3d 268 (2010).

§ 8. Criminal charges — Self-incrimination — Due process — Double jeopardy — Bail.

No person shall be held to answer a criminal charge unless on the presentment or indictment of a grand jury, except in cases of impeachment or cases such as the General Assembly shall make cognizable by justices of the peace, and courts of similar jurisdiction; or cases arising in the army and navy of the United States; or in the militia, when in actual service in time of war or public danger; and no person, for the same offense, shall be twice put in jeopardy of life or liberty; but if, in any criminal prosecution, the jury be divided in opinion, the court before which the trial shall be had, may, in its discretion, discharge the jury, and commit or bail the accused for trial, at the same or the next term of said court; nor shall any person be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty or property, without due process of law. All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.

Cross References. Former prosecution for different offense, § 5-1-113.

Former prosecution for same offense, § 5-1-112.

Former prosecution in another jurisdiction, § 5-1-114.

Former prosecutions that are not affirmative defenses, § 5-1-115.

Jurisdiction of courts for certain offenses generally, § 16-88-101.

Prosecution by indictment or information, Ark. Const. Amend. 21, § 1.

Release on money bail, Ark. R. Crim. P. 9.2.

Research References

ALR.

Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury. 3 A.L.R.4th 374.

Propriety of court's dismissing indictment or prosecution because of failure of jury to agree after successive trials. 4 A.L.R.4th 1274.

Admissibility in criminal case of blood alcohol test where blood was taken despite defendant's objection or refusal to submit to test. 14 A.L.R.4th 690.

Retrial on greater offense following reversal of plea-based conviction of lesser offense. 14 A.L.R.4th 970.

What constitutes “manifest necessity” for prosecutor's dismissal of action, allowing subsequent trial despite jeopardy's having attached. 14 A.L.R.4th 1014.

Propriety and prejudicial effect of prosecution's calling as witness, to extract claim of self-incrimination privilege, one involved in offense charged against accused. 19 A.L.R.4th 368.

Validity and application of statute authorizing forfeiture of use or closure of real property from which obscene materials have been disseminated or exhibited. 25 A.L.R.4th 395.

Contempt finding as precluding substantive criminal charges relating to same transaction. 26 A.L.R.4th 950.

Admissibility in criminal case of evidence that accused refused to take blood tests. 26 A.L.R.4th 1112.

Right of defendant to bail pending appeal from conviction. 28 A.L.R.4th 227.

Extent and determination of attorney's right or privilege against self-incrimination in disbarment or other disciplinary proceedings — post-Spevack cases. 30 A.L.R.4th 243.

Effect on liability of bail bond surety of state's delay in obtaining indictment or bringing defendant to trial. 32 A.L.R.4th 600.

Failure to object to improper questions or comments as to defendant's pretrial silence or failure to testify as constituting waiver of right to complain of error — modern cases. 32 A.L.R.4th 774.

Impeachment of defendant in criminal case by showing defendant's pre-arrest silence — state cases. 35 A.L.R.4th 731.

Money, forfeiture to state or local authorities based on its association with or proximity to other contraband. 38 A.L.R.4th 496.

Former jeopardy as bar to retrial of criminal defendant after original trial court's sua sponte declaration of mistrial. 40 A.L.R.4th 741.

Limitations of state prosecuting attorney's discretion to initiate prosecution by indictment or by information. 44 A.L.R.4th 401.

Failure of state prosecutor to disclose fingerprint evidence as violating due process. 94 A.L.R.5th 393.

Failure of state prosecutor to disclose exculpatory ballistic evidence as violating due process. 95 A.L.R.5th 611.

Sufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs — Drugs or narcotics administered as part of medical treatment and drugs or intoxicants administered by the police. 96 A.L.R.5th 523.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts — Modern view. 97 A.L.R.5th 201.

Application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) to state death penalty proceedings. 110 A.L.R.5th 1.

Failure of state prosecutor to disclose existence of plea bargain or other deals with witness as violating due process. 12 A.L.R.6th 267.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — At Suspect's or Third Party's Residence. 28 A.L.R.6th 505.

What Constitutes “Custodial Interrogation” of Adult by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation — At Police Station or Sheriff's Office, Where Defendant Voluntarily Appears or Appears at Request of Law Enforcement Personnel, or Where Unspecified as to Circumstances Upon Which Defendant Is Present. 29 A.L.R.6th 1.

What Constitutes “Custodial Interrogation” at Hospital by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — Suspect Hospital Patient. 30 A.L.R.6th 103.

What Constitutes “Custodial Interrogation” at Hospital by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His Federal Constitutional Rights Before Custodial Interrogation — Suspect Hospital Visitor, Not Patient. 31 A.L.R.6th 465.

What Constitutes “Custodial Interrogation” of Adult by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation — At Police Station or Sheriff's Office, Where Defendant Is Escorted or Accompanied by Law Enforcement Personnel, or Is Otherwise at Station or Office Involuntarily. 32 A.L.R.6th 1.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — At Police Vehicle, Where Defendant Outside, but in Immediate Vicinity. 34 A.L.R.6th 1.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — At Police Vehicle, Where Defendant in Moving Vehicle, or Where Unspecified as to Whether Vehicle Moving or Stationary. 35 A.L.R.6th 127.

What Constitutes “Custodial Interrogation” Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation — In Jail or Prison. 38 A.L.R.6th 97.

Application of Stigma-Plus Due Process Claims to Education Context. 41 A.L.R.6th 391.

Propriety of Using Otherwise Inadmissible Statement, Taken in Violation of Miranda Rule, to Impeach Criminal Defendant's Credibility — State Cases. 42 A.L.R.6th 237.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation — Upon Hotel Property. 45 A.L.R.6th 337.

Suppression of Statements Made during Police Interview of Non-English-Speaking Defendant. 49 A.L.R.6th 343.

Construction and Application of Consent-Once-Removed Doctrine, Permitting Warrantless Entry Into Residence by Law Enforcement Officers for Purposes of Effectuating Arrest or Search Where Confidential Informant or Undercover Officer Enters with Consent and Observes Criminal Activity or Contraband in Plain View. 50 A.L.R.6th 1.

What Constitutes “Custodial Interrogation” Within Rule of Requiring That Suspect Be Informed of His Federal Constitutional Rights Before Custodial Interrogation — Private Security Guards, Detectives, or Police. 51 A.L.R.6th 219.

Failure of State Prosecutor to Disclose Exculpatory Physical Evidence as Violating Due Process — Weapons. 53 A.L.R.6th 81.

Failure of State Prosecutor to Disclose Exculpatory Physical Evidence as Violating Due Process — Personal Items Other Than Weapons. 55 A.L.R.6th 391.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — At Nonpolice Vehicle for Traffic Stop, Where Defendant Outside, But in Immediate Vicinity of Vehicle, or Where Unspecified as to Whether Inside or Outside of Nonpolice Vehicle. 55 A.L.R.6th 513.

Failure of State Prosecutor to Disclose Exculpatory Physical Evidence as Violating Due Process — Evidence Other Than Weapons or Personal Items. 56 A.L.R.6th 185.

When Does Use of Pepper Spray, Mace, or Other Similar Chemical Irritants Constitute Violation of Constitutional Rights. 65 A.L.R.6th 93.

What Constitutes “Custodial Interrogation” Within Rule of Requiring that Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — At Border or Functional Equivalent of Border. 68 A.L.R.6th 607.

Criminal Defendant's Right to Electronic Recordation of Interrogations and Confessions. 69 A.L.R.6th 579.

Adequacy of Defense Counsel's Representation of Criminal Client Regarding Search and Seizure Issues — Pretrial Motions — Suppression Motions Where No Warrant Involved. 71 A.L.R.6th 1.

Adequacy of Defense Counsel's Representation of Criminal Client Regarding Search and Seizure Issues — Pretrial Motions — Suppression Motions Where Warrant Was Involved. 72 A.L.R.6th 1.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for the Truth — Underlying Homicide and Assault Offenses. 72 A.L.R.6th 437.

Adequacy of Defense Counsel's Representation of Criminal Client Regarding Search and Seizure Issues — Pretrial Motions — Motions Other than for Suppression. 73 A.L.R.6th 1.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for Truth — Underlying Drug Offenses. 73 A.L.R.6th 49.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for the Truth — Underlying Sexual Offenses. 74 A.L.R.6th 69.

Construction and Application by State Courts of Supreme Court's Ruling in Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), That Defense Counsel Has Obligation to Advise Defendant That Entering Guilty Plea Could Result in Deportation. 74 A.L.R.6th 373.

Fifth Amendment Privilege Against Self-Incrimination as Applied to Compelled Disclosure of Password or Production of Otherwise Encrypted Electronically Stored Data. 84 A.L.R.6th 251.

School's Violation of Student's Substantive Due Process Rights by Suspending or Expelling Student. 90 A.L.R.6th 235.

What Constitutes Accused's Consent to Court's Discharge of Jury or to Grant of Motion for Mistrial Which Will Constitute Waiver of Former Jeopardy Plea — Silence or Failure to Object or Protest. 103 A.L.R.6th 137 (2015).

Witness’s Identification of Criminal Defendant, as Person in Photograph Shown by Police, as Resulting from Impermissibly Suggestive Circumstances, as Matter of Federal Constitutional Law, Where Police Showed Single Witness Fewer than Six Photographs in One Session. 1 A.L.R.7th Art. 6 (2015).

Clothing Worn by Criminal Defendant in Photograph in Array Shown by Police to Witness as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant, as Person in Photograph, Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 2 A.L.R.7th Art. 2 (2015).

Distinctive Quality of Criminal Defendant’s Photograph in Array Shown by Police to Witness as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant, as Person in Photograph, Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 3 A.L.R.7th Art. 5 (2015).

Criminal Defendant’s Hair Color or Style as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 5 A.L.R.7th Art. 5 (2015).

Adequacy, Under Strickland Standard, of Defense Counsel’s Representation of Client in Sentencing Phase of State Court Death Penalty Case — Counsel’s Purported Complete Failure to Investigate Client’s Mental Illness or Dysfunction. 6 A.L.R.7th Art. 3 (2015).

Criminal Defendant’s Race or Skin Color as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 6 A.L.R.7th Art. 5 (2015).

Criminal Defendant’s Facial Hair as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 7 A.L.R.7th Art. 4 (2015).

Manner in which Photographic Array Shown by Police to Witness Is Displayed, or Police Officer’s Alleged Nonverbal Cues, as Factor in Determination of Whether Circumstances of Witness’s Identification of Criminal Defendant, as Person in Photograph within Array, Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 8 A.L.R.7th Art. 5 (2015).

Police Statement, Other than One that Photographic Array Shown to Witness Contained or Might Contain Criminal Suspect or Known Criminal, as Factor in Determination of Whether Circumstances of Witness’s Identification of Criminal Defendant, as Person in Photograph Within Array, Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 9 A.L.R.7th Art. 3 (2015).

Witness’s Identification of Criminal Defendant, as Person in Photograph Shown by Police, as Resulting from Impermissibly Suggestive Circumstances, as Matter of Federal Constitutional Law, where Police Showed Single Witness Photographs on More Than One Occasion. 10 A.L.R.7th Art. 5 (2015).

Witness’s Identification of Criminal Defendant, as Person in Photograph Shown by Police, as Resulting from Impermissibly Suggestive Circumstances, as Matter of Federal Constitutional Law, where Police Showed Photographs to Multiple Witnesses. 11 A.L.R.7th Art. 3 (2015).

Police Statement that Photographic Array Shown to Witness Contained or Might Contain Criminal Suspect or Known Criminal as Factor in Determination of Whether Circumstances of Witness’s Identification of Criminal Defendant, as Person in Photograph Within Array, Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 12 A.L.R.7th Art. 3 (2015).

Witness’s Identification of Criminal Defendant in Photographic Array Shown by Police, as Resulting from Impermissibly Suggestive Circumstances, as Matter of Federal Constitutional Law, Where Police Showed Two or More Photographs of Defendant in Same Array. 15 A.L.R.7th Art. 4 (2015).

Mug Shot Characteristics of Criminal Defendant’s Photograph as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 16 A.L.R.7th Art. 3 (2015).

Construction and Application of Constitutional Rule of Miranda — Supreme Court Cases. 17 A.L.R. Fed. 2d 465.

Double Jeopardy Considerations in State Criminal Cases — Supreme Court Cases. 77 A.L.R. Fed. 2d 477.

Construction and Application of Required Records Doctrine, 21 A.L.R.7th Art. 2 (2018).

Assertion and Violation of Privilege Against Self-Incrimination During Sex Offender Treatment, 27 A.L.R.7th Art. 8 (2018).

Witness's Refusal to Testify on Ground of Self-Incrimination as Justifying Reception of Evidence of Prior Statements or Admissions — State Cases, 36 A.L.R.7th Art. 1 (2018).

Applicability of Fifth Amendment to Pretrial Proceedings, 25 A.L.R. Fed. 3d Art. 3 (2017).

Construction and Application of “Foregone Conclusion” Exception to Fifth Amendment Privilege against Self-Incrimination, 25 A.L.R. Fed. 3d Art. 10 (2017).

Am. Jur. 16B Am. Jur. 2d, Constitutional Law, § 942 et seq.

21A Am. Jur. 2d, Criminal Law, § 880 et seq.

Ark. L. Notes.

Malone, The Availability of a First Appearance and Preliminary Hearing, 1983 Ark. L. Notes 41.

Ark. L. Rev.

Theory of Testimonial Competency and Privilege, 4 Ark. L. Rev. 377.

Criminal Law — Multiple Punishment Resulting from a Single Course of Criminal Conduct, 25 Ark. L. Rev. 181.

Creditors' Provisional Remedies and Debtors' Due Process Rights: Statutory Liens in Arkansas, 32 Ark. L. Rev. 185.

Farrow, New Jersey v. Portash: The Scope of Testimonial Immunity, 34 Ark. L. Rev. 306.

Note, Missouri v. Hunter and the Legislature: Double Punishment Without Double Jeopardy, 37 Ark. L. Rev. 1000.

Gingerich, The Arkansas Grand Jury, etc., 40 Ark. L. Rev. 54.

Case Notes, Wilson v State: Narrowing the Standard for Mistrial, 41 Ark. L. Rev. 141.

Case Note, United States v. Salerno: The Validation of Preventive Detention and the Denial of a Presumed Constitutional Right to Bail, 41 Ark. L. Rev. 697.

Note, Arizona v. Fulminate: Should Arkansas Courts Apply Harmless Error Analysis to Coerced Confessions, 45 Ark. L. Rev. 1015.

J. Thomas Sullivan, Brady Misconduct Remedies: Prior Jeopardy and Ethical Discipline of Prosecutors, 68 Ark. L. Rev. 1011 (2016).

Raelynn J. Hillhouse, Recent Developments: The Right to a Fair Cross-Section of the Community and the Black Box of Jury Pool Selection in Arkansas, 71 Ark. L. Rev. 1063 (2019).

C.J.S. 16C C.J.S., Constitutional Law, § 1610 et seq.

U. Ark. Little Rock L.J.

Jans, Survey of Constitutional Law, 3 U. Ark. Little Rock L.J. 184.

Survey of Arkansas Law: Constitutional Law, 6 U. Ark. Little Rock L.J. 107.

Note, Constitutional Law — Due Process — Arkansas' Sunday Closing Law Is Declared Unconstitutionally Vague, 6 U. Ark. Little Rock L.J. 305.

U. Ark. Little Rock L. Rev.

Note: Constitutional Law — Privacy and Equal Protection — Arkansas Joins Other States in a Revival of State Constitutions as Guardians of Individual Rights, Establishing New Protections for Arkansas Gays and Lesbians, Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), 25 U. Ark. Little Rock L. Rev. 681.

Lynn Foster, The Hands of the State: The Failure to Vacate Statute and Residential Tenants’ Rights In Arkansas, 36 U. Ark. Little Rock L. Rev. 1 (2013).

Case Notes

Bail.

—Appellate Review.

Determination on application for bail will not be disturbed unless trial court abused its discretion. Fikes v. State, 221 Ark. 81, 251 S.W.2d 1014 (1952).

—Capital Cases.

The offense of accessory before the fact to murder is a capital offense and is not bailable where the proof is evident or the presumption great. State ex rel. Att'y Gen. v. Williams, 97 Ark. 243, 133 S.W. 1017 (1911).

The Supreme Court will not disturb an order denying bail in a capital case unless there has been an abuse of discretion or the trial court appears to have acted arbitrarily. Parnell v. State, 206 Ark. 652, 176 S.W.2d 902 (1942); Green v. State, 52 Ark. App. 244, 917 S.W.2d 171 (1996).

There was no invidious discrimination where capital offender was held without bail for a valid state purpose and no discrimination was shown against a category of persons. Smith v. State, 256 Ark. 425, 508 S.W.2d 54 (1974).

In a capital case, the state must assume the burden of proving that bail should be denied because the proof is evident or the presumption great. Renton v. State, 265 Ark. 223, 577 S.W.2d 594 (1979).

Since the prior conviction of defendant for a capital offense would satisfy the requirement of this section that the “proof is evident” or that the “presumption is great,” court's order granting a stay pending appeal did not deprive defendant of any legally compelling cognizable right to be released on bail pending a new trial. Grigsby v. Mabry, 583 F. Supp. 629 (E.D. Ark. 1983).

A charge of capital murder does not automatically obviate the possibility of the accused being freed on bond. Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993).

The state bears the burden of showing “the proof is evident or the presumption great,” and the mere fact that capital murder has been charged does not mean the offense is non-bailable. Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993).

Denial of bond upheld in capital case. Drexler v. State, 2018 Ark. App. 95, 538 S.W.3d 888 (2018).

—Cash-Only Bail.

In view of mandate that money bail should be used only as a last resort to ensure the court appearance of an accused, the circuit court erred in refusing to require the municipal court to make a determination that no other condition would ensure accused's court appearance before setting money bail. Thomas v. State, 260 Ark. 512, 542 S.W.2d 284 (1976).

Purpose of bail in Arkansas is to ensure the presence of the defendant, and cash-only bail does not restrict a defendant's constitutional rights pending trial. Trujillo v. State, 2016 Ark. 49, 483 S.W.3d 801 (2016).

Based on the plain language of the Arkansas Constitution and the purpose of bail, the term “sufficient sureties” in this section refers to a broad range of methods to accomplish sufficient sureties, including cash. Accordingly, the Arkansas Constitution permits cash-only bail, as determined by the circuit court pursuant to Ark. R. Crim. P. 9.2, and is subject to the constitutional protections of this section. Trujillo v. State, 2016 Ark. 49, 483 S.W.3d 801 (2016).

Circuit court did not err in setting a cash-only bail for a defendant charged with two counts of aggravated assault, one count of second-degree domestic battery, one count of third-degree domestic battery, and enhanced penalty for an offense committed in the presence of children. Trujillo v. State, 2016 Ark. 49, 483 S.W.3d 801 (2016).

—Insanity.

It was reversible error for a trial court hearing a motion for a new trial to tell the defendant that, if she took the stand to testify as to her insanity, it would immediately send her to the state hospital and not consider bail in the absence of evidence she was a menace to anyone. Kozal v. State, 264 Ark. 587, 573 S.W.2d 323 (1978).

—Right to Bail.

A rule permitting the trial court to revoke bail upon a finding of reasonable cause to believe that the defendant has committed a felony while released pending adjudication of a prior charge would not preclude the trial court from setting a new and reasonable bail with appropriate terms and restrictions. Reeves v. State, 261 Ark. 384, 548 S.W.2d 822 (1977).

This section confers an absolute right before conviction, except in capital cases, to a reasonable bail. Duncan v. State, 308 Ark. 205, 823 S.W.2d 886 (1992).

A deferred guilty plea to a felony may be taken into consideration in fixing the amount and conditions of bail; however, the defendant cannot be denied release on bail as a matter of law because of the plea. Duncan v. State, 308 Ark. 205, 823 S.W.2d 886 (1992).

Although a mental examination provided a basis for setting stringent conditions on release of defendant charged with attempted murder and aggravated assault, it did not give the judge the option of refusing to release him from incarceration. Henley v. Taylor, 324 Ark. 114, 918 S.W.2d 713, 922 S.W.2d 681 (1996).

Petitioner was awarded certiorari relief after a trial court denied petitioner bail after petitioner was charged with violating an order of protection because petitioner was not charged with a capital offense; the trial court should have set a reasonable bail with whatever terms and restrictions were deemed appropriate. Hobbs v. Reynolds, 375 Ark. 313, 289 S.W.3d 917 (2008).

Double Jeopardy.

—Appeal.

If the district court finds a defendant has failed to make a colorable showing of previous jeopardy and threat of repeated jeopardy, the filing of a notice of appeal from the denial of the double jeopardy motion does not divest the district court of jurisdiction. United States v. Brown, 926 F.2d 779 (8th Cir. 1991).

—Assault.

A conviction of an aggravated assault is a bar to an indictment for assault with intent to kill for the same offense since both crimes put the defendant in jeopardy of life or liberty. State v. Smith, 53 Ark. 24, 13 S.W. 391 (1890).

A conviction of the crime of simple assault is not an acquittal of the offense of aggravated assault and does not bar an indictment and conviction of the latter crime where that crime was not charged under the first conviction. May v. State, 110 Ark. 432, 162 S.W. 43 (1913).

Where defendant was convicted in municipal court for a battery against a state trooper but the trial in circuit court was for an alleged assault upon a different officer at an earlier time and a different place, the defendant was not placed in double jeopardy. Breeden v. State, 270 Ark. 90, 603 S.W.2d 459 (1980).

Where the prosecutor's reference to the fact that the defendant had been drinking was indirect and brief, the state did not use the defendant's conduct of operating a motor vehicle in an intoxicated condition to prove the assault charge; therefore, the state did not establish an essential element of the assault offense by proving conduct constituting an offense for which the defendant had already been prosecuted and the defendant was not placed in double jeopardy. Kaspar v. State, 41 Ark. App. 158, 852 S.W.2d 141 (1993).

—Attachment of Double Jeopardy.

At the beginning of defendant's rape trial, voir dire was conducted by both parties and a jury was selected but not sworn; due to a four-month delay in trial while the parties awaited the results from the crime lab, the circuit court ordered a mistrial. Because the jury had not been sworn under oath, double jeopardy did not attach under this section. Williams v. State, 371 Ark. 550, 268 S.W.3d 868 (2007).

—Child Custody Violation.

Defendant father, found guilty of contempt for failure to timely return child to mother's custody, could not also be convicted of a violation of § 5-26-502 for the same offense. Hobbs v. State, 43 Ark. App. 149, 862 S.W.2d 285 (1993).

—City Ordinance and State Law.

A conviction of an offense in a mayor's court bars a conviction of the same offense in a circuit court, although one is prosecuted for violation of a city ordinance and the other for violation of a state law. Champion v. State, 110 Ark. 44, 160 S.W. 878 (1913).

—Civil Proceedings.

Language in contempt order that court would consider remitting part of the monetary fine and jail sentence upon proper application by the defendant established the intent of the order as being coercive and thus civil in nature; accordingly, subsequent prosecution of defendant for interference with custody did not place him in double jeopardy for the same offense. Baggett v. State, 15 Ark. App. 113, 690 S.W.2d 362 (1985).

A civil commitment for evaluation and treatment does not meet the test of prior punishment for a criminal offense even when the precipitating event for the commitment is criminal. Edwards v. State, 328 Ark. 394, 943 S.W.2d 600, cert. denied, 522 U.S. 950, 118 S. Ct. 370, 139 L. Ed. 2d 288 (1997).

—Consent to Termination of Trial.

Although defendant's counsel did not agree to a mistrial, he unequivocally stated that he could not go forward with the trial, which evidenced his consent to terminate the proceedings; thus, there was no constitutional double-jeopardy violation and the trial court did not err in denying defendant's motion to dismiss. Cohns v. State, 2017 Ark. App. 177, 516 S.W.3d 789 (2017).

Defendant requested a continuance, which was granted, then the trial court sua sponte declared a mistrial, and defense counsel acquiesced; thus, defendant expressly consented to the mistrial and the trial court correctly found that double jeopardy had not attached. Hoey v. State, 2017 Ark. App. 253, 519 S.W.3d 745 (2017).

—Contempt.

Defendant's prior contempt proceedings did not present a double-jeopardy bar to the state's prosecution for criminal nonsupport, § 5-26-401, because each time defendant failed to pay his child support, he offended his ongoing duty to provide support; the state was not seeking to punish defendant for the acts of nonpayment for which he had already been punished, but rather, the state was attempting to penalize defendant for a violation of the statute for which he had not yet been punished. Halpaine v. State, 2011 Ark. 517, 385 S.W.3d 838 (2011).

Defendant's conviction for jury tampering did not violate the United States Constitution or the Arkansas Constitution because, even if contempt was a lesser-included offense of jury tampering, there was no indication that defendant was punished for contempt when he was held in contempt for the “time being” and taken into custody; a hearing was not held, an order of contempt was not entered, and defendant was not punished. Whitt v. State, 2015 Ark. App. 529, 471 S.W.3d 670 (2015).

Circuit court properly denied defendant's motion to dismiss the charges against him on double-jeopardy grounds where he was previously found in contempt and punished for violating a court order enjoining him from going to his ex-wife's residence or harassing or threatening her, the current charges alleged that defendant unlawfully distributed explicit photos of his step-daughter, which did not require the State to prove the same elements that were required to find him in contempt, and thus, the finding of contempt was not a lesser-included offense of § 5-26-314. Simon v. State, 2017 Ark. App. 209, 518 S.W.3d 696 (2017).

—Continuing Criminal Enterprise.

Simultaneous conviction and sentence for continuing criminal enterprise and its predicate felony offenses do not violate the protection against multiple punishments for the same offense afforded by the federal constitutional double jeopardy clauses, U.S. Const. Amend. 5, and this section. Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995).

—Criminal Insanity.

Constitutional prohibition against double jeopardy is not violated by statute which permits trial court to declare mistrial if issue of insanity is raised after the trial is begun. Cody v. State, 237 Ark. 15, 371 S.W.2d 143 (1963).

—Directed Verdict.

Where the jury has acquitted a defendant of a crime punishable by a fine or imprisonment, it is a violation of the jeopardy clause for the judge to set aside the verdict and direct a verdict for a fine or for imprisonment. Roberts v. State, 84 Ark. 564, 106 S.W. 952 (1907).

Double jeopardy was not offended when the charge in the information filed against defendant was dismissed by directed verdict, but the prosecutor was allowed to amend the information to charge a lesser included offense, of which defendant was convicted, all occurring in the same trial. Hughes v. State, 347 Ark. 696, 66 S.W.3d 645 (2002).

—Discharge of Jury.

Although discharge of jury normally operates as an acquittal to bar a second trial for the same offense, discharge of a juror after the jury is selected and substitution of another juror is not former jeopardy. Martin v. State, 163 Ark. 103, 259 S.W. 6 (1924).

When the jury is finally sworn to try the case, jeopardy has attached to the accused and when, without the consent of the defendant, expressed or implied, the jury is discharged before the case is completed, then the constitutional right against double jeopardy may be invoked. Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959).

When the jury is finally sworn to try the case, jeopardy has attached to the accused, and when, without the consent of the defendant, expressed or implied, the jury is discharged before the case is completed, then the constitutional right against double jeopardy may be invoked, except in cases of overruling necessity. Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986).

Since a jury was never sworn to hear defendant's case, double jeopardy did not attach and the trial court did not err in denying the motion to dismiss the charge on such grounds. Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992).

The manifest necessity permitting the discharge of a jury without rendering a verdict and without justifying a plea of double jeopardy may arise from various causes or circumstances; however, the circumstances must be forceful and compelling, and must be in the nature of a cause or emergency over which neither court nor attorney has control or which could not have been averted by diligence and care. Green v. State, 52 Ark. App. 244, 917 S.W.2d 171 (1996).

Trial court did not abuse its discretion in finding that, as a result of defense counsel bringing a live explosive into court without permission, there was an overruling necessity for terminating the trial and therefore the Double Jeopardy Clause did not preclude the state from bringing defendant to trial a second time. There was a concern that members of the jury, who had been evacuated from the courthouse, observed police officers in handling the explosive. Koster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008).

—Dismissal.

An erroneous dismissal, for variance, of an indictment after the jury was sworn and testimony taken, bars a subsequent prosecution for the same offense. Johnson v. State, 199 Ark. 196, 133 S.W.2d 15 (1939).

—Extended Juvenile Jurisdiction.

Designation of the juvenile for extended juvenile jurisdiction was proper because, as he was not acquitted or convicted of any of the underlying offenses charged in the delinquency petition, the first two double jeopardy protections were not applicable. To the extent that he claimed that he could face multiple punishments for the same offenses, that claim was rejected as being premature and involving mere speculation. N.D. v. State, 2012 Ark. 265, 383 S.W.3d 396 (2012).

—Felonies.

An acquittal of a felony by a directed verdict bars a second trial for the same offense. State v. Gray, 160 Ark. 580, 255 S.W. 304 (1923).

—Felony With Firearm.

Defendant's convictions for aggravated assault in violation of § 5-13-204(a) and use of a firearm in commission of a felony in violation of § 16-90-120 did not subject defendant to double jeopardy as the § 16-90-120 conviction was used to enhance a defendant's sentence. Davis v. State, 93 Ark. App. 443, 220 S.W.3d 248 (2005).

Even if appellant had preserved for review the argument that the firearm enhancement under § 16-90-120 violated double jeopardy, the argument failed on the merits as the enhancement was not a substantive criminal offense, but a sentencing enhancement specifically intended to provide additional punishment for the use of a firearm during the commission of the underlying felony (manslaughter) itself. Campbell v. State, 2017 Ark. App. 340, 525 S.W.3d 465 (2017).

—Fraud.

On appeal from an acquittal of defendant accused of charge of defrauding bank, the Supreme Court can not reverse since the crime was punishable by imprisonment. State v. Boatright, 192 Ark. 1100, 96 S.W.2d 775 (1936).

Double jeopardy did not mandate the dismissal of fraud charges arising from Medicaid claims because defendant was not being prosecuted for the same offenses or being threatened with punishment for a prior offense; prior charges against defendant for fraud against insurers had been dismissed. Dilday v. State, 369 Ark. 1, 250 S.W.3d 217 (2007).

—Homicide.

A conviction of second degree murder, where prosecution under indictment was for first degree murder, is acquittal of higher crime and the defendant cannot again be tried for first degree murder. Johnson v. State, 29 Ark. 31 (1874).

Where three persons were killed as the result of being struck by a car driven by the defendant, and the defendant was charged in three separate informations with involuntary manslaughter for driving his car in a reckless, wanton, and wilful disregard of safety of other persons, and is tried and convicted for killing of one of the persons, he can still be tried for killing of second person, despite plea of double jeopardy. Holder v. Fraser, 215 Ark. 67, 219 S.W.2d 625 (1949).

Where defendant by successive shots kills two persons and is tried for killing of one person, he can still be tried again for killing of second person, as killings were accompanied by separate intents, regardless of whether killing was by one act or several acts. Holder v. Fraser, 215 Ark. 67, 219 S.W.2d 625 (1949).

The collateral estoppel effect attributed to the double jeopardy clause did not prevent the state from charging the defendant with second-degree murder and the lesser-included offense of manslaughter where she had already been convicted of abuse of an adult, which required a lower culpable mental state than second-degree murder, since the elements of the subsequent offense were not the same as the elements involved in the offense for which she was already convicted. State v. Thompson, 343 Ark. 135, 34 S.W.3d 33 (2000).

—Larceny.

Where a trial resulted in a conviction of larceny of part of the articles covered in an indictment, and a new trial resulted in a quashing of the indictment, a second indictment can not try defendant on the articles included in the first indictment on which defendant was acquitted. State v. Clark, 32 Ark. 231 (1877).

If a thief steals two objects at the same time and is convicted of stealing one object, he cannot later be tried for theft of second object and plea of double jeopardy is good. Holder v. Fraser, 215 Ark. 67, 219 S.W.2d 625 (1949).

The offenses of aggravated robbery and theft of property are separate and distinct and not dependent upon the same evidence to support the convictions; accordingly, defendant's conviction on both charges did not subject him to double jeopardy. Higgins v. State, 270 Ark. 19, 603 S.W.2d 401 (1980).

—Libel.

A judgment for accused in prosecution for criminal libel bars future prosecution for same offense as the crime is punishable by imprisonment. State v. Smith, 94 Ark. 368, 126 S.W. 1057 (1910).

—Misdemeanors.

Because of the nature of the offense, a person indicted for a misdemeanor punishable only by fine, and acquitted thereof, may be tried again for the same offense where the judgment is reversed and remanded on appeal or writ of error. Jones v. State, 15 Ark. 261 (1854) (decisions under prior Constitution).

—Mistrial.

Where the record reflects neither a plea of insanity nor a single line of evidence to suggest appellant was insane, trial court's declaration of a mistrial in order that defendant and a co-defendant be committed for observation entitled defendant to have charges against him dismissed on ground of double jeopardy. Cody v. State, 237 Ark. 15, 371 S.W.2d 143 (1963).

Where the defense counsel in his opening statement made reference to plea bargaining and sentencing recommended by prosecuting attorney, such remarks being prejudicial, the trial court properly granted mistrial and thus defendant's constitutional rights as to double jeopardy were not violated by his retrial. Haight v. State, 259 Ark. 478, 533 S.W.2d 510 (1976).

Where the defendant's attorney requested a mistrial, which was granted, and the defendant, after the jury had been discharged, asked that a mistrial not be declared, the denial of such request did not subject the defendant to double jeopardy. Walker v. State, 262 Ark. 331, 556 S.W.2d 655 (1977).

Where the evidence presented in a prosecution for theft of property was sufficient as a matter of law to support a conviction, but a mistrial was declared after the jury reported that it was hopelessly deadlocked, it would not constitute double jeopardy to permit a retrial for the theft of property. Beard v. State, 277 Ark. 35, 639 S.W.2d 52 (1982).

Where the prosecutor had become ill and could not continue with the prosecution of defendant's trial and subsequently a conflict with one of the jurors was revealed, it was manifestly necessary for the court to order a mistrial, and the trial court did not err in ruling that defendant's second trial was not barred by double jeopardy. Green v. State, 52 Ark. App. 244, 917 S.W.2d 171 (1996).

Because defense counsel's remark in his opening statement that the alleged victim had claimed to swallow bleach in an attempt to gain attention was ultimately admissible, a mistrial should not have been granted and the second trial therefore constituted double jeopardy. Jaynes v. State, 66 Ark. App. 43, 987 S.W.2d 751 (1999).

Mistrial was not justified when defense counsel's opening statement purportedly changed the theory of defense in a murder trial from self defense to accident; because the court could have taken corrective measures and proceeded with trial, the mistrial was unjustified, and this section precluded any subsequent prosecution. Shelton v. State, 2009 Ark. 388, 326 S.W.3d 429 (2009).

The Fifth Amendment's and this section's double jeopardy clauses did not bar defendant's retrial on capital-murder and first-degree murder charges because, although the jury forewoman announced in open court that the jury had found defendant not guilty on those charges, the jury had deadlocked on a manslaughter charge, a mistrial was declared, and there were no “findings” or “verdicts”; a trial court's declaration of a mistrial because of a hung jury was not an event that terminated the original jeopardy to which defendant was subjected, and the mere reading of the jury's verdict in open court did not constitute an acquittal. Neither the giving of the transitional instruction nor the forewoman's announcement negated the bedrock principle that a judgment was not valid until entered of record. Blueford v. State, 2011 Ark. 8, 370 S.W.3d 496 (2011), aff'd, 566 U.S. 599, 132 S. Ct. 2044, 182 L. Ed. 2d 937 (2012).

Denial of defendant's motions to bar his retrial on the charge of first-degree murder was proper because his trial ended in a mistrial without a final verdict entered in the record, and there was no actual verdict of acquittal. Neither the transitional jury instruction nor the jury's written status report of the vote on the lesser-included charge negated the requirements for a formal verdict and there was no merit to defendant's arguments that the jury's note reflecting its vote on the lesser-included offense of second-degree murder constituted an implicit acquittal on the charge of first-degree murder, and that entry of the jury's note into the record rendered it controlling for the purpose of jeopardy on first-degree murder. Basham v. State, 2011 Ark. App. 384 (2011), cert. denied, 566 U.S. 1034, 132 S. Ct. 2710, 183 L. Ed. 2d 67 (2012).

Prior to retrial, a court did not err in denying defendant's motion to dismiss rape and robbery charges on double jeopardy grounds because there was ample support for the trial court's conclusion that the jury was unable to reach a verdict in the first trial; the foreperson stated on the record that the jury was deadlocked and the individual jurors all agreed. Gold v. State, 2013 Ark. 220 (2013).

In a case where defendant and his son were tried together, because defendant expressly requested the trial court to grant a mistrial, that request obviated the need to demonstrate an overruling necessity in order to avoid a claim of double jeopardy, and the state constitutional double jeopardy provision did not impose an affirmative duty on the trial court to determine if the jury was divided on defendant's guilt or innocence. Turner v. State, 2013 Ark. App. 754 (2013).

Denial of defendant's motion to dismiss rape charges against him based on double jeopardy was affirmed; nothing indicated that the State intentionally goaded defendant into requesting a mistrial, and it was apparent that the State wanted to continue with defendant's second trial. McClendon v. State, 2017 Ark. App. 295, 523 S.W.3d 374 (2017).

Circuit court did not err in denying defendant's motion to dismiss his charges based on double-jeopardy grounds because the record did not support that a mistrial was to the State's advantage. The trial did not appear to be going badly for the State because the victim had already testified to the sexual abuse, and her testimony alone was sufficient to sustain a conviction; there was testimony that defendant's DNA matched the semen found on the victim's comforter; and, other than defendant's assertion otherwise, defendant failed to give any reason for the State to want a mistrial, and there was no indication that the State intentionally goaded defendant into requesting one. Kirkland v. State, 2018 Ark. App. 396, 557 S.W.3d 270 (2018).

Circuit court did not err in denying defendant's motion to dismiss his charges based on double-jeopardy grounds after a mistrial was granted due to the State's publication of defendant's excluded booking photograph during the trial. The record did not support that a mistrial was to the State's advantage, defendant failed to give any reason for the State to want a mistrial, and there was no indication that the State intentionally goaded defendant into requesting one; the trial did not appear to be going badly for the State because the victim had already testified to the sexual abuse, her testimony alone was sufficient to sustain a conviction, and there was testimony that defendant's DNA matched the semen found on the victim's comforter. Kirkland v. State, 2018 Ark. App. 396, 557 S.W.3d 270 (2018).

Defendant's motion to dismiss the charges against him based on double jeopardy grounds was properly denied as the trial court did not intend, by its conduct, to provoke defendant into moving for a mistrial, and defendant was not goaded into requesting a mistrial. Defendant's right to proceed pro se was revoked when he could not follow the rules of the court and continued to be disruptive both in front of and outside of the presence of the jury; his attorney asked for a mistrial as he did not feel that he could adequately defend defendant at that stage of the trial; the trial court explained that the mistrial would be without any conditions; and defendant welcomed a mistrial. May v. State, 2019 Ark. App. 443, 587 S.W.3d 257 (2019).

Defendant's retrial did not violate double jeopardy because the circuit court did not abuse its discretion in sua sponte declaring a mistrial due to an overruling necessity, based on (1) a number of circumstances outside the control of the court and the State, including the unexpected unavailability of an interpreter for a second day of trial and a full docket the rest of the week, and (2) the court's efforts to try to complete the trial in one day. Vasquez-Ramirez v. State, 2019 Ark. App. 599, 591 S.W.3d 379 (2019).

—Multiple Offenses.

The prosecution of only one count of an indictment containing three counts and conviction of that one does not bar subsequent conviction on other counts. Grayson v. State, 92 Ark. 413, 123 S.W. 388 (1909).

Where defendant pulled a gun on police officer and told the officer to hand over his pistol, there was no violation of the double jeopardy clause by trying the defendant on a robbery charge after he had previously pleaded guilty to the charge of drawing a weapon on an officer. Decker v. State, 251 Ark. 28, 471 S.W.2d 343 (1971).

The acquittal of a defendant on a charge of willful murder in the course of an armed robbery where the facts reflected that the jury could not have found defendant present at the crime scene without having been obligated to find him guilty of murder, even if it believed he did not actually fire the fatal shot, prevented a subsequent trial of the defendant on a charge of armed robbery arising from the same set of facts under the constitutional guarantees against double jeopardy. Turner v. Arkansas, 407 U.S. 366, 92 S. Ct. 2096, 32 L. Ed. 2d 798 (1972).

Where offenses of robbery and larceny arose out of same criminal act, appellant's trial on larceny charge after his acquittal on robbery charge did not place him in double jeopardy. Polk v. State, 252 Ark. 320, 478 S.W.2d 738 (1972).

Where defendant robbed service station and then stole customer's car, there was no violation of the double jeopardy clause by trying the two offenses separately. Decker v. State, 255 Ark. 138, 499 S.W.2d 612 (1973).

Convictions for rape and attempted first degree murder did not violate the double jeopardy clause. Wiman v. Lockhart, 797 F.2d 666 (8th Cir.), cert. denied, 479 U.S. 1021, 107 S. Ct. 678, 93 L. Ed. 2d 728 (1986).

The double jeopardy clause prohibits the subdivision of a single conspiracy into multiple violations. United States v. Brown, 926 F.2d 779 (8th Cir. 1991).

Sections 5-27-303(b) and 5-27-403(a) constituted two separate offenses and double jeopardy was not violated in that the actor and prohibited conduct in § 5-27-303(b) was different from the actor and prohibited conduct in § 5-27-403(a); as a guardian to the child, defendant husband's conduct was prohibited under § 5-27-303(b), and under § 5-27-403(a), defendant was a person who produced, directed, or promoted a website which included photographs depicting the lewd exhibition of the breasts of a female and the genitals or pubic area of the child, who was younger than 17. Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003).

Defendant was properly convicted of capital murder and arson after he told a neighbor that his trailer home exploded while his girlfriend was inside; the constitutional prohibition against double jeopardy was not violated because § 5-1-110(d)(1)(A) permitted a sentence for both crimes. Meadows v. State, 358 Ark. 396, 191 S.W.3d 527 (2004).

Pursuant to § 5-1-110(d)(1), defendant's convictions for both first-degree murder and the underlying felony of aggravated robbery were authorized by the legislature and his convictions did not violate the federal or state Double Jeopardy Clauses. Hudson v. State, 85 Ark. App. 85, 146 S.W.3d 380 (2004).

Defendant was not subjected to double jeopardy where he was convicted in one county of the rape of his step-daughter and pleaded guilty in another county to the rape of his step-daughter as his argument that the Hot Spring County and Saline County offenses were based on the same conduct was without merit. Anderson v. State, 93 Ark. App. 454, 220 S.W.3d 225 (2005).

Double jeopardy precluded a conviction and sentence for both attempted capital murder and its underlying felony; therefore, defendant's aggravated robbery conviction had to be merged with one count of attempted capital murder. Bunch v. State, 94 Ark. App. 247, 228 S.W.3d 534 (2006).

Trial court did not err in determining that consecutive sentencing for aggravated robbery, § 5-12-103(a)(1), first-degree terroristic threatening, § 5-13-301(a)(1)(A), and second-degree battery, § 5-13-202(a)(2), did not violate the prohibition against double jeopardy in this section and the Fifth Amendment because neither first-degree terroristic threatening nor second-degree battery was a lesser-included offense of aggravated robbery since both crimes required proof of additional facts not required by aggravated robbery; the offense of first-degree terroristic threatening requires the elements of threatening to cause the death of the victim and the purpose of terrorizing the victim, and a conviction for second-degree battery requires proof of purposely causing physical injury to the victim. Walker v. State, 2012 Ark. App. 61, 389 S.W.3d 10 (2012).

—New Trial.

Where on arraignment defendant pleaded not guilty and filed a motion to quash the indictment because unauthorized persons were in the grand jury room, which motion was denied and the trial proceeded before a jury which found defendant guilty, and on appeal the cause was remanded with directions that the indictment be quashed and later an information was filed charging defendant with the same offense, the subsequent trial on the same offense did not constitute double jeopardy. Moseley v. State, 258 Ark. 485, 527 S.W.2d 616 (1975).

The double jeopardy clause does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction; however, the important exception to this rule is that retrial is barred if a conviction is reversed because the evidence was legally insufficient, because reversal on that ground is equivalent, for double jeopardy purposes, to a verdict of acquittal. Parker v. Norris, 64 F.3d 1178 (8th Cir. 1995), cert. denied, 516 U.S. 1095, 116 S. Ct. 820, 133 L. Ed. 2d 764 (1996).

A retrial of the defendant on a charge of first-degree battery was not barred where the defendant was convicted at a bench trial but the trial court thereafter ordered a new trial based on newly discovered evidence which consisted of evidence that a third party committed the crime; the trial court's determination that a new trial was warranted was not equivalent to a finding that the state's case was so lacking that it should not have even been submitted to a jury and did nothing more than indicate that the new evidence would have impacted the outcome of the case only if a factfinder, after resolving questions of credibility and conflicting testimony, were to determine that the weight of the evidence supported an acquittal. Wilcox v. State, 342 Ark. 388, 39 S.W.3d 434 (2000).

—Ordinances.

Defendant's manner of driving, which included speeding and driving left of center, violated city's hazardous driving ordinance, while defendant's act of driving his vehicle while being intoxicated violated § 5-65-103; it is clear that these offenses are two separate offenses for the purpose of double jeopardy analysis since each statutory provision requires proof of a fact which the other does not. Beasley v. State, 47 Ark. App. 92, 885 S.W.2d 906 (1994).

—Parole or Probation.

A defendant who was sentenced as a habitual offender and determined to be ineligible for parole until he had served three-fourths of his sentence was not placed in double jeopardy; denial of parole is not a new punishment for purposes of double jeopardy. Clawitter v. Lockhart, 286 Ark. 131, 689 S.W.2d 558 (1985).

Where the defendant was ordered to pay a fine and simultaneously placed on probation, and the defendant paid the fine but violated the conditions of probation, the defendant was not unconstitutionally subjected to double jeopardy when the court revoked her probation and imposed a five-year sentence. Diffee v. State, 290 Ark. 194, 718 S.W.2d 94 (1986).

The prohibition against double jeopardy does not bar a criminal prosecution simply because the same criminal conduct has previously served as the basis for the revocation of the defendant's probation. Porter v. State, 43 Ark. App. 110, 861 S.W.2d 122 (1993).

Prohibition against multiple trials was the controlling constitutional principle of double jeopardy and sentencing did not carry the finality that attached to an acquittal, which prohibited retrial; the Constitution did not require that sentencing should be a game in which a wrong move by the judge meant immunity for the prisoner. Shirley v. State, 84 Ark. App. 395, 141 S.W.3d 921 (2004).

—Prosecutorial Misconduct.

Circuit court properly denied defendant's motion to dismiss his retrial on double jeopardy grounds based on a Brady violation in his first trial, discovered after reversal on other grounds. Double jeopardy applied only if the conduct giving rise to a successful motion for a mistrial was intended to provoke defendant into moving for a mistrial, and here, there was a grant of a new trial followed by a motion seeking dismissal of the charges based on prosecutorial misconduct during the previous trial. Green v. State, 2011 Ark. 92, 380 S.W.3d 368, cert. denied, 565 U.S. 871, 132 S. Ct. 225, 181 L. Ed. 2d 125 (2011).

Dismissal of a second-degree sexual assault case was not warranted because the case was not barred by double jeopardy under U.S. Const. Amend. V and this section of Article 2 as a result of serious prosecutorial misconduct; there was a mistrial after the state asked a question about a prior allegation of abuse. There was no reason for the state to want a mistrial, and there was little indication that it goaded appellant into requesting one. Cox v. State, 2012 Ark. App. 499, 423 S.W.3d 131 (2012).

—Reinstatement of Verdict.

Reinstatement of the jury's verdict did not run afoul of this section. State v. Schaub, 310 Ark. 76, 832 S.W.2d 843 (1992).

—Retrial Barred.

Defendant could not be retried on the same charge regardless of whether his acquittal was a result of the trial judge's legal error; further, the acquittal was based on matters of guilt or innocence despite the legal error and, thus, double jeopardy prevented retrial. Carter v. State, 365 Ark. 224, 227 S.W.3d 895, cert. denied, 549 U.S. 943, 127 S. Ct. 136, 166 L. Ed. 2d 253 (2006).

—Separate Offenses.

Double jeopardy argument was rejected where defendant's convictions for incest in one county were not for the same offense committed in another county and where the offenses in the former county were not based on the same conduct for which he was convicted in the latter county. Fletcher v. State, 53 Ark. App. 135, 920 S.W.2d 42 (1996).

Circuit court properly denied defendant's petition for writ of habeas corpus because a conviction under § 5-27-602(a)(1) for each photograph sent by defendant did not violate double jeopardy, even though he sent only one email with one attachment. The number of charges brought against defendant was authorized by the legislature, defendant did not dispute that the email he sent contained 30 separate photographs depicting children engaging in sexually explicit conduct, and, although “computer file” is included in the list of media in § 5-27-602(a)(1), the fact that the 30 photographs were attached to the email in a single file was not relevant where it is the number of photographs distributed, not the manner of distribution, that gives rise to the number of permissible charges. Pelletier v. Kelley, 2018 Ark. 347, 561 S.W.3d 730 (2018).

—Sex Offender Registry.

Listed person's name was not removed from the Child Maltreatment Central Registry under former § 12-12-505 (see now § 12-18-901 et seq.) after his acquittal on certain sexual abuse charges because double jeopardy did not apply to the civil proceedings, and the elements of claim preclusion and issue preclusion were not met. The criminal and civil proceedings did not have the same issues or parties; moreover, the Arkansas Department of Health and Human Services did not have the opportunity to fully and fairly litigate its claim. Vancleave v. Ark. Dep't of Health & Human Servs., 98 Ark. App. 299, 254 S.W.3d 770 (2007).

—Trial De Novo.

Since defendant was not charged with separate “counts” but rather was convicted in the municipal court of violation of § 5-65-103 without further specification, and the record of that conviction was brought to the circuit court where it was tried de novo and it was again tried as a general violation of § 5-65-103, and since there would be no retrial, the former jeopardy specter did not appear. Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996).

—Waiver.

Defendant waived his double-jeopardy defense by entering into a plea agreement that he would become subject to the full range of punishment for his original charges in the event of a breach. Green v. State, 2009 Ark. 113, 313 S.W.3d 521 (2009).

Due Process.

—Administrative Hearings.

Where railroad company appeared and contested proceeding before the Railroad Commission (now the Public Service Commission), the railroad can not complain that the order of the commission deprives the railroad of its property without due process. St. Louis, Iron Mountain & S. Ry. v. State, 99 Ark. 1, 136 S.W. 938 (1911).

Unemployment compensation claimant waived the right to challenge the admission of hearsay evidence on due process grounds in proceedings before the Appeal Tribunal where the claimant did not request a continuance before the Tribunal or petition the Board of Review to remand the matter to the Tribunal to allow the claimant an opportunity to cross-examine the opposing witnesses. Blaylock v. Director, Dep't of Workforce Servs. & Wal-Mart, 2012 Ark. App. 538 (2012).

—Administrative Orders.

Where the telephone company did not show that the Public Service Commission's rate setting order provided a rate of return upon its investment that was confiscatory or that its income was so drastically affected that its credit was impaired, the commission's order did not violate due process. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

In an action to increase nongas rates, the brevity of time in which the Arkansas Public Service Commission approved a gas company's tariffs did not violate a consumer group's due process rights because the group was not deprived of the opportunity to petition for rehearing under § 23-2-422(a). The group did not identify any property right before the Commission or the court of which it had been deprived, and it did not show any prejudice. Consumers Utils. Rate Advocacy Div. v. Ark. Pub. Serv. Comm'n, 99 Ark. App. 228, 258 S.W.3d 758 (2007).

In an action to increase nongas rates, a gas company's purchase transport program was a useful and necessary component of its gas procurement process that enhanced the company's ability to meet its statutory and regulatory requirements to provide reliable gas service while minimizing volatility and overall purchased-gas costs to ratepayers and should continue prospectively, and a consumer group pointed to no language in a prior order reserving the issue for the company's next rate case. Therefore, the group's due process rights were not violated under the group's assertion that the Arkansas Public Service Commission reserved the group's concerns for a future docket; the Commission, in fact, revisited these concerns in the present case. Consumers Utils. Rate Advocacy Div. v. Ark. Pub. Serv. Comm'n, 99 Ark. App. 228, 258 S.W.3d 758 (2007).

—Annexation.

Statute which authorizes the annexation of lands in a city or town to a fence district was not unconstitutional as a violation of the due process clause. Reed v. Huntley, 208 Ark. 924, 188 S.W.2d 117 (1945).

Where residents of an area which was in the process of being annexed to a city were not allowed to vote in a municipal bond election held before the annexation became effective, such residents were neither denied due process nor taxed without representation. Tanner v. City of Little Rock, 261 Ark. 573, 550 S.W.2d 177 (1977).

—Arrests.

The right not to be arrested without probable cause is clearly established by law. Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987).

—Attorney Discipline.

Former section 7J of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law does not violate the Fourteenth Amendment to the United States Constitution or Article 2, § 8, of the Arkansas Constitution, notwithstanding the argument that it took away an attorney' right to liberty and property without due process of law, as the practice of law is a privilege, rather than a property right, and the court's right to control the practice of law was, in and of itself, substantial reason to effectuate his suspension. Cambiano v. Neal, 342 Ark. 691, 35 S.W.3d 792 (2000), cert. denied, 532 U.S. 1009, 121 S. Ct. 1737, 149 L. Ed. 2d 661 (2001).

Five-year waiting period for readmission to the bar at section 24 of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law was properly applied to an attorney who had been disbarred in 2000, even though the rule did not exist at the time of the attorney's offending conduct, because such a waiting period was not a punishment. Cambiano v. Ark. State Bd. of Law Exam'rs, 357 Ark. 336, 357 Ark. 336, 167 S.W.3d 649 (2004).

Attorney failed to prove that the decision to suspend his license to practice law for six months was a violation of his due process rights where he received notice of the complaint and the charges against him, was notified of Panel A's decisions, requested and received a public hearing before Panel B, attended the hearing, at which he represented himself, and was allowed to present evidence on his behalf. Stilley v. Supreme Court Comm. on Prof'l Conduct, 370 Ark. 294, 259 S.W.3d 395 (2007), cert. denied, 552 U.S. 1184, 128 S. Ct. 1248, 170 L. Ed. 2d 67 (2008).

—Child Maltreatment Registry.

In a case involving placement on a child maltreatment registry, appellant's due process rights under the Fourteenth Amendment and Ark. Const., Art. 2, § 8 were not violated by the fact that an administrative law judge and a prosecutor came from the same agency; moreover, the standard of evidence was not changed to clear and convincing. Appellant did not show that he would have prevailed had the standard been higher; moreover, he failed to show that he was denied a specific employment opportunity due to his placement on the registry. C.C.B. v. Ark. Dep't of Health & Human Servs., 368 Ark. 540, 247 S.W.3d 870 (2007).

Minor was afforded the opportunity to confront and cross-examine adverse witnesses but waived his right by failing to present their testimony, and he could not argue on appeal that his due-process rights were violated; when compared to the government's interest in presenting its case without traumatizing child victims, the Department of Human Services was not and should not have been required to call the victim to testify. Ark. Dep't of Human Servs. v. A.B., 374 Ark. 193, 286 S.W.3d 712 (2008).

—Civil Proceedings.

Ark. R. Civ. P. 55 does not violate due process because defendants suffering default judgments are given notice of the pending suit through service of the original complaint and summons; they are presumed to know that if they do not respond they will suffer default judgments and may suffer a monetary judgment against them. McGraw v. Jones, 367 Ark. 138, 238 S.W.3d 15 (2006).

Debtor, who had defaulted on her mortgage, alleged that the notice provisions of § 18-50-104 failed to comport with due process requirements; however, there was no state action involved in the foreclosure procedure, and mere passage of the Arkansas Statutory Foreclosure Act did not mean that there was state action or state officials involved. Parker v. BancorpSouth Bank, 369 Ark. 300, 253 S.W.3d 918 (2007).

In a case where relief was sought from a foreclosure proceeding based on defective service under Ark. R. Civ. P. 4, two debtors waived the issue since they recognized the action was in court and made an appearance at the foreclosure proceeding by agreeing to the entry of an order appointing a receiver; therefore, there was no due process violation. Moreover, Rule 4(i) was satisfied because the entry of the order appointing the receiver occurred well within the 120-day period provided for service. Trelfa v. Simmons First Bank of Jonesboro, 98 Ark. App. 287, 254 S.W.3d 775 (2007).

Trial court erred in dismissing a suit pursuant to Ark. R. Civ. P. 41(b) for plaintiff's failure to appear at the trial because, inter alia, it appeared on the record that plaintiff's case was dismissed based on her failure to attend a hearing of which she had no notice, which violated one of the basic tenets of due process. Jones v. Vowell, 99 Ark. App. 193, 258 S.W.3d 383 (2007).

Trial court erred in dismissing a suit pursuant to Ark. R. Civ. P. 41(b) for plaintiff's failure to appear at the trial because: (1) she had not received notice; (2) it could not be said that, pursuant to Rule 41(b), there had been no action shown on the record for the past 12 months; (3) the trial judge did not notify her, prior to the dismissal, that he intended to dismiss her complaint, as required by Rule 41(b); and (4) the court should have complied with Rule 41(b) and given notice of its intention to dismiss; and (5) plaintiff's due process rights were violated. Jones v. Vowell, 99 Ark. App. 193, 258 S.W.3d 383 (2007).

In an action involving the judicial dissolution of a law firm, the trial court denied a creditor's right to due process on remand by failing to provide the creditor with a meaningful hearing and by incorrectly determining that he was barred from seeking relief where it held a hearing after funds had been distributed to shareholders and subsequently failed to provide any mechanism for enforcing the creditor's valid claim. Jewell v. Fletcher, 2010 Ark. 195, 377 S.W.3d 176 (2010).

—Commencement of Actions.

Where a summons merely directed the petitioners to reply without warning that they were required to answer under penalty of the complaint being taken for confessed and where the petitioners appeared specially in an effort to quash service, they were not denied due process by the defect. George v. Jernigan, 262 Ark. 610, 560 S.W.2d 221 (1978).

In a divorce action where service on the husband was attempted by sending the complaint and summons by certified mail to the husband's last known address but the summons was returned unclaimed, the trial court erred in allowing service by warning order without the filing of an affidavit that a diligent inquiry had been made into the husband's whereabouts as required by Ark. R. Civ. P. 4(f), and the divorce decree that had been entered was void. Jackson v. Jackson, 81 Ark. App. 249, 100 S.W.3d 92 (2003).

—Criminal Contempt.

Circuit court erred in holding an attorney in contempt for obtaining its signature on an amended judgment and commitment order by misrepresenting the state's approval and consent because a letter the circuit court addressed to the attorney provided adequate notice that a hearing would occur, but it did not give the attorney adequate notice that criminal contempt charges were pending against her; both Arkansas law and the Fourteenth Amendment to the United States Constitution were clear that the attorney was entitled to notice not only that the circuit court was investigating the possibility of her misrepresentation but also that it was considering holding her in criminal contempt for alleged misrepresentation. Bloodman v. State, 2010 Ark. 169, 370 S.W.3d 174 (2010).

—Criminal Insanity.

A defendant acquitted by reason of insanity is entitled to a hearing on the issue of his mental state at the time of commitment, to be represented by counsel, and to confront and cross-examine witnesses; anything less is a denial of due process. Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981).

Confinement based on a criminal commitment did not violate due process since the commitment was based on a finding that the defendant was a danger to himself and other persons or property and not solely on account of his incompetency to stand trial. Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981).

—Criminal Proceedings.

Seizure of truck load of whiskey being transported through Arkansas from Louisiana to Kansas where driver did not have a permit did not violate due process clause. Welborn v. Morley, 219 Ark. 569, 243 S.W.2d 635 (1951).

A misdemeanor defendant was not denied due process of law by being tried in the mayor's court; the alleged prejudice, if any, of the mayor because of his interest in collecting fines for the city treasury was rendered harmless by the defendant's right to trial de novo on appeal to the circuit court. Cableton v. State, 243 Ark. 351, 420 S.W.2d 534 (1967).

Where a tenant fails to pay rent without justification, criminal prosecution is permissible under the Arkansas Constitution. Duhon v. State, 299 Ark. 503, 774 S.W.2d 830 (1989).

Section 25-15-212 unconstitutionally deprives inmates of review of constitutional questions because judicial review of all other administrative questions may be granted, or withheld, according to the legislature's discretion. Clinton v. Bonds, 306 Ark. 554, 816 S.W.2d 169 (1991).

Having a Batson objection and response aired before the jury is prejudicial to the defendant and denies her due process of law. Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992).

Although defendant's continued vulgar outbursts during the prosecutor's closing argument were disruptive and heard by the jury, the court was unable to say that the fundamental fairness of the trial was manifestly affected such that a mistrial was justified on the trial court's part. Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003).

Despite the trial court's entry of a judgment of conviction for second-degree sexual assault, it was clear that defendant was tried for and found guilty of first-degree sexual abuse after the statute proscribing that offense was repealed; therefore, it was error because a state could not convict a defendant for conduct that its criminal statute, as properly interpreted, did not prohibit. Cousins v. State, 82 Ark. App. 84, 112 S.W.3d 373 (2003).

Requirement under § 16-89-108(a) and Ark. R. Crim. P. 31.1, that a prosecutor approve defendant's request to plead guilty and waive a jury trial, did not violate defendant's due process rights because the sentencing scheme codified at § 16-90-801 et seq. did not create a liberty interest in protecting from exposure to higher ranges of sentences. Whitlow v. State, 357 Ark. 290, 166 S.W.3d 45 (2004).

Court properly denied a petition for writ of error coram nobis based on the state's alleged withholding of exculpatory DNA test results because, contrary to petitioner's assertion that the DNA results would have exonerated him or impeached the victim, the testimony presented by the victim at trial was that petitioner orally raped her twice, and the evidence at the hearing was that samples taken from the victim for DNA testing were vaginal, not oral, swabs; thus, the DNA results were neither favorable nor unfavorable and were, therefore, not material. Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004).

Trial court's refusal to honor defendant's request for a mental examination prior to revocation of a suspended sentence was not a violation of defendant's due process rights. Lamance v. State, 89 Ark. App. 60, 200 S.W.3d 475 (2004).

Murder victim's statements to detective regarding his being robbed by defendant's cousin did not constitute hearsay under Ark. R. Evid. 801(c) and their admission in defendant's trial for murder was not barred by the Confrontation Clause where they were admitted to demonstrate the basis of detective's actions in seeking an arrest warrant for defendant's cousin and to establish defendant's motive for killing the victim, rather than for the truth of the matter asserted in the statements. Dednam v. State, 360 Ark. 240, 200 S.W.3d 875 (2005).

Denial of defendant's motion to reinstate his appeal did not violate his due process rights where defendant's appeal was dismissed after he escaped from custody and fled the jurisdiction, and defendant failed to give any satisfactory reason for an almost 17-year delay in filing his motion for reinstatement. Bargo v. State, 364 Ark. 197, 217 S.W.3d 825 (2005).

In determining whether a trial court erred in refusing a jury instruction in a criminal trial, the test is whether the omission infects the entire trial such that the resulting conviction violates due process; hence, the court did not err in not instructing the jury on mental disease or defect in defendant's murder trial because defendant had not asserted a defense of mental disease or defect. Sharp v. State, 90 Ark. App. 81, 204 S.W.3d 68 (2005).

Trial court did not err in denying defendant's motion to suppress the statement he made to an officer who stopped him admitting that he knew his license was suspended; no Miranda warning was needed because, at the time of the statement, defendant sat in his car on the side of the road, he was never arrested, and after the officer gave him the traffic citation he was free to go. Gorman v. State, 366 Ark. 82, 233 S.W.3d 622 (2006).

Trial court did not abuse its discretion and defendant's constitutional right to testify was not violated where he clearly and on the record stated his intention not to testify in response to a direct question put to him by the trial court at the close of the evidence; defendant requested that he be able to testify only after counsel had conferred in chambers to prepare jury instructions. Henson v. State, 94 Ark. App. 163, 227 S.W.3d 450 (2006).

Witness's testimony did not violate Brady where leniency had not been offered to the witness by the state at the time the witness testified against defendant, defendant's counsel failed to inquire as to whether the witness expected leniency in exchange for his testimony, and the fact that the witness's attorney subsequently called the prosecutor's office and a plea agreement was reached had no bearing on the credibility of the previous testimony at the time of defendant's trial. Higgins v. State, 94 Ark. App. 328, 230 S.W.3d 316 (2006).

Where an accused is tried in prison garb, his right to a fair trial is placed in serious jeopardy; thus, the need to accommodate the jury and to save time cannot be paramount. Croston v. State, 95 Ark. App. 157, 234 S.W.3d 909 (2006).

Trial court did not err in requiring defendant to appear for trial in jail attire where the state provided evidence that he was offered civilian clothing for his court appearance but refused to wear it because it was allegedly too small and defense counsel presented no evidence to dispute the refusal. Croston v. State, 95 Ark. App. 157, 234 S.W.3d 909 (2006).

Although defendant claimed that he was denied the ability to present evidence of the context in which the sexual abuse allegations were made and thus was unable to adduce significant evidence of the victim's true motive, defendant elicited testimony during the trial from the victim as to another possible motive for accusing defendant; thus, it was not that defendant was not allowed to present a defense, but rather that he was not allowed to present the defense he wanted due to the exclusion of the victim's prior sexual conduct, which was proper under § 16-42-101. Jackson v. State, 368 Ark. 610, 249 S.W.3d 127, cert. denied, 552 U.S. 850, 128 S. Ct. 112, 169 L. Ed. 2d 79 (2007).

Rape shield statute, § 16-42-101, did not violate defendant's constitutional right to present a defense during defendant's trial for rape of a minor because defendant was able to cross-examine a physician, who testified that the injury to the victim's vaginal area was not a fresh injury, but occurred sometime in the past. Defendant was also able to cross-examine the victim about her allegations. Joyner v. State, 2009 Ark. 168, 303 S.W.3d 54, cert. denied, 558 U.S. 1047, 130 S. Ct. 736, 175 L. Ed. 2d 514 (2009).

Court rejected defendant's argument that he had a constitutional right to additional testing under the due process clause of this section. When DNA test results matched the person requesting additional testing, it was not fundamentally unfair to refuse additional testing. Isom v. State, 2010 Ark. 496, 372 S.W.3d 809 (2010), cert. denied, 564 U.S. 1023, 131 S. Ct. 3029, 180 L. Ed. 2d 853 (2011).

Trial court complied with the standards regarding certification for foreign language interpreters in Arkansas courts in former §§ 16-89-104(a) [repealed] and 16-10-127 [repealed] as the standards established by the Arkansas courts expressly permitted a non-certified interpreter upon a finding that diligent and good faith efforts to obtain a certified interpreter were made and none had been found to be reasonably available. Diligent efforts were made to obtain a certified interpreter, and although the trial court was advised that there were no certification programs for the Kiti language, defendant was able to obtain the services of the interpreter at issue, who was certified and had experience as a Marshallese interpreter and also spoke Kiti. Ludrick v. State, 2011 Ark. App. 54, 381 S.W.3d 87 (2011).

Defendant did not show a deprivation of his constitutional right to present a defense; the constitution permits the exclusion of evidence that is repetitive, only marginally relevant, or poses an undue risk of harassment, prejudice, or confusion of the issues, and evidence of third-party guilt that is irrelevant, or which is relevant but substantially outweighed by the danger of unfair prejudice or confusion because it is not sufficiently linked to the crime in question, is prohibited. Barefield v. State, 2019 Ark. 149, 574 S.W.3d 142 (2019).

Circuit court did not err in rejecting defendant's claim that his right to due process was violated by undue prosecutorial delay when charges were brought against him in 2015 for the rape of his daughter in Arkansas County and he was tried and convicted for that rape in 2016, but he was not arrested for the Cleburne County 2015 rape of his daughter until January 2018; the record did not reflect any unnecessary delay and defendant did not suffer prejudice because he could only speculate about whether he would have received concurrent sentences if the State had filed rape charges simultaneously in all three counties. Rayburn v. State, 2019 Ark. 254, 583 S.W.3d 385 (2019).

Trial court's refusal to order disclosure of the mental health records of an alleged second-degree sexual assault victim did not entitle defendant to relief, even though the prosecutor possessed the records and defendant plausibly showed the records contained impeachment or exculpatory evidence, because defendant did not show the records were material, as the records shed no light on whether defendant's admitted touching of the victim's vagina was done for sexual gratification. Vaughn v. State, 2020 Ark. App. 185, 598 S.W.3d 549 (2020).

—Criminal Sentencing.

The habitual criminal statute did not violate the due process clause of the state Constitution. Poe v. State, 251 Ark. 35, 470 S.W.2d 818 (1971).

In the sentencing phase, the state may only introduce evidence of prior convictions, and the accused may only introduce evidence to rebut the existence of those convictions. Conley v. State, 305 Ark. 422, 808 S.W.2d 745, cert. denied, 502 U.S. 876, 112 S. Ct. 218, 116 L. Ed. 2d 176 (1991).

Trial court erred in revoking defendant's suspended sentences on the ground that defendant violated the terms and conditions of good conduct because a violation of good conduct was not alleged in the petition to revoke, nor was a requirement to conform to good conduct contained in the written terms and conditions of defendant's suspended sentences. Harris v. State, 98 Ark. App. 264, 254 S.W.3d 789 (2007).

It is fundamentally unfair to revoke probation on the basis of a violation not mentioned in the revocation petition because a defendant cannot properly prepare for the hearing without knowing in advance what charges of misconduct are to be investigated as a basis for the proposed revocation of the probation. Harris v. State, 98 Ark. App. 264, 254 S.W.3d 789 (2007).

Imposition of consecutive sentences was not in violation of defendant's due process rights or the Eighth Amendment to the U.S. Constitution where the trial judge noted that the sentences imposed on each count were less than the maximum and that the approach was consistent with other jury sentences in the country; the trial judge clearly exercised discretion in accepting the jury's recommendation. Ford v. State, 99 Ark. App. 119, 257 S.W.3d 560 (2007).

Saline County court did not violate defendant's due process rights in sentencing defendant as a habitual offender under § 5-4-501(b) after defendant was convicted of felonies in Pulaski County where defendant had notice of the state's intention to seek the enhancement before pleading guilty in Saline County. Misenheimer v. State, 100 Ark. App. 189, 265 S.W.3d 764 (2007).

Defendant's due process rights were not violated where the trial court was not attempting to enlarge a criminal statute and was not changing, amending, or modifying defendant's sentence; it was simply vacating the plea agreement that was entered into between defendant and the state because defendant breached the agreement, and defendant had fair warning that he had to cooperate with the state. Green v. State, 2009 Ark. 113, 313 S.W.3d 521 (2009).

In a case seeking the revocation of a suspended sentence, defendant failed to show that there was a due process violation because he was present at a hearing, was provided the opportunity to hear and controvert evidence against him at the hearing, was provided the opportunity to offer evidence in his own defense, and was represented by counsel. Moreover, defendant failed to show that there was any prejudice, which was required for a reversal. Gholson v. State, 2009 Ark. App. 373, 308 S.W.3d 189 (2009).

Argument that appellant's due process rights under this section were violated when a trial court failed to consider all of the sentencing options available after a revocation of probation was not preserved for appellate review because the argument was not raised when appellant was sentenced. Mewborn v. State, 2012 Ark. App. 195 (2012).

—Death Penalty Matters.

Ark. Const., Art. 2, § 8, did not compel the disclosure of the identity of the supplier of the drugs used in executions where the Arkansas Department of Correction voluntarily submitted the drugs it had obtained to an independent laboratory for testing, the test results confirmed that the contents of the vials matched the FDA-approved labeling and revealed that all three drugs meet applicable potency requirements, and thus, identifying the supplier of the drugs served no useful purpose in establishing the prisoners' claim. Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346 (2016), cert. denied, 137 S. Ct. 1067, 197 L. Ed. 2d 235 (2017).

—Discovery.

No discovery violation was found where (1) there was no evidence pursuant to subsection (b) of this rule indicating that certain files defendant sought were in the hands of any state agency or were subject to the jurisdiction of the court, (2) it was impossible to tell from the record precisely what information defendant had sought, and (3) there was no indication that material evidence existed that was required to be turned over to defendant based on due process considerations. Jimenez v. State, 83 Ark. App. 377, 128 S.W.3d 483 (2003).

—Eminent Domain.

Right of eminent domain may be given irrigation corporations without violating due process clause if the purpose for which the land is taken is public. Smith v. Ark. Irrigation Corp., 200 Ark. 1022, 142 S.W.2d 509 (1940).

In state's exercise of its right of eminent domain without notice to landowner, individual's right to his day in court is on question of compensation for property taken and not its appropriation. Ark. State Hwy. Comm'n v. Scott, 238 Ark. 883, 385 S.W.2d 636 (1965).

—Fair Trial.

When defendant entered into a plea agreement after a jury was selected but before the jury was sworn, it was not an abuse of discretion to decline to accept defendant's proffered additional voir dire questions to be asked of the sentencing jury because (1) the venire had been excused, (2) defendant had exhausted all peremptory challenges, (3) the court had already found the jury qualified, and (4) the court considered the proposed questions, as well as the State's response. Pedraza v. State, 2014 Ark. 298, 438 S.W.3d 226 (2014).

—Grandparental Rights.

Grandparents who have court ordered visitation rights are constitutionally entitled to receive notice of an adoption proceeding. Brown v. Meekins, 278 Ark. 67, 643 S.W.2d 553 (1982).

—Guest Statute.

An act denying a non-paying guest a right to recover damages from a person related within the third degree of consanguinity is not a denial of the constitutional guarantees. Harlow v. Ryland, 78 F. Supp. 488 (E.D. Ark. 1948), aff'd, 172 F.2d 784 (8th Cir. 1949).

—Habeas Corpus.

There was no violation of defendant's due process rights for entitlement to habeas corpus relief where defendant had been sentenced to five years' probation and fined for first-degree sexual abuse, a trial court properly sentenced him to 10 years in prison upon revocation of probation under § 5-4-309(f) [repealed] because defendant could have originally received that term under §§ 5-14-108 [repealed] and 5-4-401(a)(4) and there had been no sentence imposed that had been improperly modified under §§ 5-4-301(d) or 16-93-402(e) [repealed]. Rickenbacker v. Norris, 361 Ark. 291, 206 S.W.3d 220 (2005).

Because habeas petitioner had not sought postjudgment relief from the circuit court on the basis that he had been denied due process of law by the court's alleged failure to follow several procedural requirements as set forth in § 16-112-201 through 207, including the fact that the prosecuting attorney had failed to file an answer within 20 days, the Court was precluded from addressing the appeal as the due-process claims were not preserved for appellate review. Randall v. State, 368 Ark. 279, 244 S.W.3d 662 (2006).

—Liens.

The owner of stock running at large may be charged the expense of taking up and holding the stock by private individual without the statute so allowing being a taking of property without due process. Hendricks v. Block, 80 Ark. 333, 97 S.W. 63 (1906).

— —Mechanics' Liens.

The mechanics' and materialman's lien provisions reached a constitutional accommodation of the respective interests of creditors, debtors, and the public and the property interests affected were not such that minimum due process standards required more than the statutes afforded in the way of notice and hearing. South Cent. Dist. of Pentecostal Church of God of Am., Inc. v. Bruce-Rogers Co., 269 Ark. 130, 599 S.W.2d 702 (1980).

The Arkansas statutes authorizing the filing and enforcement of mechanics' and materialmen's liens do not allow the taking of a substantial property interest to an extent sufficient to render the statutes unconstitutional as violative of due process of law. Paragould Paint & Glass, Inc. v. Rodgers, 269 Ark. 191, 599 S.W.2d 709 (1980).

—Long Arm Statute.

Act allowing service on the secretary of state on behalf of nonresident motorists, and allowing actions to be brought in any state court, does not deny due process clause. Highway Steel & Mfg. Co. v. Kincannon, 198 Ark. 134, 127 S.W.2d 816, appeal dismissed, 308 U.S. 504, 60 S. Ct. 88, 84 L. Ed. 431 (1939).

—Name Changes.

Where a petition for the name change of minor children is made by one parent as their next friend and mother, notice must be given to the other parent of such petition, for to fail to do so is a violation of the due process clause. Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978).

—New Trial, Criminal Cases.

Where the circuit court denied defendant's motion to delay the trial until he could obtain civilian clothes and forced defendant to appear before the jury while dressed in his prison garb, and defendant did not waive his right to appear in civilian clothes, defendant was prejudiced and was entitled to a new trial. Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2002).

Following a new trial, the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. Townsend v. State, 355 Ark. 248, 134 S.W.3d 545 (2003).

Defendant established a prima facie due process violation where the state filed an amended information alleging habitual-offender status on remand of his criminal trial, causing defendant to receive a harsher penalty after the new trial, however, the state sufficiently rebutted the presumption of vindictiveness; the state filed the amended information only after defendant was convicted of several felonies while awaiting his new trial on remand. Townsend v. State, 355 Ark. 248, 134 S.W.3d 545 (2003).

In order to assure the absence of a motivation for vindictiveness, whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear; those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. Townsend v. State, 355 Ark. 248, 134 S.W.3d 545 (2003).

—Nonresidents.

The arrest and trial of nonresidents on violation of game and fish laws was due process of law. Anderson v. State, 213 Ark. 871, 213 S.W.2d 615 (1948).

—Notice by Publication.

Notice provisions within the Municipal Property Owners' Improvement District Law, § 14-94-101 et seq., did not violate due process because indirect notice has been held sufficient in matters affecting real estate and appellants did not establish that notice by publication was inappropriate to the circumstances of the case. Bullock's Ky. Fried Chicken, Inc. v. City of Bryant, 2019 Ark. 249, 582 S.W.3d 8 (2019).

—Parental Rights.

Statute which provides for the termination of parental rights must meet basic constitutional due process requirements. Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979).

Parental rights are protected by the due process clause of U.S. Const., Amend. 14 and this section. Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984).

Because a mother failed to file a timely notice of appeal pursuant to Ark. R. App. P. Civ. 2 from the trial court's adjudication order, the appellate court was unable to consider the mother's arguments relating to errors made during the adjudication hearing; however, the appellate court did consider whether the trial court's failure to provide counsel, pursuant to § 9-27-316, to the mother during the adjudication hearing tainted the remainder of the case, which resulted in termination of parental rights, and found no such taint. Jefferson v. Ark. Dep't of Human Servs., 356 Ark. 647, 158 S.W.3d 129 (2004).

In an adoption case, where the putative father was served with a summons, petition for adoption, notice of hearing, and notice of deposition on December 14, 2004, and the hearing was held on December 20, 2004, the notice given the father satisfied the requirements of due process.Escobedo v. Nickita, 365 Ark. 548, 231 S.W.3d 601 (2006).

Order terminating mother's parental rights to her two children was upheld where the mother had notice of the hearing and was given the opportunity to voice her objection to the fact that the trial court failed to order a continuation of reunification services and that those services were not provided to her. Kight v. Ark. Dep't of Human Servs., 94 Ark. App. 400, 231 S.W.3d 103 (2006).

Father's due process rights were not violated when a trial court allowed the Arkansas Department of Health and Human Services to amend a termination of parental rights petition on the day of the hearing to reflect that the child had been in its custody for 12 months or longer where the father was not prejudiced; the amendment was proper under Ark. R. Civ. P. 15(a). Smith v. Ark. Dep't of Health & Human Servs., 100 Ark. App. 74, 264 S.W.3d 559 (2007).

Where the Arkansas Department of Human Services did not make appellant a party to the dependency proceeding for two years despite knowing his putative fatherhood and terminated his parental rights without creating a case plan for him or providing family services, appellant was denied basic due process guarantees. Tuck v. Ark. Dep't of Human Servs., 103 Ark. App. 263, 288 S.W.3d 665 (2008).

—Prisoner's Rights.

Inmate was not denied equal protection where he alleged that the prison failed to follow a requirement to purchase electronic monitoring devices because the requested declaratory relief would not settle the controversy as the directive was clearly subject to the prison's discretion and did not require the purchase of the equipment. The directive did not articulate a specific requirement to purchase the devices or any other equipment; the policy only established conditions and requirements for approved inmates, and because the prison had not approved, and was not required to approve, inmates serving life sentences for meritorious furlough, the prisoner did not show that he could have any potential liberty interest in furlough. Dukes v. Norris, 369 Ark. 511, 256 S.W.3d 483 (2007).

Inmate's petition failed to sustain a claim under § 25-15-212 to support judicial review of the Arkansas Department of Corrections' decision because it did not set forth facts to show deprivation of a liberty interest under the Due Process Clause; the inmate alleged only a breach of contractual terms and that the DOC rules interfered with his right to correspond or otherwise communicate with persons not in prison. Renfro v. Smith, 2013 Ark. 40 (2013).

—Public Officeholder.

A county officer indicted for malfeasance or nonfeasance may be suspended until tried without violation of the due process clause, since an office is not property as between the officeholder and the state. Sumpter v. State, 81 Ark. 60, 98 S.W. 719 (1906).

The failure to give notice to senator of proceedings at which senate expelled the senator did not violate due process since the senator's right to hold office was not a property right. Reaves v. Jones, 257 Ark. 210, 515 S.W.2d 201 (1974).

—Regulation of Business.

An ordinance prohibiting the door to door soliciting of orders from private residences and business was discrimination in favor of local business and a violation of due process. Wilkins v. Harrison, 218 Ark. 316, 236 S.W.2d 82 (1951).

In keeping with the provisions of former § 18-27-201, the court held that an interest acquired by a pawn shop in pawned goods constituted a sufficient property interest to warrant due process protection and the joint participation between the police department and the true owner of the goods in depriving the shop of the use of the goods constituted state action; thus, former §§ 18-27-202 and 18-27-203 were unconstitutional in mandating the pawn shop to return the goods to the owner based merely on the owner's request before a judicial determination of ownership had taken place and in assessing attorney’s fees and costs against the shop after the owner was subsequently adjudicated the true owner. Landers v. Jameson, 355 Ark. 163, 132 S.W.3d 741 (2003).

Amendment to § 4-75-702 that increased the presumed “cost of doing business” from two and three-quarters percent to four percent of the basic cost of the cigarettes to a wholesaler did not violate the due process protections of the Arkansas or U.S. Constitutions; there was a rational basis for the amendment, as the legislature could have found that changed market conditions supported an increase in the cost of doing business. McLane S., Inc. v. Davis, 366 Ark. 164, 233 S.W.3d 674 (2006).

Because rebates make it more difficult to enforce and administer the Unfair Cigarette Sales Act, § 4-75-701 et seq., the legislature may have decided to prohibit them; thus, the anti-rebate provisions found in § 4-75-708(e) do not violate the due process protections of the Arkansas or U.S. Constitutions. McLane S., Inc. v. Davis, 366 Ark. 164, 233 S.W.3d 674 (2006).

Amendment to § 4-75-702(5)(B) merely clarified where and generally what type of proof a wholesaler must file in order to make a below-cost sale of cigarettes; these changes do not cause § 4-75-702(5)(B) to violate the due process protections of the Arkansas or U.S. Constitutions. McLane S., Inc. v. Davis, 366 Ark. 164, 233 S.W.3d 674 (2006).

—Regulation of Professions.

Board responsible for licensing of physicians may revoke licenses as well without violating due process clause. State Medical Board v. McCrary, 95 Ark. 511, 130 S.W. 544 (1910).

Statute regulating the practice of optometry is constitutional and valid. Duren v. Ark. State Bd. of Optometry, 211 Ark. 565, 201 S.W.2d 578 (1947).

Where one of the five board members who suspended a chiropractor's license was a graduate of Palmer College, the chiropractor did not demonstrate any bias or a denial of due process based on the assertion that the composition of the board of chiropractic examiners resulted in unequal treatment to him as a Palmer College graduate. Buhr v. Ark. State Bd. of Chiropractic Exmrs., 261 Ark. 319, 547 S.W.2d 762 (1977).

—Retroactive Application.

Application of a 1993 amendment to the direct action statute (§ 19-10-305) did not constitute an unconstitutional retroactive application to any suit pending at time of amendment's effective date since the amendment simply added the clause “except to the extent that they be covered by liability insurance” to qualify an employee's immunity. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996), overruled in part, Ark. Dep't of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 (2006).

—Sex Offender Registration.

Regardless of the reason one was required to register as a sex offender, the procedures afforded by the Sex Offender Registration Act, § 12-12-901 et seq., were the same; those procedures comported with procedural due-process requirements. Ark. Dep't of Corr. v. Bailey, 368 Ark. 518, 247 S.W.3d 851 (2007).

Alleged sex offender's due process rights under the United States and Arkansas Constitutions were not violated by a determination that he was a Level 3 offender because he had a meaningful opportunity to be heard through a face-to-face interview and review by a sex offender assessment committee. A second face-to-face interview was not required. Burchette v. Sex Offender Screening & Risk Assessment Comm., 374 Ark. 467, 288 S.W.3d 614 (2008).

—Taxation.

Delinquent tax sales conducted without publication of delinquent tax lists are not in violation of the due process clause. Benham v. Davis, 196 Ark. 740, 119 S.W.2d 743 (1938).

A statute taxing private citizen residents of state on income derived from without state, but exempting income of domestic corporation from taxation of the comparable income, is not a violation of the due process clause. Dunklin v. McCarroll, 199 Ark. 800, 136 S.W.2d 675 (1940).

The taxation of the extrastate income of a domestic corporation violates the due process clause. Dunklin v. McCarroll, 199 Ark. 800, 136 S.W.2d 675 (1940); Cheney v. Stephens, Inc., 231 Ark. 541, 330 S.W.2d 949 (1960).

The party attacking taxation legislation has the burden to negate every conceivable basis which might support it. Howard v. City of Ft. Smith, 311 Ark. 505, 845 S.W.2d 497 (1993).

With respect to taxation legislation, the due process analysis is the same as the equal protection analysis. Howard v. City of Ft. Smith, 311 Ark. 505, 845 S.W.2d 497 (1993).

Proration of tax for licenses issued in the last half of the tax year, but not the first half of the tax year, did not violate the equal protection or due process clauses of the U.S. and Arkansas Constitutions. Howard v. City of Ft. Smith, 311 Ark. 505, 845 S.W.2d 497 (1993).

Where state had attempted to provide the property owners and delinquent taxpayers with notice, both via certified mail and through publication in the newspaper, it had complied with the provisions of § 26-37-301 and the tax sale was valid. Jones v. Flowers, 359 Ark. 443, 198 S.W.3d 520 (2004), rev'd, 547 U.S. 220, 126 S. Ct. 1708, 164 L. Ed. 2d 415 (2006).

Summary judgment was appropriate because there was no dispute that notice to the landowner of the pending tax sale was a single unclaimed letter sent by certified mail; some additional step reasonably calculated to give the landowner notice was required, and a mailing to the other landowners did not satisfy the requirements of due process. RWR Props. v. Young, 2009 Ark. App. 332, 308 S.W.3d 183 (2009).

Collecting interest on taxpayers' delinquent tax obligations did not violate due process because the taxpayers were not denied the ability to contest the interest either administratively or by seeking judicial relief under the Arkansas Tax Procedure Act, § 26-18-101 et seq.Sanford v. Walther, 2015 Ark. 285, 467 S.W.3d 139 (2015).

—Taxpayer Suits.

Taxpayer's attempts to characterize the payment to the superintendent as private and one solely for his benefit failed; the severance payment was made for the public purpose of removing the superintendent to allow for the hiring of a new, and in the school board's judgment, a preferable superintendent to lead the Little Rock Public Schools. Gray v. Mitchell, 373 Ark. 560, 285 S.W.3d 222 (2008).

—Third Party Actions.

Where judgment was entered in favor of one party but the effect of judgment was withheld until third party actions could be decided, the court would deprive the judgment winner of property without due process if it dismissed his case for want of prosecution. Jones v. Hardesty, 261 Ark. 716, 551 S.W.2d 543 (1977).

—Trust Agreements.

Statute prohibiting trust agreements does not constitute crime of common-law conspiracy and penalities under statute need not comply with due process clause. Hammond Packing Co. v. State, 81 Ark. 519, 100 S.W. 407 (1907), aff'd, 212 U.S. 322, 29 S. Ct. 370, 53 L. Ed. 530 (1909).

—Unpublished Opinions.

Defendant's argument that the prohibition of Ark. Sup. Ct. & Ct. App. R. 5-2, prohibiting citation to unpublished opinions, violated his right of due process under Ark. Const., Art. 2, §§ 8 and 21 was rejected because the federal judicial power clause had never before been construed to limit courts in the manner in which they conduct their business, and the same could be said for Arkansas's judicial article. Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2003).

—Vagueness.

Where the statute is so vague, indefinite, uncertain, yet inclusive, that it would make difficult or impossible access to the judiciary, it is unconstitutional. Bennett v. NAACP, 236 Ark. 750, 370 S.W.2d 79 (1963).

The statute defining first-degree battery is not unconstitutionally vague since it provides sufficient notice of the conduct proscribed and is not defective in not setting out the necessary culpable mental state since statute defining culpable mental states clearly provides that such mental state must be proved. Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977).

The allegation that statute did not proscribe the act of fellatio was without merit and the statute was held not to be unconstitutionally vague or too broad in scope. Connor v. State, 253 Ark. 854, 490 S.W.2d 114, appeal dismissed, 414 U.S. 991, 94 S. Ct. 342, 38 L. Ed. 2d 230 (1973).

Where standards for termination of parental rights are the subject of the statute involved, the application of “vagueness” tests should lie somewhere between that given criminal law statutes and that given statutes regulating business, i.e., permitting greater flexibility than where criminal law statutes are involved and less flexibility than with business-regulatory statutes. Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979).

Since the prohibitions set forth in the Sunday closing law were vague and did not satisfy the basic principle that no man shall be held criminally responsible for conduct which he could not reasonably understand to be prohibited, such law fails to meet the minimal requirements of due process. Handy Dan Improv. Ctr., Inc. v. Adams, 276 Ark. 268, 633 S.W.2d 699 (1982).

Statute setting the standard for driving while under the influence is not void for vagueness and meets both due process requirements in that it gives a fair warning of the prohibited conduct and a clear standard is set for police enforcement. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).

Due process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt; however, the Constitution does not require impossible standards of specificity and a statute is sufficiently clear if its language conveys sufficient warning when measured by common understanding and practice. Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984).

Due process requires only fair warning, not actual notice; the statutory definition of “intoxicated” fairly warns a person of ordinary intelligence that he is in jeopardy of violating the law if he drives a motor vehicle after consuming a sufficient quantity of alcohol to alter his reactions, motor skills and judgment, to the extent that his driving constitutes a substantial danger to himself or others. Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984).

Capital murder statute is not unconstitutionally vague in violation of the Eighth and Fourteenth Amendments on the grounds that it provides no meaningful distinction between “premeditation and deliberation” and the definition of “purpose” in the first-degree murder statute. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943, cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 334 (1996).

Terms “trade discount” and “rebate” were unclear under existing Unfair Cigarette Sales Act, § 4-75-701 et seq., and the tobacco control board's regulations as to what was an allowed “trade discount” as opposed to a prohibited “rebate” were unclear; thus, the law was unconstitutionally vague under due process standards because it did not give a person of ordinary intelligence fair notice of what was prohibited, specifically, whether payments to the retailer were permitted “trade discounts” or prohibited “rebates.” Ark. Tobacco Control Bd. v. Sitton, 357 Ark. 357, 166 S.W.3d 550 (2004).

Section 5-64-1006 was not impermissibly vague as applied and did not violate the due process guarantee in this section, because the statute and its supporting regulations were specific enough to provide fair notice that one was required to report to the Arkansas State Board of Pharmacy when one's customers were likely to be using List 1 chemicals to illegally manufacture a controlled substance. Landmark Novelties, Inc. v. Ark. State Bd. of Pharm., 2010 Ark. 40, 358 S.W.3d 890 (2010).

—Venue Change, Criminal Cases.

Where the defendant in a capital murder case was allowed a change of venue to a neighboring county where the judge and lawyers spent five days selecting a jury from 120 prospective jurors, the defendant was not denied his right to a fair trial and due process of law. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057, 101 S. Ct. 630, 66 L. Ed. 2d 511 (1980).

—Workers' Compensation.

It is not a violation of due process for the Workers' Compensation Commission to decide cases involving the Second Injury Trust Fund. Lambert v. Baldor Elec., 44 Ark. App. 117, 868 S.W.2d 513 (1993).

Employers did not present the appellate court with any convincing argument regarding how or why the cases they cited were applicable in deciding whether the penalty under § 11-9-802(c) violated their rights under this section or Ark. Const., Art. 2, § 9, and did not develop their argument with citation to any case law addressing anything approaching the constitutionality of late-payment schemes analogous to § 11-9-802(c). Owens Planting Co. v. Graham, 2011 Ark. App. 444, 384 S.W.3d 634 (2011).

Information.

Prosecution by information authorized by Ark. Const. Amend. 21, § 1, is not prohibited by the U.S. Constitution. McDonald v. Arkansas, 501 F.2d 385 (8th Cir.), cert. denied, 419 U.S. 1004, 95 S. Ct. 325, 42 L. Ed. 2d 280 (1974).

The harmless error doctrine will not be applied in a case in which a criminal defendant was never charged. Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993).

The requirements for informations and indictments are set out in § 16-85-403 and Ark. Const., Art. 7, § 49. Archer v. Benton County Circuit Court, 316 Ark. 477, 872 S.W.2d 397 (1994).

Where defendant was charged with burglary with intent to commit “a crime punishable by imprisonment,” and he was apparently tried for burglary with intent to commit attempted theft rather than for burglary with intent to commit theft, and if the information had specified the crime defendant allegedly intended to commit — and if that crime was indeed attempted theft — then defendant would have been able to make the legal argument that there is no such thing as an intent to attempt theft; because defendant's defense was prejudiced by the information's lack of specificity, his constitutional right to notice of the charges against him was violated. Forgy v. Norris, 64 F.3d 399 (8th Cir. 1995).

Presentment or Indictment.

The terms “presentment” and “indictment” were used in their technical sense as known and defined at the time of adoption of Constitution and must be made or preferred by a grand jury. State v. Cox, 8 Ark. 436 (1848); Eason v. State, 11 Ark. 481 (1851); Straughan v. State, 16 Ark. 37 (1855) (decisions under prior Constitution).

When an alleged cause of removal from office is a matter not cognizable by a grand jury, the proceeding may be by information; but when the offense is indictable, the proceeding must be by indictment. Haskins v. State, 47 Ark. 243, 1 S.W. 242 (1886).

When there is no valid charging instrument, and yet the defendant is convicted in a court of limited jurisdiction, there is a void judgment of conviction in the court of limited jurisdiction; a void judgment cannot provide valid notice for a subsequent proceeding in circuit court. Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993).

—Date Charges Filed.

Defendant's right to receive notice of the felony charges against him is protected by this section and Ark. Const. Amend. 21, which require those criminal charges to be filed by presentment or indictment; therefore, for purposes of his speedy trial rights and Ark. R. Crim. P. 28.2(a), the date charges were filed against defendant was the date the felony information was filed in circuit court, rather than the date the affidavit of probable cause to arrest him was filed. Archer v. Benton County Circuit Court, 316 Ark. 477, 872 S.W.2d 397 (1994).

—Indictment.

With certain exceptions, no person may be held to answer a criminal offense unless on the presentment of an indictment. The form of the indictment may be dealt with by the legislature, but the common-law substance of the indictment must be preserved. Mott v. State, 29 Ark. 147 (1874).

—Misdemeanors.

No indictment or written information is necessary in the prosecution of misdemeanors or violations of city ordinances in the police courts. Burrow v. City of Hot Springs, 85 Ark. 396, 108 S.W. 823 (1908).

The Rules of Criminal Procedure provide for the issuance of a warrant, citation, or summons to command an accused to court on a misdemeanor charge. Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993).

—Notice of Charge.

Where defendant had appeared for a hearing on a petition to revoke a suspended sentence and was then first made aware of a criminal contempt charge, and of the nature and degree of the offense charged, his conviction of criminal contempt was reversed. Sellers v. State, 50 Ark. App. 32, 901 S.W.2d 853 (1995).

Because driving under the influence (DUI) is not a lesser-included offense of driving while intoxicated (DWI), defendant who was only charged with DWI was prepared to defend against the charge of DWI and was prejudiced by circuit court's decision altering the charge to DUI. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

—Penalties.

Prohibition by Constitution of punishment in suit instituted by means other than presentment or indictment of a grand jury for a crime does not extend to recovery of penalties against railroad for failure to signal at crossings. St. Louis, Ark. & Tex. Ry. v. State, 56 Ark. 166, 19 S.W. 572 (1892).

Recovery of statutory penalties may be by actions of a civil or criminal nature, and may be commenced by informations. St. Louis, Iron Mountain & S. Ry. v. State, 125 Ark. 40, 187 S.W. 1064 (1916).

Right to Counsel.

When a defendant invokes his Sixth Amendment right to counsel for a judicial proceeding unrelated to the present charge, but does not make any indication that he only wishes to deal with the police through counsel, he does not invoke his Fifth Amendment right to counsel; the Sixth Amendment right to counsel is case specific. Olive v. State, 340 Ark. 343, 10 S.W.3d 443 (2000).

An accused's right to counsel after a prosecution has commenced is case specific and cannot be invoked once for all future prosecutions; therefore, defendant's invocation of his right to counsel in the robbery case did not constitute an invocation of the right to counsel during his subsequent custodial interrogation regarding the murder. Olive v. State, 340 Ark. 343, 10 S.W.3d 443 (2000).

Defendant's statement was spontaneous and not the product of custodial interrogation; the mere fact that the officer sat silently in the interview room with defendant for a brief period of time while he looked over his case file was not the sort of coercive police practice or psychological ploy that Miranda was designed to guard against, nor was the officer's request for handwriting samples because such evidence, which was sought only for comparison purposes, was not testimonial in nature and therefore not protected. State v. Pittman, 360 Ark. 273, 200 S.W.3d 893 (2005).

In a termination of parental rights proceeding, even though the trial court erred in denying the parents' request to proceed pro se, by their own admission that error did not cause them to suffer prejudice. Williams v. Ark. Dep't of Health & Human Servs., 99 Ark. App. 95, 257 S.W.3d 574 (2007).

Defendant's convictions and sentences for capital murder and kidnapping were inappropriate because counsel was not made available to defendant, nor did defendant initiate contact. The illegal statement was made at 7:25 p.m. and concluded at 7:35 p.m., and the subsequent confession was taken at 8:55 p.m.; defendant was in no way free of the psychological and practical disadvantages of having had confessed and he was in continuous custody between the two statements and the same investigators participated in both. Osburn v. State, 2009 Ark. 390, 326 S.W.3d 771 (2009), cert. denied, 559 U.S. 938, 130 S. Ct. 1522, 176 L. Ed. 2d 113 (2010).

None of defendant's statements unambiguously and unequivocally indicated defendant's right to remain silent or a right to counsel; defendant was conscious of his Miranda rights and he continued to talk to the officer and answer his questions even though he knew it was against his best interest, and there was no error in allowing the indicated portions of the custodial statement. Sykes v. State, 2009 Ark. 522, 357 S.W.3d 882 (2009).

Appellant convicted of three counts of rape was not entitled to postconviction relief based on newly discovered evidence that his trial counsel was using methamphetamine while representing appellant and pleaded guilty to drug charges. Appellant did not show that his due process rights under this section of Article 2 were violated because he failed to demonstrate how he was prejudiced by trial counsel's alleged impairment. Charland v. State, 2012 Ark. 246 (2012).

Self-Incrimination.

Under statute precluding use of testimony given by witness against him in other prosecution, election clerks under indictment can not be ordered to testify. Bates v. State, 164 Ark. 240, 261 S.W. 315 (1924).

Statute providing for reclaiming of stock impounded for running at large does not have the effect of requiring owner reclaiming stock to be a witness against himself the statute does not require the owner to reclaim the stock but only permits it and an owner cannot be convicted of allowing his stock to run at large unless he knowingly permits them to do so. Staples v. Bishop, 225 Ark. 936, 286 S.W.2d 505 (1956).

Witness in criminal prosecution could not be compelled to answer question as to whether he and defendant participated in crime with which defendant was charged unless there was some circumstance which deprived witness of his constitutional privilege against self-incrimination. Rhea v. State, 226 Ark. 581, 291 S.W.2d 505 (1956).

Where, as the witnesses were being sworn, the court asked defense counsel if he wished to have his client sworn at that time and defense counsel made no direct reply, such inquiry did not unduly emphasize the defendant's right not to testify and was not grounds for mistrial. Newberry v. State, 261 Ark. 648, 551 S.W.2d 199 (1977).

Circuit court did not err by failing to grant a mistrial in a driving while intoxicated case where the prosecutor commented on defendant's proposed testimony during his opening statement as defense counsel had indicated during voir dire that defendant was going to testify. Elser v. State, 353 Ark. 143, 114 S.W.3d 168 (2003).

Supreme Court rejected defendant's claim he was entitled to a mistrial because an officer's testimony, that defendant had been “in and out of jail,” forced him to testify as to the innocuous reasons for this where the record showed defendant intended to take the stand before the prejudicial statement was made, it was not so patently prejudicial that it precluded him from obtaining a fair trial, the prosecutor had not deliberately induced a prejudicial response, and the trial court gave a curative admonition to the jury. Parker v. State, 355 Ark. 639, 144 S.W.3d 270 (2004).

Officer was not required to read defendant his Miranda rights prior to questioning him about an attempt to use a company credit card to buy a large amount of gas because a detention for up to 15 minutes was permitted under Ark. R. Crim. P. 3.1. Lee v. State, 102 Ark. App. 23, 279 S.W.3d 496 (2008).

Sex Offender Screening and Risk Assessment Committee's use of statements the sex offender made during the assessment process, under a grant of immunity, to assess him as a level four offender, did not violate his privilege against self-incrimination under this section. The assessment and ultimate classification of a sex offender pursuant to the Sex Offender Registration Act are not criminal in nature, and one's privilege against self-incrimination may only be violated where one's own statements are used against one in a proceeding criminal in nature. Parkman v. Sex Offender Screening & Risk Assessment Comm., 2009 Ark. 205, 307 S.W.3d 6 (2009).

Denial of defendant's motion for a new trial after he had been convicted of rape was appropriate because statements commenting on the lack of evidence were clearly directed towards rebutting the defensive strategy and did not constitute impermissible references to defendant's failure to testify. Because the remarks were not improper, counsel was not ineffective for failing to preserve an argument that those remarks were improper. Rounsaville v. State, 2011 Ark. 236 (2011).

—Abridgement of Right.

Statute which would require a person to appear before a grand jury, and therefore would require testimony regardless of whether such testimony or evidence would tend to incriminate him, is unconstitutional. Bennett v. NAACP, 236 Ark. 750, 370 S.W.2d 79 (1963).

The use of evidence obtained by a search of the defendant's person without a warrant as a result of an unlawful arrest would force the defendant to be a witness against himself in violation of this amendment. Ward v. State, 243 Ark. 472, 420 S.W.2d 540 (1967).

Prosecutor's remark in his opening statement to the effect that the decedent could not tell his side of the story and that it would all have to come from the defendant resulted in pre-evidentiary coercion which may have forced the defendant to testify against her will. Clark v. State, 256 Ark. 658, 509 S.W.2d 812 (1974).

Prosecutor's repetitive comments on defendant's post-arrest silence concerning shooting implicated the exercise of defendant's right to remain silent. Pharo v. State, 30 Ark. App. 94, 783 S.W.2d 64 (1990).

—Admissions.

Evidence of a defendant's voluntary admissions in a civil suit may be admitted and is not tantamount, in a criminal prosecution, to compelling the defendant to testify against himself. Shockley v. State, 199 Ark. 159, 133 S.W.2d 630 (1939).

To contravene defendant's testimony, state may introduce evidence of defendant's admission to the state's witness without violating constitutional provision that a defendant can not be compelled to give testimony against himself. Casteel v. State, 205 Ark. 82, 167 S.W.2d 634 (1943).

—Confessions.

Testimony given willingly by defendant before the workmen's compensation commission confessing the murder of the victim was admissible on the murder trial for the death of such victim. Brown v. State, 208 Ark. 28, 184 S.W.2d 805 (1945).

A voluntary confession by one of two participants in a bank robbery under an oath administered by the prosecuting attorney is admissible in a prosecution of the confessor alone, as not violating self-incrimination, where the confessor is warned that he need not confess and that it will be used against him. Rowe v. State, 224 Ark. 671, 275 S.W.2d 887 (1955).

A 16-year-old first offender's confession should have been suppressed where made shortly after counsels' departure and even though alleged to have been given voluntarily. Vault v. State, 256 Ark. 343, 507 S.W.2d 111 (1974).

No single factor, but the totality of the circumstances, is significant in determining voluntariness. Leach v. State, 311 Ark. 485, 845 S.W.2d 11 (1993).

A threat is not more odious per se than a promise; the real issue concerning incriminating statements made through hope or fear is based on broader considerations of voluntariness in light of the particular inducement, whatever its nature. Leach v. State, 311 Ark. 485, 845 S.W.2d 11 (1993).

The court will examine all of the circumstances to determine whether a statement was voluntary; if a promise or threat was made, the court will look first to the police conduct and then to the vulnerability of the defendant. Leach v. State, 311 Ark. 485, 845 S.W.2d 11 (1993).

If a promise was made that was permissible and was kept, those are circumstances to consider in determining whether a confession was voluntary. Leach v. State, 311 Ark. 485, 845 S.W.2d 11 (1993).

Trial judge's determination that confession was voluntary was correct where there was no evidence of offer of reward or leniency, where defendant was almost 18 years of age when his confession was made, he was advised of his rights on three occasions, and any psychological tactic used by police did not overbear his free will. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702.

The motion to suppress the Miranda-warned confession because it was tainted by the first unwarned questioning was denied where there were none of the characteristics of the coercive atmosphere found in Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985), during the first unwarned questioning. Dye v. State, 69 Ark. App. 15, 9 S.W.3d 539 (2000).

Where an officer was called to a disturbance at defendant's home, the officer's general question to defendant who had been hiding in the woods of “What's up?” was a general term of salutation and was not designed to elicit an incriminating response; thus, defendant's incriminating statements regarding incest, made in reply to the responding officer's salutation, were admissible. Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003).

In a sexual abuse case, the court properly denied defendant's motion to suppress his confession where it was voluntarily made and he offered no evidence to establish a nexus between the conduct of the police and his statement, nor anything that would have proven a link between “coercive activity of the State” and his resulting confession; defendant did not claim that he confessed because the police directed someone to beat him up in his cell the night before he gave his statement, nor did he allege any kind of actual police coercion of any sort but, instead, simply argued that the officer knew that people charged with crimes against children were treated badly. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004).

In defendant's rape case, the court properly denied defendant's motion to suppress his confession where defendant was informed of his Miranda rights, he signed a statement-of-rights form, and the officer did not make any threats or promises in exchange for the confession. Pratt v. State, 359 Ark. 16, 194 S.W.3d 183 (2004).

Trial court did not err in allowing defendant's confession to capital murder as the police had properly advised defendant of his Miranda rights, and the totality of the circumstances surrounding the interrogation by the police revealed both an uncoerced choice and the requisite level of comprehension by defendant. Wilkerson v. State, 365 Ark. 349, 229 S.W.3d 896 (2006).

Defendant's confession was voluntary because the only evidence of police misconduct was defendant's self-serving testimony; an officer testified that he did nothing to induce the confession, and neither he nor another officer told defendant that they would keep defendant from going to jail. Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007).

Defendant's confession was voluntary because there was no evidence of threats on the videotaped portion of defendant's statement or any physical evidence of force being used on defendant, defendant was 34 years old, there was no indication that he had a below-normal intelligence, and the statement was taken within a few hours after defendant's arrest and after only a short period of interrogation. Goodwin v. State, 373 Ark. 53, 281 S.W.3d 258 (2008).

There is no constitutional right to recordation of all phases of police interrogation leading to a confession under the Due Process Clause of this section. No Arkansas law requires the police to record an interrogation in its totality, and while an appellate court reviewing the voluntary nature of a confession will consider the absence of a recording as a factor in the totality of the circumstances mix, the court will not invalidate a confession for that reason alone. Clark v. State, 374 Ark. 292, 287 S.W.3d 567 (2008).

Confession given in a murder case was not suppressed; defendant was an adult with a high-school equivalency education, he was coherent, and he was in fair physical condition. Neither the fact that defendant had known one of the officers involved for many years nor the officer's offer of help rendered the statement involuntary. Seaton v. State, 101 Ark. App. 201, 272 S.W.3d 854 (2008).

Police did not coerce defendant's confession because, although he had an IQ of 84, he obtained a G.E.D. while incarcerated, and he was no stranger to the criminal-justice system, having been interviewed, and given voluntary statements perhaps as many as six times; officers agreed that defendant understood and waived his rights and gave a statement voluntarily and knowingly. Winters v. State, 2013 Ark. 193, 427 S.W.3d 597 (2013).

—Coroner's Inquest Testimony.

Evidence may be admitted which was given by accused when she was a witness at the coroner's inquest after being warned that she need not testify and, if she did, the evidence would be used against her. Dunham v. State, 207 Ark. 472, 181 S.W.2d 242 (1944).

—Fingerprinting.

In order to establish the identification of persons suspected or accused of crimes, such persons may be required to submit to finger printing without invading their natural or constitutional rights. Shannon v. State, 207 Ark. 658, 182 S.W.2d 384 (1944).

Defendant's rights were not abridged where he consented to being fingerprinted during an interrogation by police after being stopped near the scene of a rape and burglary. Loomis v. State, 261 Ark. 803, 551 S.W.2d 546 (1977).

—Grand Jury Testimony.

An indictment for perjury for false swearing before the grand jury in a criminal indictment against the perjurer must allege that the accused appeared voluntarily. Claborn v. State, 115 Ark. 387, 171 S.W. 862 (1914).

Defendant's testimony on trial may be impeached by calling foreman of grand jury to testify as to defendant's testimony before the grand jury. Pinkerton v. State, 126 Ark. 201, 190 S.W. 110 (1916).

Witnesses may be compelled to testify before grand jury under statute so requiring and which prevents such testimony from being used against witness in a criminal case. Baker v. State, 177 Ark. 13, 5 S.W.2d 337 (1928).

Where a defendant requested permission to appear before the grand jury, and after being advised that he was not required to give any testimony, freely and voluntarily made detailed statements, it was not error to admit such statements in evidence. Bratton v. State, 213 Ark. 537, 211 S.W.2d 428 (1948).

—Mental Examination Results.

Where the judge had reasonable grounds to believe the defendant's plea would be insanity, he was authorized to send defendant to the State Hospital for examination; the report of the examining doctor was introduced and the defendant was not thereby compelled to give evidence against himself. Clements v. State, 213 Ark. 460, 210 S.W.2d 912 (1948).

—Physical Evidence.

Although appellant's custodial statements made after he invoked his right to counsel were suppressed, the recording of the victim's voice on appellant's cell phone that he played for the officers during his statements was not a testimonial statement made by appellant and was properly admitted into evidence. Lewis v. State, 2017 Ark. 211, 521 S.W.3d 466 (2017).

Under United States v. Patane, 542 U.S. 630, 124 S. Ct. 2620, 159 L. Ed. 2d 667 (2004), the lack of a Miranda warning does not justify the suppression of the physical evidence seized pursuant to a search warrant derived from a voluntary un-warned statement. Because the Arkansas Constitution mirrors the federal constitution, and because the Supreme Court of Arkansas has not been provided any reason why it should interpret the provisions differently, the Supreme Court adopts the United States Supreme Court's holding in Patane . Lewis v. State, 2017 Ark. 211, 521 S.W.3d 466 (2017).

—Physical Examination Results.

Since no person is compelled to be a witness against himself in a criminal case, testimony of physician as to the physical condition of defendant was held to be prejudicial error. Bethel & Wallace v. State, 178 Ark. 277, 10 S.W.2d 370 (1928).

—Prior Conviction.

Where the claim of privilege is apparently well founded but the state asserts a claim of prior conviction as robbing the testimony of its incriminating effect, the burden is on the state to establish such prior conviction. Rhea v. State, 226 Ark. 581, 291 S.W.2d 505 (1956).

Even though defendant was also charged as a habitual offender, there was no error in the court's allowing him to be cross-examined concerning prior conviction and even ask if he was not a habitual criminal. Coleman v. State, 256 Ark. 665, 509 S.W.2d 824 (1974).

—Suppression Denied.

Trial court properly denied defendant's motion to suppress incriminating statements he made to his friend who was wearing a recording device for police because, when defendant made the statement to his friend, they were sitting on a park bench with no police visible or restriction of defendant's freedom; the fact that the friend was acting as an agent of the police did not render the setting “custodial” in any sense. Hall v. State, 361 Ark. 379, 206 S.W.3d 830 (2005).

Trial court did not err in denying defendant's motion to suppress statements he made to the police even though he had been shot, admitted he had taken drugs, and was given pain medication as there was no indication that defendant was in too much pain to talk and defendant never indicated that he wanted the questioning to stop. Holloway v. State, 363 Ark. 254, 213 S.W.3d 633 (2005).

Trial court did not err in denying defendant's motion to suppress statements that were made while in custody as defendant had been given his Miranda warnings when he was first arrested and, during the course of an interview the following day, defendant made his incriminating statements that were not in response to any direct questioning by the officers. Williams v. State, 363 Ark. 395, 214 S.W.3d 829 (2005).

Trial court did not err by refusing to suppress defendant's statement to jailer as defendant clearly initiated communication with the police and waived her right to counsel.Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006).

Defendant's statement that a crack pipe was his was properly admitted into evidence because, although defendant had been arrested and no Miranda warning had been given, no officer was interrogating defendant when he made the statement; thus, defendant's self-incrimination privilege was not violated. Swan v. State, 94 Ark. App. 115, 226 S.W.3d 6 (2006).

Motion to suppress statements made in a drug case was properly denied because a trial court believed an officer's statement that both defendants made voluntary statements about pills found in a truck after their rights were read; defendants stated that they were purchasing pseudoephedrine so that a friend could cook drugs. Champlin v. State, 98 Ark. App. 305, 254 S.W.3d 780 (2007).

As defendant was not restrained in any way while sitting in an officer's car after a routine traffic stop, and the officer's actions and questioning up until he Mirandized defendant after learning of a warrant for his arrest did not rise to those of a formal arrest, there had been no custodial interrogation and Miranda warnings had not been required. Marcyniuk v. State, 2010 Ark. 257, 373 S.W.3d 243 (2010).

Court properly denied defendant's motion to suppress his statement because, after being advised of his Miranda rights, defendant stated that he would not answer any questions because “there's nothing for him to say because the police already had his weed.” There was no evidence that the officer's initial failure to advise defendant of his Miranda rights on the roadside was purposeful or part of an interrogation-first tactic. Jackson v. State, 2013 Ark. 201, 427 S.W.3d 607 (2013).

—Undercover Agent.

There was nothing unreasonable in the fact that an undercover agent was introduced in defendant's cell in connection with conduct that was unrelated to his incarceration. Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979).

—Waiver.

Where, in a prosecution for capital murder, the defendant voluntarily gave a confession after being advised of his rights and given an opportunity to engage an attorney, he knowingly and intelligently waived his right against self-incrimination. Rodgers v. State, 261 Ark. 293, 547 S.W.2d 419 (1977).

Where the police failed to follow counsel's instructions to stop questioning or to inform the suspect of counsel's efforts to reach him, their actions did not affect the validity of an otherwise proper waiver of defendant's right against self-incrimination. Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991).

Defendant's confusion as to whether unrecorded comments to police officers could be used against him did not invalidate a knowing and intelligent waiver of his right to remain silent. Bogard v. State, 311 Ark. 412, 844 S.W.2d 347 (1993).

Where the trial court had concluded that the appellant waived her privilege against self-incrimination, the burden was on the appellant, on appeal, to demonstrate any error on the part of the trial court in finding there was a waiver. Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994).

Whether an accused had sufficient mental capacity to waive his constitutional rights, or was too incapacitated due to drugs or alcohol to make an intelligent waiver, is a question of fact for the trial court to resolve. The fact that the accused might have been intoxicated at the time of his statement, alone, will not invalidate that statement, but will only go to the weight accorded it. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943, cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 334 (1996).

The court looked at the totality of the circumstances surrounding the interrogation and determined that the state proved that the defendant had the requisite level of comprehension to knowingly waive his rights. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000).

Defendant voluntarily waived his Miranda rights where he verbally indicated that he understood them, he initialed each of his responses and signed the waiver, and defendant appeared to be alert and responsive and did not seem to have any problem understanding his rights as they were explained to him. Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005).

Court did not err in concluding that a juvenile defendant with an IQ of 68 voluntarily signed the Miranda waiver form where he was carefully explained his rights, the process was free from coercion, and defendant did so with full awareness of the nature of the rights being waived and the consequences of the decision to abandon them. Otis v. State, 364 Ark. 151, 217 S.W.3d 839 (2005).

Where (1) detective spoke with defendant in an interview room and said he would like to speak with defendant regarding the case, (2) defendant invoked his right to remain silent and his right to counsel, (3) the detective then proceeded to question defendant only regarding a criminal investigation division (CID) information form, and (4) defendant spontaneously indicated that he wanted to talk and was then given his Miranda rights, there was no evidence of coercion and it was clear that defendant was aware of the consequences of abandoning his right to remain silent and to have counsel present during questioning; thus, the trial court did not err in denying defendant's motion to suppress his custodial statement. Marshall v. State, 92 Ark. App. 188, 211 S.W.3d 597 (2005).

Defendant's statement to police was voluntary because his statement, “you'll furnish me a public defender,” was an equivocal request for counsel, made in the middle of the officer's recitation of the rights on the Miranda form, signifying that defendant was merely repeating what the officer had just told him; further, defendant indicated that he understood his rights and he signed the waiver of rights form. Holsombach v. State, 368 Ark. 415, 246 S.W.3d 871 (2007).

Cited: State v. Whitlock, 41 Ark. 403 (1883); Texas v. St. Louis R.R., 41 Ark. 488 (1883); State v. Jackson, 46 Ark. 137 (1885); McDonald v. State, 155 Ark. 142, 244 S.W. 20 (1922); Rowland v. State, 213 Ark. 780, 213 S.W.2d 370 (1948); Harlow v. Ryland, 218 Ark. 659, 238 S.W.2d 502 (1951); Ex parte Faulkner, 221 Ark. 37, 251 S.W.2d 822 (1952); Green v. State, 222 Ark. 308, 259 S.W.2d 142 (1953); Mitchell v. State, 229 Ark. 469, 317 S.W.2d 1 (1958); Bennett v. NAACP, 236 Ark. 750, 370 S.W.2d 79 (1963); City of Little Rock v. Andres, 237 Ark. 658, 375 S.W.2d 370 (1964); Swanson v. State, 251 Ark. 147, 471 S.W.2d 351 (1971); Smith v. State, 256 Ark. 425, 508 S.W.2d 54 (1974); Wilson v. City of Pine Bluff, 278 Ark. 65, 643 S.W.2d 569 (1982); Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984); Grooms v. State, 283 Ark. 224, 675 S.W.2d 353 (1984); Bailey v. State, 284 Ark. 379, 682 S.W.2d 734 (1985); Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985); Williamson v. Lockhart, 636 F. Supp. 1298 (E.D. Ark. 1986); Williams v. State, 289 Ark. 443, 711 S.W.2d 825 (1986); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989); Pursley v. State, 302 Ark. 471, 791 S.W.2d 359 (1990); Gallagher v. City of Van Buren, 30 Ark. App. 193, 786 S.W.2d 837 (1990); Beard v. State, 306 Ark. 546, 816 S.W.2d 860 (1991); Honor v. Yamuchi, 307 Ark. 324, 820 S.W.2d 267 (1991); Enoch v. State, 37 Ark. App. 103, 826 S.W.2d 291 (1992); Duncan v. State, 308 Ark. 205, 823 S.W.2d 886 (1992); Leonards v. E.A. Martin Mach. Co., 321 Ark. 239, 900 S.W.2d 546 (1995); Cook v. State, 321 Ark. 641, 906 S.W.2d 681 (1995); O'Neill v. State, 322 Ark. 299, 908 S.W.2d 637 (1995); Childress v. Humphrey, 329 Ark. 504, 950 S.W.2d 220 (1997); Priest v. UPS, 58 Ark. App. 282, 950 S.W.2d 476 (1997); Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998); Conway v. State, 333 Ark. 125, 62 Ark. App. 125, 969 S.W.2d 669 (1998); Schalk v. State, 63 Ark. App. 251, 977 S.W.2d 495 (1998); Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002); Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152 (2004); Clark v. State, 358 Ark. 469, 192 S.W.3d 248 (2004); Young v. State, 370 Ark. 147, 257 S.W.3d 870 (2007).

§ 9. Excessive bail or punishment prohibited — Witnesses — Detention.

Excessive bail shall not be required; nor shall excessive fines be imposed; nor shall cruel or unusual punishments be inflicted; nor witnesses be unreasonably detained.

Research References

ALR.

Propriety of carrying out death sentences against mentally ill individuals. 111 A.L.R.5th 491.

When does forfeiture of real property violate excessive fines clause of Eighth Amendment or state constitutions — State cases. 124 A.L.R.5th 509.

Prison Inmate's Eighth Amendment Rights to Treatment for Sleep Disorders. 68 A.L.R.6th 389.

Retroactive Application, in Postconviction Proceedings, of Constitutional Rule of Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), that Mandatory Life Sentence Without Parole for Those Under Age of 18 at Time of Their Homicide Crimes Violates Eighth Amendment's Prohibition of Cruel and Unusual Punishments. 102 A.L.R.6th 637 (2015).

Adequacy Under Strickland Standard of Defense Counsel's Representation of Client in Sentencing Phase of State Court Death Penalty Case — Investigation of, and Presentation of Evidence Regarding Client's Low Intelligence or Mental Retardation. 5 A.L.R.7th Art. 6 (2015).

Prison Inmate’s or Pretrial Detainee’s Eighth Amendment Rights, or Rights Related to Claims of “Deliberate Indifference,” with Respect to Pregnancy. 5 A.L.R.7th Art. 7 (2015).

Construction and Application of Rule Announced in Miller v. Alabama that Sentences of Life Without Parole for Persons Under 18 at Time of Committing Homicide Offense Violate Eighth Amendment If Mandatory and Imposed Without Considering Youth-Related Factors. 16 A.L.R.7th Art. 4 (2015).

Construction and Application of Eighth Amendment's Prohibition of Cruel and Unusual Punishment — U.S. Supreme Court Cases. 78 A.L.R. Fed. 2d 1.

Ark. L. Rev.

Killenbeck, And Then They Did … ? Abusing Equity in the Name of Justice, 44 Ark. L. Rev. 235.

Note: Henderson v. Arkansas: One Strike and You're Out — Does the Arkansas Constitution Provide Its Citizens with More Protection Than the United States Constitution in the Context of Cruel and/or Unusual Punishment?, 56 Ark. L. Rev. 229.

Note, Pass the Discretion Please — The Supreme Court Defers to State Legislatures in Interpreting What is Left of the Eighth Amendment's Proportionality Principle, 58 Ark. L. Rev. 425.

The New Judicial Federalism Takes Root in Arkansas, 58 Ark. L. Rev. 883.

Case Notes

Bail.

The right to bail pending appeal after conviction is a matter of judicial discretion in the individual case. Lane v. State, 217 Ark. 428, 230 S.W.2d 480 (1950).

In view of mandate that money bail should be used only as a last resort to ensure the court appearance of an accused, the circuit court erred in refusing to require the municipal court to make a determination that no other condition would ensure accused's court appearance before setting money bail. Thomas v. State, 260 Ark. 512, 542 S.W.2d 284 (1976).

Punishment.

Any challenge by the defendant to the death penalty as a cruel and unusual punishment contrary to the Constitution was moot, for he was sentenced to life imprisonment without parole. Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976).

Where defendant had three prior felony convictions and was convicted of four separate counts of aggravated robbery, a sentence of four consecutive life sentences was neither an abuse of discretion nor cruel and unusual punishment. Duncan v. State, 267 Ark. 41, 588 S.W.2d 432 (1979).

No punishment prescribed by statute is cruel and unusual unless it is barbarous, or unknown to the law, or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979).

Inmate who asserted wool blankets caused him to suffer rashes did not show a serious medical need that would have supported a claim of a violation of this section or § 16-123-105 of the Arkansas Civil Rights Act; the inmate's condition was not one that mandated treatment even though it may have been diagnosed by a doctor and, while the evidence showed he indeed suffered from discomfort and rashes, he had been provided with adequate treatment for those symptoms. Williams v. Ark. Dep't of Corr., 362 Ark. 134, 207 S.W.3d 519, cert. denied, 546 U.S. 1018, 126 S. Ct. 647, 163 L. Ed. 2d 531 (2005).

Judgment entered against a prison warden in a state prison inmate's 42 U.S.C. § 1983 and Arkansas Civil Rights Act of 1993, § 16-123-101 et seq., suit was reversed because the evidence did not support the district court's finding that the warden was deliberately indifferent to the inmate's safety, in violation of the inmate's rights under U.S. Const. Amend. VIII and the Arkansas Constitution: (1) the warden had investigated the grievances that were filed against two corrections officers arising from their alleged mistreatment of prisoners, he had found that they were typical of grievances that were generally filed against corrections officers, and he had taken disciplinary action against the offending officer with regard to the one grievance that he found was substantiated; (2) the officers' employment records did not give the warden cause to believe that they presented a substantial risk to the safety of prisoners; and (3) the district court's disagreement with the warden's disciplinary choices, specifically the warden's failure to require the offending officer to participate in a remedial program in addition to the one-week suspension, temporary job reassignment, and reprimand that he received, was not sufficient to support the deliberate indifference finding. Lenz v. Wade, 490 F.3d 991 (8th Cir.), cert. denied, 552 U.S. 998, 128 S. Ct. 504, 169 L. Ed. 2d 353 (2007).

Defendant's sentence of two consecutive twenty-five year terms for two counts of delivery of a controlled substance in violation of former § 5-64-401(a)(1)(A)(i) could not be changed on appeal because it was within the legislative limits, it did not result from passion or prejudice, it was not a clear abuse of the jury's discretion and it was not grossly disproportionate so as to shock the moral sense of the community. Although it was defendant's first conviction and the substance delivered weighed less than a gram, he had made multiple deliveries in public places, was later arrested for possessing methamphetamine and a handgun, and was convicted for two separate offenses within a one-week period. Benjamin v. State, 102 Ark. App. 309, 285 S.W.3d 264 (2008).

—Consecutive Sentences.

The cumulative effect of consecutive sentences does not make punishment cruel and unusual; accordingly, where defendant was found guilty by a jury which imposed the maximum penalty and the trial court exercised its discretion in ordering the sentences to be served consecutively, the cumulative sentence of 160 years imprisonment and $160,000 fine was not barbarous, outside the law, or wholly disproportionate to the nature of the offense charged. Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983).

Imposition of consecutive sentences was not in violation of defendant's due process rights or the Eighth Amendment to the U.S. Constitution where the trial judge noted that the sentences imposed on each count were less than the maximum and that the approach was consistent with other jury sentences in the country; the trial judge clearly exercised discretion in accepting the jury's recommendation. Ford v. State, 99 Ark. App. 119, 257 S.W.3d 560 (2007).

—Corporal Punishment.

Corporal punishment of penitentiary inmates for infractions of prison discipline violates this section. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968).

—Death Penalty.

The death penalty did not constitute cruel and unusual punishment. Graham v. State, 253 Ark. 462, 486 S.W.2d 678 (1972).

In a suit challenging § 5-4-617, the prisoners failed to meet their burden under Ark. Const., Art. 2, § 9, where they had not shown that the proposed alternative drugs were available to the Arkansas Department of Correction for use in an execution. Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346 (2016), cert. denied, 137 S. Ct. 1067, 197 L. Ed. 2d 235 (2017).

In challenging a method of execution under Ark. Const., Art. 2, § 9, the burden falls squarely on a prisoner to show that (1) the current method of execution presents a risk that is sure or very likely to cause serious illness and needless suffering and that gives rise to sufficiently imminent dangers; and (2) there are known, feasible, readily implemented, and available alternatives that significantly reduce a substantial risk of severe pain. Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346 (2016), cert. denied, 137 S. Ct. 1067, 197 L. Ed. 2d 235 (2017).

Section 16-90-506(d)(1) is devoid of any procedure by which a death-row inmate has an opportunity to make an initial substantial threshold showing of insanity to trigger the hearing process; nor does the language of subdivision (d)(1) provide for an evidentiary hearing that comports with the fundamental principles of due process. Ward v. Hutchinson, 2018 Ark. 313, 558 S.W.3d 856 (2018).

Circuit court erred in dismissing an inmate's complaint because § 16-90-506(d)(1) was unconstitutional on its face and violated the due-process guarantees of the United States and Arkansas Constitutions. Ward v. Hutchinson, 2018 Ark. 313, 558 S.W.3d 856 (2018).

Executing appellant after 25 years in solitary confinement did not violate the prohibition against cruel and unusual punishment in the state and federal constitutions; appellant's argument that he had experienced a mental decline while awaiting execution was unavailing. Greene v. Kelley, 2018 Ark. 316 (2018).

Section 16-90-506(d)(1) is unconstitutional on its face and violates the due-process guarantees of the United States and Arkansas Constitutions; the Supreme Court overrules Singleton v. Endell, 316 Ark. 133, 870 S.W.2d 742 (1994), to the extent that it conflicts with this holding. Ward v. Hutchinson, 2018 Ark. 313, 558 S.W.3d 856 (2018).

—Electrocution.

Death by electrocution has been decided by the General Assembly as the means of execution in death penalty cases and, therefore, it is not up to the jury to decide how a defendant is to die, nor whether death by electrocution is cruel and unusual punishment; in addition it is not a circumstance to be considered when the jury deliberates on mitigating circumstances. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057, 101 S. Ct. 630, 66 L. Ed. 2d 511 (1980) (decision under prior law).

—Fines.

Former statute imposing penalty of $25 for each package of untaxed cigarettes possessed was not on its face unconstitutionally excessive. Walton v. Scott, 247 Ark. 268, 445 S.W.2d 97 (1969).

A civil punitive damages award does not fall within the constitutional prohibition against excessive fines in this section. Delta Sch. of Commerce, Inc. v. Harris, 310 Ark. 611, 839 S.W.2d 203 (1992).

Employers did not present the appellate court with any convincing argument regarding how or why the cases they cited were applicable in deciding whether the penalty under § 11-9-802(c) violated their rights under this section or Ark. Const., Art. 2, § 8, and did not develop their argument with citation to any case law addressing anything approaching the constitutionality of late-payment schemes analogous to § 11-9-802(c). Owens Planting Co. v. Graham, 2011 Ark. App. 444, 384 S.W.3d 634 (2011).

—Habitual Criminals.

Total sentence of 24 years on four charges of forging and uttering two checks totaling $77.46 under the habitual criminal provisions did not constitute cruel and unusual punishment. Wilson v. State, 251 Ark. 900, 475 S.W.2d 543 (1972).

—Insane Defendant.

The procedural requirement for the protection of an insane person's right not to be executed under this section and U.S. Const. Amend. 8, as set out in Marks v. United States, 430 U.S. 188 (1977), are met by § 16-90-506(d)(1). Singleton v. Endell, 316 Ark. 133, 870 S.W.2d 742, cert. denied, 513 U.S. 960, 115 S. Ct. 419, 130 L. Ed. 2d 334 (1994), overruled in part, Ward v. Hutchinson, 2018 Ark. 313, 558 S.W.3d 856 (2018).

—Killing to Prevent Escape.

Under the Constitution, the legislature can not impose the death penalty as punishment for a simple misdemeanor, and one arrested for such a misdemeanor was wrongfully killed when this was the only means to prevent his escape. Thomas v. Kinkead, 55 Ark. 502, 18 S.W. 854 (1892).

—Life Sentence.

The imposition of a life sentence under § 5-4-501(d) for aggravated robbery and theft of property did not constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution or this section. Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001).

Imposition of a life-without-parole sentence for a 17-year-old juvenile capital-felony-murder offender did not violate the juvenile's right against cruel and unusual punishment. Whiteside v. State, 2011 Ark. 371, 383 S.W.3d 859 (2011), vacated, 567 U.S. 950, 133 S. Ct. 65, 183 L. Ed. 2d 708 (2012).

—Mentally Retarded Defendants.

Commitment to the Department of Correction, following conviction for first-degree rape, of 18-year-old defendant who, it was testified, had a mental age of approximately nine years, did not constitute cruel and unusual punishment. Allen v. State, 253 Ark. 732, 488 S.W.2d 712 (1973).

—Punitive Damages.

In a conversion and interference with business and business expectancy action, the ratio between the punitive-damages award of $250,000, and the compensatory damages award of $35,000, was a ratio of approximately 7:1, was well within the acceptable range when reviewing that particular factor under recent United States Supreme Court rulings, and did not violate the prohibition against excessive fines and cruel and unusual punishment under U.S. Const. Amend. VIII. Hudson v. Cook, 82 Ark. App. 246, 105 S.W.3d 821 (2003).

—Separate Offenses.

Convictions of separate offenses of selling liquor without a license may be added without violating the cruel and unusual punishment prohibition of the Constitution. Ex parte Brady, 70 Ark. 376, 68 S.W. 34 (1902).

—Solitary Confinement.

Punishment by inflicting solitary confinement for contempt is cruel and unusual within the meaning of the constitutional prohibition. Williams v. State, 125 Ark. 287, 188 S.W. 826 (1916).

—Statutory Limits.

Punishment in excess of the punishment provided for grand larceny, but within the limit fixed for the larceny of a horse, is permissible where the stolen articles include a horse, buggy, and harness. Daugherty v. State, 130 Ark. 333, 197 S.W. 576 (1917).

A statute fixing punishment for the acceptance of bank deposits in an insolvent bank at imprisonment for not less than one year, and with no maximum, does not violate the Constitution as to cruel or unusual punishment. Collman v. State, 161 Ark. 351, 256 S.W. 357 (1923).

When the defendant was found guilty on each of two charges, and the punishment fixed was not in excess of the statutory provisions, the conviction will not be disturbed on grounds that it is cruel and unusual. Hicks v. State, 213 Ark. 108, 209 S.W.2d 451 (1948).

Statute fixing maximum penalty of seven years for conviction of manslaughter was not cruel and unusual punishment prohibited by Constitution because minimum for second degree murder was only five years; the legislature has right to fix length of sentences under each division of crime. Johnson v. State, 214 Ark. 902, 218 S.W.2d 687 (1949).

Victim Impact Statute.

Victim impact statute (§ 5-4-602(4)) is not void for vagueness and not violative of this section. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943, cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 334 (1996).

Inmate who had been sentenced to death was incorrect in his argument that the victim impact procedure was inadequate in not requiring the jury to find proof beyond a reasonable doubt as to victim statements; the court also specifically rejected the notion that victim-impact evidence is an aggravating circumstance or that it violates the statutory weighing process set out in §§ 5-4-6035-4-605. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151, cert. denied, 543 U.S. 932, 125 S. Ct. 326, 160 L. Ed. 2d 235 (2004).

In a capital murder case, the state was properly allowed to present three witnesses who discussed the impact of the victims' deaths because § 5-4-602 did not declare what victim-impact evidence was relevant in any given case — that issue was decided by the circuit court, and victim-impact evidence was relevant to assist the jury in imposing punishment based on a measurement of the injury to society. Thomas v. State, 370 Ark. 70, 257 S.W.3d 92, cert. denied, 552 U.S. 1025, 128 S. Ct. 620, 169 L. Ed. 2d 399 (2007).

Cited: Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968); State v. Bruton, 246 Ark. 293, 437 S.W.2d 795 (1969); Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996); Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996); Grayson v. Ross, 454 F.3d 802 (8th Cir. 2006).

§ 10. Right of accused enumerated — Change of venue.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed; provided, that the venue may be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, in such manner as now is, or may be prescribed by law; and to be informed of the nature and cause of the accusation against him, and to have a copy thereof; and to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to be heard by himself and his counsel.

Cross References. As to rules governing the right to a speedy trial, Ark. R. Crim. P. 28.1 et seq.

Change of venue, § 16-88-201 et seq.

Time for filing formal charge, Ark. R. Crim. P. 8.6.

Research References

ALR.

Sufficiency of efforts to procure missing witness' attendance so as to justify admission of his former testimony — state cases. 3 A.L.R.4th 87.

Adequacy of defense counsel's representation of criminal client regarding right to and incidents of jury trial. 3 A.L.R.4th 601.

Right of accused in criminal prosecution to presence of counsel at court-appointed or approved psychiatric examination. 3 A.L.R.4th 910.

Right of defendant in criminal proceeding to have immunity from prosecution granted to defense witness. 4 A.L.R.4th 617.

Adequacy of defense counsel's representation of criminal client regarding speedy trial and related matters. 6 A.L.R.4th 1208.

Adequacy of defense counsel's representation of criminal client regarding venue and recusation matters. 7 A.L.R.4th 942.

Waiver, after not guilty plea, of jury trial in felony case. 9 A.L.R.4th 695.

Continuances at instance of state public defender or appointed counsel over defendant's objections as excuse for denial of speedy trial. 16 A.L.R.4th 1283.

Conditions interfering with accused's view of witness as violation of right of confrontation. 19 A.L.R.4th 1286.

Waiver of right to counsel by insistence upon speedy trial in state criminal case. 19 A.L.R.4th 1299.

Right of accused to be present at suppression hearing or at other hearing or conference between court and attorneys concerning evidentiary questions. 23 A.L.R.4th 955.

Sexual psychopaths, bail pending determination of psychopathy under statutes relating to. 24 A.L.R.2d 373.

Timely brief in appeal by accused, consequences of prosecution's failure to file. 27 A.L.R.4th 213.

Effect on liability of bail bond surety of state's delay in obtaining indictment or bringing defendant to trial. 32 A.L.R.4th 600.

Validity of jury selection as affected by accused's absence from conducting of procedures for selection and impaneling of final jury panel for specific case. 33 A.L.R.4th 429.

Right of accused, in state criminal trial, to insist, over prosecutor's or court's objection, on trial by court without jury. 37 A.L.R.4th 304.

Admissibility or use in criminal trial of testimony given at preliminary proceeding by witness unavailable at trial. 38 A.L.R.4th 378.

Application of speedy trial statute to dismissal or other termination of prior indictment or information and bringing of new indictment or information. 39 A.L.R.4th 899.

Confidentiality, constitutionality, with respect to accused's rights to information or confrontation, of statute according confidentiality to sex crime victim's communications to sexual counselor. 43 A.L.R.4th 395.

Limitations on state prosecuting attorney's discretion to initiate prosecution by indictment or information. 44 A.L.R.4th 401.

Juror's reading of newspaper account of trial in state criminal case during its progress as ground for mistrial, new trial, or reversal. 46 A.L.R.4th 11.

Illness or incapacity of judge, prosecuting officer, or prosecution witness as justifying delay in bringing accused speedily to trial — state cases. 78 A.L.R.3d 297.

Adequacy of defense counsel's representation of criminal client — conduct at trial regarding issues of insanity. 95 A.L.R.5th 125.

Denial of, or interference with, accused's right to have attorney initially contact accused. 96 A.L.R.5th 327.

Failure of state prosecutor to disclose exculpatory medical reports and tests as violating due process. 101 A.L.R.5th 187.

Validity and efficacy of minor's waiver of right to counsel — cases decided since Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). 101 A.L.R.5th 351.

Failure of state prosecutor to disclose pretrial statement made by crime victim as violating due process. 102 A.L.R.5th 327.

Denial of accused's request for initial contact with attorney — drunk driving cases. 109 A.L.R.5th 611.

Adequacy of defense counsel's representation of criminal client regarding search and seizure issues — Motions and objections during trial and matters other than pretrial motions. 117 A.L.R.5th 513.

Denial of accused's request for initial contact with attorney in cases involving offenses other than drunk driving — Cases focusing on presence of inculpatory statements. 124 A.L.R.5th 1.

Adoption and application of “tainted” approach or “dual motivation” analysis in determining whether existence of single discriminatory reason for peremptory strike results in automatic Batson violation when neutral reasons also have been articulated. 15 A.L.R.6th 319.

Comment Note: Construction and Application of Supreme Court's Ruling in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), with Respect to Confrontation Clause Challenges to Admissibility of Hearsay Statement by Declarant Whom Defendant Had No Opportunity to Cross-Examine. 30 A.L.R.6th 1.

Adequacy of Defense Counsel's Representation of Criminal Client Regarding Guilty Pleas — Probation, Parole, or Pardon Possibilities. 31 A.L.R.6th 49.

Determination of Request for Exclusion of Public from State Criminal Trial in Order to Preserve Safety, Confidentiality, or Well-Being of Witness Who Is Not Undercover Police Officer — Issues of Proof, Consideration of Alternatives, and Scope of Closure. 32 A.L.R.6th 171.

Basis for Exclusion of Public from State Criminal Trial in Order to Preserve Safety, Confidentiality, or Well-Being of Witness Who Is Not Undercover Police Officer. 33 A.L.R.6th 1.

Validity, Construction, and Application of Right of Defendant in State Criminal Proceeding to Jury Composed Solely of United States Citizens. 36 A.L.R.6th 189.

Propriety of use of multiple juries at joint trial of multiple defendants in state criminal prosecution. 41 A.L.R.6th 295.

Adequacy of Defense Counsel's Representation of Criminal Client Regarding Entrapment Defense — State Cases. 43 A.L.R.6th 475.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — In Nonpolice Vehicle for Traffic Stop. 56 A.L.R.6th 323.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation — At Nonpolice Vehicle for Other Than Traffic Stop. 57 A.L.R.6th 83.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect be Informed of Federal Constitutional Rights Before Custodial Interrogation — Where Unspecified as to Precise Location of Roadside Questioning by Law Enforcement Officers. 58 A.L.R.6th 215.

What Constitutes “Custodial Interrogation” Within Rule of Miranda v. Arizona Requiring That Suspect be Informed of Federal Constitutional Rights Before Custodial Interrogation — At Suspect's Place of Employment or Business. 58 A.L.R.6th 439.

What Constitutes “Custodial Interrogation” Within Rule of Miranda v. Arizona Requiring That Suspect be Informed of Federal Constitutional Rights Before Custodial Interrogation — At School. 59 A.L.R.6th 393.

Adequacy of Defense Counsel's Representation of Criminal Client Regarding Search and Seizure Issues — Pretrial Motions — Suppression Motions Where No Warrant Involved. 71 A.L.R.6th 1.

Propriety and Prejudicial Effect of Requiring Defendant to Wear Stun Belt or Shock Belt During Course of State Criminal Trial. 71 A.L.R.6th 625.

Adequacy of Defense Counsel's Representation of Criminal Client Regarding Search and Seizure Issues — Pretrial Motions — Suppression Motions Where Warrant Was Involved. 72 A.L.R.6th 1.

Adequacy of Defense Counsel's Representation of Criminal Client Regarding Search and Seizure Issues — Pretrial Motions — Motions Other than for Suppression. 73 A.L.R.6th 1.

Construction and Application by State Courts of Supreme Court's Ruling in Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), That Defense Counsel Has Obligation to Advise Defendant That Entering Guilty Plea Could Result in Deportation. 74 A.L.R.6th 373.

Necessity or Propriety of Court's Provision of Cocounsel to Criminal Defendant Who Is Already Represented by Counsel — State Prosecutions. 83 A.L.R.6th 465.

Comment Note: Propriety and Prejudicial Effect of Compelling Accused to Wear Prison Clothing at Jury Trial — State Cases. 99 A.L.R.6th 295 (2014).

Criminal Defendant's Age or Height as Factor in Determination of Whether Circumstances of Witness's Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 102 A.L.R.6th 365 (2015).

Adequacy, Under Strickland Standard, of Defense Counsel's Representation of Client in Sentencing Phase of State Court Death Penalty Case — Investigation of, and Presentation of Evidence Regarding, Client's Brain Damage or Abnormality. 102 A.L.R.6th 417 (2015).

Adequacy of Defense Counsel's Representation of Criminal Client — Daubert or Frye Challenge to Expert Witness or Testimony. 103 A.L.R.6th 247 (2015).

Witness’s Identification of Criminal Defendant, as Person in Photograph Shown by Police, as Resulting from Impermissibly Suggestive Circumstances, as Matter of Federal Constitutional Law, Where Police Showed Single Witness Fewer than Six Photographs in One Session. 1 A.L.R.7th Art. 6 (2015).

Adequacy, Under Strickland Standard, of Defense Counsel’s Representation of Client in Sentencing Phase of State Court Death Penalty Case — Allegedly Deficient Preparation of Witness or Presentation of Evidence Regarding Client’s Mental Illness or Dysfunction. 2 A.L.R.7th Art. 1 (2015).

Clothing Worn by Criminal Defendant in Photograph in Array Shown by Police to Witness as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant, as Person in Photograph, Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 2 A.L.R.7th Art. 2 (2015).

Application of Crawford Confrontation Clause Rule to Alcohol and Drug Forensic Analysis and Related Documents. 3 A.L.R.7th Art. 4 (2015).

Distinctive Quality of Criminal Defendant’s Photograph in Array Shown by Police to Witness as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant, as Person in Photograph, Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 3 A.L.R.7th Art. 5 (2015).

Criminal Defendant’s Hair Color or Style as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 5 A.L.R.7th Art. 5 (2015).

Adequacy Under Strickland Standard of Defense Counsel’s Representation of Client in Sentencing Phase of State Court Death Penalty Case — Investigation of, and Presentation of Evidence Regarding Client’s Low Intelligence or Mental Retardation. 5 A.L.R.7th Art. 6 (2015).

Criminal Defendant’s Race or Skin Color as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 6 A.L.R.7th Art. 5 (2015).

Criminal Defendant’s Facial Hair as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 7 A.L.R.7th Art. 4 (2015).

Manner in which Photographic Array Shown by Police to Witness Is Displayed, or Police Officer’s Alleged Nonverbal Cues, as Factor in Determination of Whether Circumstances of Witness’s Identification of Criminal Defendant, as Person in Photograph within Array, Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 8 A.L.R.7th Art. 5 (2015).

Police Statement, Other than One that Photographic Array Shown to Witness Contained or Might Contain Criminal Suspect or Known Criminal, as Factor in Determination of Whether Circumstances of Witness’s Identification of Criminal Defendant, as Person in Photograph Within Array, Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 9 A.L.R.7th Art. 3 (2015).

Adequacy, Under Strickland Standard, of Defense Counsel’s Representation of Client in Sentencing Phase of State Court Death Penalty Case — Allegedly Deficient Investigation of, Other than Counsel’s Purported Complete Failure to Investigate, Client’s Mental Illness or Dysfunction. 9 A.L.R.7th Art. 4 (2015).

Adequacy, Under Strickland Standard, of Defense Counsel’s Representation of Client in Sentencing Phase of State Court Death Penalty Case — Investigation of Client’s Drug or Alcohol Use. 10 A.L.R.7th Art. 3 (2015).

Witness’s Identification of Criminal Defendant, as Person in Photograph Shown by Police, as Resulting from Impermissibly Suggestive Circumstances, as Matter of Federal Constitutional Law, where Police Showed Single Witness Photographs on More Than One Occasion. 10 A.L.R.7th Art. 5 (2015).

Witness’s Identification of Criminal Defendant, as Person in Photograph Shown by Police, as Resulting from Impermissibly Suggestive Circumstances, as Matter of Federal Constitutional Law, where Police Showed Photographs to Multiple Witnesses. 11 A.L.R.7th Art. 3 (2015).

Adequacy, Under Strickland Standard, of Defense Counsel’s Representation of Client in Sentencing Phase of State Court Death Penalty Case — Deficient Presentation of Evidence, or Failure to Present Evidence, Regarding Client’s Drug or Alcohol Use, Other than as Result of Lack of Investigation. 11 A.L.R.7th Art. 4 (2015).

Police Statement that Photographic Array Shown to Witness Contained or Might Contain Criminal Suspect or Known Criminal as Factor in Determination of Whether Circumstances of Witness’s Identification of Criminal Defendant, as Person in Photograph Within Array, Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 12 A.L.R.7th Art. 3 (2015).

Witness’s Identification of Criminal Defendant in Photographic Array Shown by Police, as Resulting from Impermissibly Suggestive Circumstances, as Matter of Federal Constitutional Law, Where Police Showed Two or More Photographs of Defendant in Same Array. 15 A.L.R.7th Art. 4 (2015).

Mug Shot Characteristics of Criminal Defendant’s Photograph as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 16 A.L.R.7th Art. 3 (2015).

Claims of Ineffective Assistance of Counsel in Death Penalty Proceedings — United States Supreme Court Cases. 31 A.L.R. Fed. 2d 1.

Construction and Application of Sixth Amendment Right to Counsel — Supreme Court Cases. 33 A.L.R. Fed. 2d 1.

Adequacy of Defense Counsel's Representation of Criminal Client Regarding Entrapment Defense — Federal Cases. 42 A.L.R. Fed. 2d 145.

Comment Note: Ineffective Assistance of Counsel in Removal Proceedings — Legal Bases of Entitlement to Representation and Requisites to Establish Prima Facie Case of Ineffectiveness. 58 A.L.R. Fed. 2d 363.

Comment Note: Ineffective Assistance of Counsel in Removal Proceedings — Particular Acts. 59 A.L.R. Fed. 2d 151.

Comment Note: Ineffective Assistance of Counsel in Removal Proceedings — Particular Omissions or Failures. 60 A.L.R. Fed. 2d 59.

Construction and Application of Sixth Amendment Right to Speedy Trial — Supreme Court Cases. 17 A.L.R. Fed. 3d Art. 4 (2016).

Application of Crawford Confrontation Clause Rule to DNA Analysis and Related Documents, 17 A.L.R.7th Art. 3 (2018).

Criminal Defendant's Weight, Build or Body Type as Factor in Determination of Whether Circumstances of Witness's Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law, 17 A.L.R.7th Art. 5 (2018).

Application of Crawford Confrontation Clause Rule to Autopsy Testimony and Related Documents, 18 A.L.R.7th Art. 6 (2018).

Circumstances Giving Rise to Prejudicial Conflict of Interests Between Criminal Defendant and Defense Counsel — State Cases Concerning Waiver of Conflict: Form and Context of Waiver, Duty of Court and Counsel, Responsibilities of Defendant, Impact of Applicable Rules and Regulations, Colloquy Related to Waiver, and Discretion and Analysis of Court, 19 A.L.R.7th Art. 3 (2018).

Criminal Defendant's Glasses, Jewelry, or Gold Teeth as Factor in Determination of Whether Circumstances of Witness's Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law, 19 A.L.R.7th Art. 7 (2018).

Criminal Defendant's Tattoos, Scars, or Injuries as Factor in Determination of Whether Circumstances of Witness's Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law, 21 A.L.R.7th Art. 6 (2018).

Criminal Defendant's Eyes, Lips, Nose, Ears, or Other Facial Feature or Expression as Factor in Determination of Whether Circumstances of Witness's Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law, 23 A.L.R.7th Art. 6 (2018).

Release of Criminal Defendant's Photograph to Media as Factor in Determination of Whether Circumstances of Witness's Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law, 23 A.L.R.7th Art. 7 (2018).

Construction and Application of American Bar Association Standards in Determining Ineffective Assistance of Counsel, 24 A.L.R.7th Art. 5 (2018).

Presence of Criminal Defendant in Prior Physical Show-up, Physical Lineup, or Surveillance Video as Factor in Determination of Whether Circumstances of Witness's Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law, 24 A.L.R.7th Art. 8 (2018).

Application of Confrontation Clause Rule to Interpreter's Translations or Other Statements — Post-Crawford Cases, 26 A.L.R.7th Art. 1 (2018).

Right to Effective Counsel and Adequacy of Defense Counsel's Representation Concerning Sex Offender Civil Commitment, 37 A.L.R.7th Art. 3 (2018).

Am. Jur. 21A Am. Jur. 2d, Criminal Law, § 880 et seq.

Ark. L. Rev.

Rights to Counsel Required by the Fourteenth Amendment in State Criminal Prosecutions, 4 Ark. L. Rev. 177.

Continuances in Arkansas, 4 Ark. L. Rev. 449.

Case Notes — Courts — Contempt — Photographing Court Proceedings, 11 Ark. L. Rev. 174.

The Right to Counsel for Misdemeanants in State Courts, 20 Ark. L. Rev. 156.

Speedy Trial: A Comparative Analysis Between the American Bar Association Standards of Criminal Justice and Arkansas Law, 25 Ark. L. Rev. 234.

Note, Speedy Trial and Excludable Delays Under the Arkansas Rules of Criminal Procedure: Norton v. State, 35 Ark. L. Rev. 591.

Notes, Shockley v. State: The Constitutionality of the Arkansas Habitual Offender Determination Procedure, 39 Ark. L. Rev. 553.

Note, The Arkansas Rape-Shield Statute: Does It Create Another Victim?, 58 Ark. L. Rev. 949.

Raelynn J. Hillhouse, Recent Developments: The Right to a Fair Cross-Section of the Community and the Black Box of Jury Pool Selection in Arkansas, 71 Ark. L. Rev. 1063 (2019).

C.J.S. 16C C.J.S. Constitutional Law, § 1610 et seq.

U. Ark. Little Rock L. Rev.

Cassandra Howell, Note: Braving Confrontation: Arkansas's Progressive Position Regarding Criminal Defendants' Confrontation Rights at Sentencing, 35 U. Ark. Little Rock L. Rev. 691 (2013).

Case Notes

Purpose.

The purpose of this section is to expedite adjudications so that none can fairly say that the right to acquittal was stifled because those charged with official duty preferred to procrastinate. Maxwell v. State, 216 Ark. 393, 225 S.W.2d 687 (1950), cert. denied, 343 U.S. 929, 72 S. Ct. 758, 96 L. Ed. 1339 (1952).

Affirmative Defenses.

Defendant's due process rights were not violated by trial court's decision to refuse to allow the introduction of a mistake-of-age defense in a rape trial because the legislature had the authority to define crimes and defenses; moreover, there were exceptions to the rule that every crime was required to contain a mens rea element. Gaines v. State, 354 Ark. 89, 118 S.W.3d 102 (2003).

Although defendant claimed that he was denied the ability to present evidence of the context in which the sexual abuse allegations were made and thus was unable to adduce significant evidence of the victim's true motive, defendant elicited testimony during the trial from the victim as to another possible motive for accusing defendant; thus, it was not that defendant was not allowed to present a defense, but rather that he was not allowed to present the defense he wanted due to the exclusion of the victim's prior sexual conduct, which was proper under § 16-42-101. Jackson v. State, 368 Ark. 610, 249 S.W.3d 127, cert. denied, 552 U.S. 850, 128 S. Ct. 112, 169 L. Ed. 2d 79 (2007).

Defendant did not show a deprivation of his constitutional right to present a defense; the constitution permits the exclusion of evidence that is repetitive, only marginally relevant, or poses an undue risk of harassment, prejudice, or confusion of the issues, and evidence of third-party guilt that is irrelevant, or which is relevant but substantially outweighed by the danger of unfair prejudice or confusion because it is not sufficiently linked to the crime in question, is prohibited. Barefield v. State, 2019 Ark. 149, 574 S.W.3d 142 (2019).

Appellate Review.

Appellate counsel filed the notice of appeal four days after the judgment and, therefore, could have timely raised ineffective assistance of counsel in a motion for a new trial; defendant's argument, that the appellate court should have addressed claims of ineffective assistance first raised on direct appeal where it was apparent from the face of the record that an appellant received ineffective assistance of counsel and there was no possibility that the ineffectiveness was due to trial strategy, was without merit. Ratchford v. State, 357 Ark. 27, 159 S.W.3d 304 (2004).

Defendant complained on appeal about an alleged conflict of interest involving his attorney, but the court's research had not revealed a single case where the court considered an ineffective assistance conflict of interest argument on direct appeal in the absence of a proper objection in the trial court; because defendant failed to raise his argument in the trial court, the court held that he failed to preserve this issue for review, and defendant himself had conceded that it could have been that the resolution of the matter was to occur in a proceeding under Ark. R. Crim. P. 37, as many of the relevant decisions on the point came in postconviction proceedings. Rackley v. State, 371 Ark. 438, 267 S.W.3d 578 (2007).

Appellant did not obtain a ruling that application of Ark. R. Evid. 606(b) violated his right to a fair trial, and the court had held that the failure to obtain a ruling precluded review on appeal. Arnold v. State, 2012 Ark. 400 (2012).

Closing Argument.

Criminal defendants, whether juvenile or adult, in a jury or bench trial, have a fundamental right to make a closing argument. S.S. v. State, 361 Ark. 42, 204 S.W.3d 512 (2005).

Copy of Charge.

Although defendant is entitled to a copy of indictment before arraignment, the legislature may regulate manner of securing the right so as to force the payment of a fee for such copy. Howard v. State, 37 Ark. 265 (1881).

A copy of the indictment will be presumed to have been furnished, or the right thereto waived, in the absence of an affirmative showing of demand therefor or that a copy was not furnished. Wright v. State, 42 Ark. 94 (1883).

The failure of a clerk to furnish defendant a copy of the indictment 48 hours before arraignment is not grounds for an arrested judgment but for a new trial. McCoy v. State, 46 Ark. 141 (1885).

A copy of an indictment duly served is not invalidated by the mere omission, through clerical error, of the defendant's name in one place. Allison v. State, 74 Ark. 444, 86 S.W. 409 (1905).

The clerical omission of the showing that the indictment was endorsed by the grand jury as a true bill in the copy furnished the defendant does not furnish grounds to quash. Glover v. State, 116 Ark. 588, 172 S.W. 876 (1915).

The statute which regulates the contents of an indictment does not violate the constitutional provision that the accused shall enjoy the right to be informed of the nature and cause of the accusation against him. Smith v. State, 231 Ark. 235, 330 S.W.2d 58 (1959).

Where defendant was found guilty of manslaughter as a lesser included offense, defendant was informed of the nature of the accusation against him. Slavens v. State, 1 Ark. App. 245, 614 S.W.2d 529 (1981).

When there is no valid charging instrument, and yet the defendant is convicted in a court of limited jurisdiction, there is a void judgment of conviction in the court of limited jurisdiction; a void judgment cannot provide valid notice for a subsequent proceeding in circuit court. Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993).

The harmless error doctrine will not be applied in a case in which a criminal defendant was never charged. Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993).

The Rules of Criminal Procedure provide for the issuance of a warrant, citation, or summons to command an accused to court on a misdemeanor charge. Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993).

—Contents.

To ensure the right of a defendant to know the accusation against him, an indictment should (1) inform defendant that he is called upon to answer, (2) inform the court of a definite offense, and (3) protect defendant against a further prosecution. State v. Cadle, 19 Ark. 613 (1858) (decision under prior Constitution).

Although it is better and safer practice to include in an information or indictment the date on which or the time frame in which an offense occurred, it is not necessarily fatal to an indictment or information if such data is not included, unless time is an essential element of the offense. Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988).

Where a deputy city attorney signed a form affidavit and acknowledged that the affiant executed the instrument before him, and following the deputy city attorney's signature there was a separate return reflecting that the municipal judge examined the instrument and found that it demonstrated reasonable cause for the issuance of an arrest warrant for the offense shown, and on a separate form defendant acknowledged in writing that he received a trial notice from the municipal court that he was to be tried for third degree battery on July 1, 1992, the instrument signed by the affiant and the deputy city attorney met all of the notice requirements of due process under U.S. Const. Amend. 5, 6, and 14 and met the notice requirements of Ark. Const., Art. 2, § 8 and this section; while there may well have been irregularities in the form of the instrument, they were the sort of irregularities that were waived if not raised. Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993).

—Waiver.

A defendant at large on bail is not entitled to service of a copy of the indictment or a copy of the venire before trial. Dawson v. State, 29 Ark. 116 (1874).

A defendant may not object that he has not been furnished a copy of the indictment after he pleads to the indictment, declares himself ready for trial, the jury is impanelled, and the trial commenced. Johnson v. State, 43 Ark. 391 (1884), overruled in part, Carpenter v. Dressler, 76 Ark. 400, 89 S.W. 89 (1905).

A person accused of a capital offense waives his right to a copy of the indictment 48 hours before arraignment if he fails to object at the time of arraignment that no such copy has been furnished. Powell v. State, 74 Ark. 355, 85 S.W. 781 (1905).

Exculpatory Evidence.

Defendant's argument that the state's failure to pay for an additional blood-alcohol test violated her state and federal constitutional rights to gather exculpatory evidence was without merit since defendant stipulated to the accuracy of the 0.05% blood-alcohol test result and raised no argument demonstrating the necessity of a second test to an adequate defense. Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).

Impartial Jury.

In a case where the jury cannot agree, it is error for the court to instruct the jury that there is no conflict in testimony and that the law is plain and simple since the accused has the right to a speedy trial by an impartial jury. Parker v. State, 130 Ark. 234, 197 S.W. 283 (1917).

The question of impartiality of a jury is one of law; such a jury must consist of 12 impartial men whose impression of the merits of the cause is fixed by testimony after entering jury panel. Lane v. State, 168 Ark. 528, 270 S.W. 974 (1925).

A defendant accused of murder was not prejudiced by inadmissible matter when the court emphatically directed the jury that they should disregard such statements. McCabe v. State, 210 Ark. 1076, 199 S.W.2d 945, cert. denied, 331 U.S. 852, 67 S. Ct. 1733, 91 L. Ed. 1860 (1947).

The right of a defendant in a criminal prosecution to a trial by an impartial jury is guaranteed by this section of the Constitution. Bailey v. Henslee, 287 F.2d 936 (8th Cir.), cert. denied, 368 U.S. 877, 82 S. Ct. 121, 7 L. Ed. 2d 78 (1961).

When a right to a jury trial exists, a jury's proper composition is fundamental. Bailey v. Henslee, 287 F.2d 936 (8th Cir.), cert. denied, 368 U.S. 877, 82 S. Ct. 121, 7 L. Ed. 2d 78 (1961).

The question of a juror's qualification lies within the sound judicial discretion of the trial judge and defendant has the burden of showing the prospective juror's disqualification. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).

The constitutional guaranty of an impartial jury is a judicial question addressing itself to the sound discretion of the trial court and will not be reversed absent a manifest abuse of that discretion. Gonzalez v. State, 32 Ark. App. 10, 794 S.W.2d 620 (1990).

Trial court did not err in denying defendant's Batson challenge to the state's exclusion of a juror who stated that she knew defendant's daughter and that a guilty verdict would be difficult for her; the state offered a race-neutral explanation of excluding the juror because of her ties with defendant's daughter. Travis v. State, 371 Ark. 621, 269 S.W.3d 341 (2007).

State excluded a juror because the juror's son had recently been a defendant in a murder trial and the juror believed that her son was not guilty; the trial court found that this explanation was race-neutral and the court agreed and did not disturb the ruling. Travis v. State, 371 Ark. 621, 269 S.W.3d 341 (2007).

Based on the fact that a juror and a reverend worshipped together and the reverend was one of defendant's witnesses, the trial court upheld the state's strike of the juror and the court affirmed. Travis v. State, 371 Ark. 621, 269 S.W.3d 341 (2007).

State excused a juror because the juror worshipped with a reverend who was a witness for defendant, plus the state worried that the juror would have given the reverend more credibility because of the close ties that he had to the juror's mother; the trial court found this to be a sufficient race-neutral explanation and the court agreed. Travis v. State, 371 Ark. 621, 269 S.W.3d 341 (2007).

Because a juror prematurely decided defendant's guilt before hearing all the evidence and being instructed on the law, defendant's rights to a fair and impartial trial were violated; consequently, the circuit court erred in allowing the juror to remain on the jury. Conway v. State, 2012 Ark. 420 (2012).

—Bias.

Jurors are incompetent if they have formed an opinion as to the guilt or innocence of defendant even if they state that they can give a fair and impartial trial. Polk v. State, 45 Ark. 165 (1885).

Where jurors publicly expressed opinions indicating great prejudice against defendant with a definite opinion as to defendant's guilt, but denied such prejudice in qualifying as jurors, defendant is entitled to a new trial. Anderson v. State, 200 Ark. 516, 139 S.W.2d 396 (1940).

In a prosecution for assault, a remark by the prosecutor that the defendant could sell enough whiskey to pay a fine if imposed is highly prejudicial to defendant's right to an impartial jury trial where there was no evidence connecting the defendant with drinking or the sale of intoxicating liquor. Todd v. State, 202 Ark. 287, 150 S.W.2d 46 (1941).

Jurors who had formed opinions concerning the guilt or innocence of the defendant and who, while willing to alter such opinions upon hearing evidence to the contrary, declared they would retain such opinions until they heard such evidence prevented the jury from being a fair and impartial jury within the meaning of this section. Glover v. State, 248 Ark. 1260, 455 S.W.2d 670 (1970).

Where a juror acknowledged during voir dire that his nephew was a drug undercover agent and that he had talked with the nephew about his experiences, the juror's presumptive bias, even after court interrogation, was sufficient to require his exclusion from the trial of defendant for sale and delivery of a controlled substance. Pickens v. State, 260 Ark. 633, 542 S.W.2d 764 (1976).

The constitutional guarantee of an impartial jury required that a defendant be given a new trial where a juror failed to reveal his relationship to a prosecution witness and such relationship would have disqualified the juror if revealed. Baysinger v. State, 261 Ark. 605, 550 S.W.2d 445 (1977).

Where all of the jurors who served stated they believed they could give the defendants a fair and impartial trial, but nevertheless, 10 of those 12 had been subjected to extensive media coverage and several of them had formed an opinion that the defendants were guilty or would require proof of their innocence, the jury did not meet the requirements of this section. Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979).

Although the brother of a prospective juror, who was a police officer, did not testify, considering the role of this officer with reference to the initiation of the investigation, the search and the identification procedure, he could not be eliminated as one on whose complaint the prosecution was instituted, nor were prospective juror's answers on voir dire sufficient to eliminate him as one who was prevented by a relationship or by circumstances from acting impartially; hence, failure to sustain the challenge to this juror for cause was prejudicial error. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).

Where defendant submitted the affidavits of nine Arkansas County residents, each of whom opined that defendant could not receive a fair and impartial trial in the county, but defendant also indicated that an impartial jury was selected and that each juror in fact indicated that he or she had not formed an opinion about defendant's guilt or innocence based upon what had been printed in the area newspapers, there was no error in the trial court's denial of the motion for change of venue. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995), overruled, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), overruled in part, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

—Death Penalty.

Defendant's motion that prospective jurors who were opposed to death penalty not be excused was properly denied. Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976); Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057, 101 S. Ct. 630, 66 L. Ed. 2d 511 (1980).

—Panel.

In view of testimony of one of the jury commissioners and stipulations entered into on subject of racial discrimination by such commissioners, trial court did not violate impartial jury right of Negro who was found guilty of first-degree murder in killing of white deputy sheriff. Smith v. State, 218 Ark. 725, 238 S.W.2d 649 (1951).

Defendant charged with involuntary manslaughter was not deprived of a fair trial because he was required to select a jury from a jury panel, which had just heard a case of assault in which the defendant had testified and in which defendant's character had been attacked viciously, where members of jury panel testified they were without prejudice against defendant in manslaughter case. Montaque v. State, 219 Ark. 385, 242 S.W.2d 697 (1951).

A Negro defendant was not deprived of trial by an impartial jury where the regular jury panel of 27 included two Negroes and the alternate panel of 27 included seven Negroes, the panels being selected by three jury commissioners, one of whom was a Negro, with evidence that at least 14% of the members of petit juries for the past 28 terms had been Negroes in a county with a Negro electorate of 10%-11%. Maxwell v. Stephens, 229 F. Supp. 205 (E.D. Ark. 1964), aff'd, 348 F.2d 325 (8th Cir. 1965).

—Peremptory Challenges.

Where the record reflected that, after defendant had used four of his seven challenges, the panel was exhausted and additional jurors were summoned and thereafter the record was silent as to whether further peremptory challenges were exercised, it cannot be contended that the defendant was forced to go to trial with a jury composed of some individuals who were biased. Strode v. State, 257 Ark. 480, 517 S.W.2d 954 (1975).

When a defendant has used all his peremptory challenges before a prospective juror is called, he may only challenge that juror for cause and not peremptorily, and it is reversible error to thereafter hold a biased juror competent. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).

In a capital murder case, where the state struck two black venirepersons without questioning them because they had previously been on a hung jury or had been on a jury where a defendant was acquitted, those strikes were found to be racially neutral and survived defendant's Batson challenge. Stokes v. State, 359 Ark. 94, 194 S.W.3d 762 (2004).

Trial court did not abuse its discretion in upholding strikes of two African-American jurors as the explanations given by the state for the strikes appeared to be race-neutral reasons and, after the reasons were given, no additional evidence or argument was presented by defense counsel in support of his claim of purposeful discrimination. Stenhouse v. State, 362 Ark. 480, 209 S.W.3d 352 (2005).

Although defendant was entitled to eight peremptory challenges under § 16-33-305(b) and the trial court erred by not requiring the state to prove purposeful discrimination after defendant gave race-neutral reasons for the strikes, defendant's conviction was affirmed due to his failure to mount proper arguments on appeal. Childs v. State, 95 Ark. App. 343, 237 S.W.3d 116 (2006).

—Voir Dire.

Where three prospective jurors in a capital murder case admitted during voir dire that they had some prior knowledge of the case, but all three said they would disregard any information they had and give the defendant a fair trial, the trial judge did not abuse his discretion in allowing these jurors to serve. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057, 101 S. Ct. 630, 66 L. Ed. 2d 511 (1980).

While a venireman is generally impartial when he states that he can put aside any preconceived opinions and give the accused the benefit of all doubts that the law requires, it is not an automatic cure-all for opinions, relationships, or information that could disqualify one. Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983).

The voir dire examination of the jury must be held in open court; the right to an open trial may be asserted by the public, the press, and the accused. Taylor v. State, 284 Ark. 103, 679 S.W.2d 797 (1984).

When defendant entered into a plea agreement after a jury was selected but before the jury was sworn, it was not an abuse of discretion to decline to accept defendant's proffered additional voir dire questions to be asked of the sentencing jury because (1) the venire had been excused, (2) defendant had exhausted all peremptory challenges, (3) the court had already found the jury qualified, and (4) the court considered the proposed questions, as well as the State's response. Pedraza v. State, 2014 Ark. 298, 438 S.W.3d 226 (2014).

New Trial.

Where the defendant was convicted of possession of a controlled substance with intent to deliver and the simultaneous possession of drugs and a firearm and his conviction for the former offense was reversed on appeal, there was no violation of the defendant's rights under Ark. Const., Art. 2, § 10 when the trial court, on remand, refused to allow a new trial on the simultaneous possession charge where the defendant's conviction for simultaneous possession was not challenged on appeal. Colbert v. State, 346 Ark. 144, 55 S.W.3d 268 (2001).

Personal Presence.

Where the defendant is necessarily absent from the courtroom for a few minutes by permission of the court, the taking of testimony in his absence is prejudicial error. Bennett v. State, 62 Ark. 516, 36 S.W. 947 (1896).

A defendant is privileged to be present in person and by counsel whenever any substantive step is taken by the court in his case. Davidson v. State, 108 Ark. 191, 158 S.W. 1103 (1913).

Defendant cannot complain of absence at time his own motion for a new trial was presented; it appearing that no matter of fact was presented in the motion. Baldwin v. State, 119 Ark. 518, 178 S.W. 409 (1915).

Where a ruling made by trial court in the absence of the defendant could not result to his prejudice, the cause will not be reversed. Whittaker v. State, 173 Ark. 1172, 294 S.W. 397 (1927).

Where a court gave admonition as law requires while accused was confined in jail, there is no prejudice to the accused and there will be no reversal. Whittaker v. State, 173 Ark. 1172, 294 S.W. 397 (1927).

Defendant was not entitled to a new trial where the trial court formulated and delivered written answers to the jury's questions in his absence because there was no objection by defendant or his counsel, who was present in the judge's chambers and approved the judge's written answers to the jury; an objection must be made by counsel in order to preserve for appellate review the claim that defendant was absent during a critical stage of the proceedings. Clark v. State, 94 Ark. App. 5, 223 S.W.3d 66 (2006).

—Examining Evidence.

The defendant must be permitted to accompany the jury for a view of the locality of the crime. Benton v. State, 30 Ark. 328 (1875).

It was error for the jury to take the death weapon to jury room for examination out of the presence of the defendant. Forehand v. State, 51 Ark. 553, 11 S.W. 766 (1889).

—Felony Charge.

A defendant under indictment for a felony must be present whenever a substantive step is taken by the court. He need not actually be prejudiced by a proceeding in his absence, but only that he might have lost an advantage or been prejudiced. Bearden v. State, 44 Ark. 331 (1884).

—Misdemeanor Charge.

The court may, within its discretion, refuse to try a misdemeanor in the absence of the defendant. Bridges v. State, 38 Ark. 510 (1882).

—Summoning Jurors.

The court may order the sheriff to summon tales jurors to attend on the day set for trial, and it is not a step entitling the defendant to demand that he be present when the step is taken. Mabry v. State, 50 Ark. 492, 8 S.W. 823 (1888).

—Venue Change.

The making of an order for a change of venue in the absence of the defendant in a criminal case, upon his own petition, is not grounds for reversal of a conviction. Polk v. State, 45 Ark. 165 (1885).

—Verdict Announcement.

In a prosecution for a felony, if the record did not show defendant's presence when the verdict was delivered, a new trial would be granted. Cole v. State, 10 Ark. 318 (1850) (decision under prior Constitution).

—Waiver.

The state cannot demand a trial in the absence of the defendant. If the defendant waives, a trial of a misdemeanor may be made in his absence. Owen v. State, 38 Ark. 512 (1882).

If court permits trial of defendant, with his consent, in his absence, and there is a verdict of imprisonment, the defendant can not complain of the verdict. Martin v. State, 40 Ark. 364 (1883).

The constitutional guaranty that the defendant shall have the right to be confronted with the witnesses against him does not include the right to abscond and then complain of his own absence. Gore v. State, 52 Ark. 285, 12 S.W. 564 (1889); Lee v. State, 56 Ark. 4, 19 S.W. 16 (1892).

A defendant may, through his attorney waive the returning of the verdict in his presence; in the absence of a showing to the contrary, the authority of the attorney will be presumed. Davidson v. State, 108 Ark. 191, 158 S.W. 1103 (1913).

Despite the constitutional right to be present at one's criminal prosecution, that right may, under certain circumstances be waived by a defendant's belligerent or disruptive behavior; defendant was properly prevented from being present at his trial where he repeatedly used grossly inappropriate language and profanity toward the trial judge during the pretrial hearing, and where the judge gave the defendant a chance to display proper courtroom decorum before the trial began. Goston v. State, 55 Ark. App. 17, 930 S.W.2d 387 (1996).

Even though a trial court's knowledge of a defendant's past behavior is a relevant consideration when determining whether a defendant has forfeited his right to be present in the courtroom during his trial, where the trial court did not give the defendant, who had a history of repeated disruptances, any opportunity to reclaim his right to confrontation after repeated reassurances that he could maintain appropriate behavior and where the court did not inform the defendant that he had permanently forfeited his right of confrontation but instead removed him for the entire length of the trial, the trial court abused its discretion. Goston v. State, 327 Ark. 486, 939 S.W.2d 818 (1997).

Privileged Matters.

Where prosecutor issued a subpoena to an accident reconstructionist hired by attorney who represented a driver involved in a car accident, the court ruled that the accident reconstruction report and testimony of the accident reconstructionist's employee were confidential and privileged communications that could not be subpoenaed. Holt v. McCastlain, 357 Ark. 455, 182 S.W.3d 112 (2004).

Public Trial.

Where the court's action in clearing the court room does not appear essential to the maintenance of decorum, proceeding with the trial over defendant's objection violated defendant's right to a public trial guaranteed by this section. Sirratt v. State, 240 Ark. 47, 398 S.W.2d 63 (1966).

Court proceedings must not only be fair and impartial, they must also appear to be fair and impartial not only for the benefit of the litigants directly involved, but this is necessary in order to maintain the public's confidence in the judiciary. Oliver v. State, 268 Ark. 579, 594 S.W.2d 261 (Ct. App. 1980).

United States Const. Amend. 6 and this section guarantee an accused a speedy and public trial and to be confronted with the witnesses against him, but neither contains anything that might be seen as a right to limit those who may want to attend the trial; therefore, former Evid. Rule 616 was not unconstitutional. Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986).

Jury selection is a stage of the proceedings where openness is particularly appropriate under the guarantee of a public trial provided for in U.S. Const. Amend. 6, this section, and § 16-10-105. Memphis Publishing Co. v. Burnett, 316 Ark. 176, 871 S.W.2d 359 (1994).

Defendant was deprived of his constitutional right to a public trial where the courtroom was closed to the public, including members of defendant's family, for over two and a half hours during the jury voir dire process. Schnarr v. State, 2017 Ark. 10 (2017).

Defendant convicted of rape and given a life sentence failed to object at trial to the closing of the courtroom during voir dire and thus waived the issue for appeal purposes. A contemporaneous objection is required to preserve an issue for appeal, even for constitutional issues. Friday v. State, 2018 Ark. 339, 561 S.W.3d 318 (2018).

Defendant's Sixth Amendment and Ark. Const., Art. 2, § 10, right to a public trial was violated when the trial court closed the courtroom during the testimony of a State's witness in a murder trial; no record was developed before the trial court to demonstrate that the witness was actually intimidated or threatened, or by whom, there was no evidence presented on which the trial court could have determined that there was an overriding interest likely to be prejudiced, how broad any closure might have needed to be, or what reasonable alternatives to closure might have existed, and the trial court did not make findings necessary to support the closure. Mitchell v. State, 2019 Ark. 67, 567 S.W.3d 838 (2019).

Showing of prejudice is not necessary when a defendant's right to a public trial has been violated. Mitchell v. State, 2019 Ark. 67, 567 S.W.3d 838 (2019).

Right to Counsel.

Defendant is not entitled to be heard at all times by all counsel he sees fit to employ. Adams v. State, 176 Ark. 916, 5 S.W.2d 946 (1928).

While a trial judge is not a mere umpire and may interrogate witnesses in an action before him, he may not act in a dual capacity as judge and advocate; the presentation of a litigant's case in an adversary proceeding should be left to the initiative of counsel who has the responsibility to represent the interest of his client. Oliver v. State, 268 Ark. 579, 594 S.W.2d 261 (Ct. App. 1980).

Prior convictions may not be considered for purposes of the sentencing enhancement for subsequent convictions for driving while intoxicated unless the records shows the accused had counsel in the trials leading to the prior convictions or that the right to counsel was waived. Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985).

This section specifically provides that an accused in a criminal prosecution shall enjoy the right to be heard by himself and his counsel and no sentence involving loss of liberty can be imposed where there has been a denial of counsel; furthermore, an accused is entitled to relief from a conviction whenever the proceedings indicate the unfairness of trial without the help of a lawyer. Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986), overruled, Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996).

Where the trial court (i) removed defendant's public defender one month prior to trial, (ii) failed to sufficiently query defendant regarding his ability to pay for counsel, (iii) denied his motion for a continuance for the purpose of securing counsel, and (iv) required that defendant proceed at trial without counsel over his objection to proceeding pro se, the defendant was not improperly denied court appointed counsel but was improperly denied the benefit of any counsel. Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998).

None of defendant's statements unambiguously and unequivocally indicated defendant's right to remain silent or a right to counsel; defendant was conscious of his Miranda rights and he continued to talk to the officer and answer his questions even though he knew it was against his best interest, and there was no error in allowing the indicated portions of the custodial statement. Sykes v. State, 2009 Ark. 522, 357 S.W.3d 882 (2009).

Trial court properly denied defendant's request for a continuance to hire new counsel where defendant did not proffer any testimony from which the appellate court could evaluate the relevance, let alone the prejudicial effect, of its denial of the continuance to allow him the opportunity to obtain his own expert testimony; defendant did not demonstrate that the expert testimony he wanted would have resulted in a different conclusion by the jury. Price v. State, 2009 Ark. App. 664, 344 S.W.3d 678 (2009).

In a civil guardianship and conservatorship action, the trial court did not abuse its discretion or violate a ward's right to counsel of the ward's own choosing by appointing an attorney ad litem, who was wholly independent of those competing for the ward's care and custody, where the ward's original attorney also represented a brother, who was seeking appointment as the ward's guardian. Kuelbs v. Hill, 2010 Ark. App. 427, 379 S.W.3d 47 (2010).

Trial court did not abuse its discretion in denying defendant's motion for a continuance for the purpose of having a different public defender appointed to represent him; the request to change counsel was made just before his revocation hearing was set to begin, he offered no compelling reasons for wanting the change of counsel, and he did not identify any substitute counsel. In essence, defendant was simply dissatisfied with counsel's efforts at negotiating with the State; he did not allege that counsel was incompetent. King v. State, 2019 Ark. App. 531, 589 S.W.3d 420 (2019).

—Construction.

The use of the conjunction “and” between “himself” and “counsel” should not be interpreted as entitling a defendant to represent himself in part of the proceedings while accepting counsel's representation in other parts; the decision of whether a defendant may make a portion of the closing arguments is best left to the sound discretion of the trial court in order that it may maintain order, prevent unnecessary consumption of time or other undue delay, and preserve dignity and decorum. Sterling v. State, 315 Ark. 598, 868 S.W.2d 490 (1994).

When a defendant invokes his Sixth Amendment right to counsel for a judicial proceeding unrelated to the present charge, but does not make any indication that he only wishes to deal with the police through counsel, he does not invoke his Fifth Amendment right to counsel; the Sixth Amendment right to counsel is case specific. Olive v. State, 340 Ark. 343, 10 S.W.3d 443 (2000).

An accused's right to counsel after a prosecution has commenced is case specific and cannot be invoked once for all future prosecutions; therefore, defendant's invocation of his right to counsel in the robbery case did not constitute an invocation of the right to counsel during his subsequent custodial interrogation regarding the murder. Olive v. State, 340 Ark. 343, 10 S.W.3d 443 (2000).

—Admission of Confession.

Where a defendant's confession was inadmissible because of failure of the prosecution to show he had been advised of his right to counsel, it was error to admit in trial de novo in circuit court evidence that he had admitted making the confession in the previous trial in municipal court. Anderson v. City of El Dorado, 243 Ark. 137, 418 S.W.2d 801 (1967).

Where an officer was called to a disturbance at defendant' home, the officer's general question to defendant who had been hiding in the woods of “What's up?” was a general term of salutation and was not designed to elicit an incriminating response; thus, defendant's incriminating statements regarding incest, made in reply to the responding officer's salutation, were admissible. Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003).

—Appeal.

The fact that defendant's attorney elected to abandon the appeal was not in itself cause to relieve him of his responsibility to provide defendant with effective assistance of counsel in an appeal where his attorney was the attorney most familiar with the case and in the best position to prepare the defendant's brief, and should be required to do so. Norman v. State, 323 Ark. 444, 916 S.W.2d 724 (1996).

Defendant failed to cite any authority for his argument that, even if the appellate court found no Sixth Amendment violation for denial of counsel on appeal, there was still an Arkansas constitutional violation; although defendant pointed out that the Arkansas Constitution had different language than the Sixth Amendment, he failed to explain how this difference in language afforded him more protection. McClina v. State, 354 Ark. 384, 123 S.W.3d 883 (2003).

—Attorney's Fees.

Payment of fees to attorneys representing indigents is a responsibility of the state which the legislature had delegated to the counties by statute; but where the delegating statute, § 16-92-108 [repealed], was declared invalid, the state was responsible for payment of attorney's fees and expenses. State v. Post, 311 Ark. 510, 845 S.W.2d 487 (1993).

—Choice.

The rights of an accused to the assistance of counsel and to be heard by himself and his counsel do not confer an absolute choice of counsel, regardless of the circumstances. Mann v. Britt, 266 Ark. 100, 583 S.W.2d 21 (1979).

Where a trial court terminates the representation of an attorney, either private or appointed, over the defendant's objection and under circumstances which do not justify the lawyer's removal and which are not necessary for the efficient administration of justice, a violation of the accused's right to particular counsel occurs. Clements v. State, 306 Ark. 596, 817 S.W.2d 194 (1991).

It is not inconsistent with a defendant's right to counsel to limit such appointments to licensed attorneys. Jones v. State, 314 Ark. 383, 862 S.W.2d 273 (1993), cert. denied, 512 U.S. 1237, 114 S. Ct. 2743, 129 L. Ed. 2d 863 (1994).

—Critical Stage.

Pretrial-release order did not constitute a critical stage of the criminal proceedings entitling defendant to counsel. Reese v. State, 2018 Ark. App. 336, 552 S.W.3d 47 (2018).

—Effectiveness of Counsel.

After defendant's probation was revoked, trial counsel was not ineffective for failing to object to the trial court's determination that defendant had to serve 70 percent of his sentence before parole eligibility because under former § 16-93-611(a)(1) (see now § 16-93-618) a person convicted of possessing drug paraphernalia with the intent to manufacture methamphetamine and sentenced to imprisonment could not be eligible for parole until serving 70 percent of any sentence received. Cox v. State, 365 Ark. 358, 229 S.W.3d 883 (2006).

Order granting an inmate's petition for postconviction relief in accordance with Ark. R. Crim. P. 37 based on ineffective assistance of counsel was reversed because circuit court failed to inquire if the disclosure of a calendar ahead of trial would have changed the evidence before the jury in such a manner as to create a reasonable probability of an acquittal. State v. Brown, 2009 Ark. 202, 307 S.W.3d 587 (2009).

Denial of defendant's motion for a new trial after he had been convicted of rape was appropriate because statements commenting on the lack of evidence were clearly directed towards rebutting the defensive strategy and did not constitute impermissible references to defendant's failure to testify. Because the remarks were not improper, counsel was not ineffective for failing to preserve an argument that those remarks were improper. Rounsaville v. State, 2011 Ark. 236 (2011).

While counsel's persuasive techniques did not rise to the level of coercion, defendant's Ark. R. Crim. P. 37.1 petition raised issues that challenged whether counsel's strategic decision to recommend a plea offer was based upon reasonable professional judgment. Riley v. State, 2011 Ark. 394 (2011).

Inmate was not entitled to habeas corpus relief based on an allegation of ineffectiveness of counsel because that was not a cognizable issue; rather, the claim should have been raised in a timely petition under Ark. R. Crim. P. 37.1. A petition for a writ of habeas corpus was not a substitute for proceeding under Rule 37.1. Ashby v. State, 2012 Ark. 48 (2012).

—Forfeiture.

Circuit court did not violate the right to counsel of a defendant convicted of rape and incest because defendant was not indigent and not entitled to appointed counsel; and, although he did not waive his right to counsel, he forfeited his right to counsel as defendant was free on bond during the relevant time period; he had won the lottery, taking home $680,000 during the pendency of the case; he established on the record that he did not want to hire a lawyer because he could not justify spending the money; and the circuit court did not abuse its discretion in determining that defendant preferred not to hire a lawyer. Patton v. State, 2019 Ark. App. 63, 569 S.W.3d 906 (2019).

—Guilty Plea.

Acceptance of plea of guilty without giving or offering defendant benefit of counsel constitutes a denial of due process. Swagger v. State, 227 Ark. 45, 296 S.W.2d 204 (1956); Dement v. State, 236 Ark. 851, 370 S.W.2d 191 (1963); Meeks v. State, 239 Ark. 1066, 396 S.W.2d 306 (1965).

—Joint Representation.

Where defendant was denied postconviction relief after he was convicted as a principal and his co-defendant was convicted as an accomplice, defendant was not prejudiced by the joint representation because both were charged as principals and accomplices, and 3 of the 5 counts in the information pertained solely to defendant. Cook v. State, 361 Ark. 91, 204 S.W.3d 532 (2005).

—Oral Argument.

An accused has no constitutional right to have oral argument by counsel at the conclusion of an evidentiary hearing on a motion to suppress evidence. Brenneman v. State, 264 Ark. 460, 573 S.W.2d 47 (1978), cert. denied, 442 U.S. 931, 99 S. Ct. 2863, 61 L. Ed. 2d 299 (1979).

—Polygraph Test.

The district court's finding that there was no agreement between defendant's counsel and the prosecutor that polygraph test result would be admissible is not clearly erroneous; having failed to obtain an oral agreement from the prosecutor, defendant's counsel cannot be criticized for failing to reduce that agreement to writing, and without an agreement of any kind, the polygraph test results were clearly inadmissible. Houston v. Lockhart, 9 F.3d 62 (8th Cir. 1993).

—Postconviction Proceedings.

In criminal cases the accused has a constitutional right to counsel at trial; there is no corresponding right to counsel in a postconviction proceeding. Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986).

—Postconviction Relief Denied.

Trial court did not err in denying post-conviction relief where defendant failed to show that he was prejudiced when a pardoned sentence was introduced during the sentencing phase of his trial because, once the state offered the certified copy of the conviction, it had established a prima facie case and the burden shifted to defendant to establish the pardon; because no such evidence was introduced, the conviction was properly admitted. Cook v. State, 361 Ark. 91, 204 S.W.3d 532 (2005).

Trial court did not err in denying post-conviction relief where defendant claimed his counsel was ineffective for failing to impeach an informant regarding alleged inconsistent statements by using tape recorded conversations because there was no evidence that the jury would have resolved the credibility determination in defendant's favor such that it would have affected the outcome of his trial. Cook v. State, 361 Ark. 91, 204 S.W.3d 532 (2005).

Where defendant was convicted of engaging children in sexually explicit conduct for use in visual or print medium, counsel was not ineffective for failing to make an argument that defendant was not producing materials for “pecuniary profit” as that was no longer a required element of the charge against defendant. Smith v. State, 367 Ark. 611, 242 S.W.3d 253 (2006).

Denial of inmate's petition for postconviction relief was appropriate because she failed to prove that her counsel was ineffective since, to the extent that her argument concerned counsel's failure to call witnesses other than herself, the inmate failed to demonstrate that her defense was prejudiced. Additionally, prejudice could not be presumed regarding the inmate's sentence since she received a sentence that was less than the maximum allowed for that crime. McGahey v. State, 2009 Ark. 80 (2009).

Order denying an inmate's motion for postconviction relief under Ark. R. Crim. P. 37 was affirmed because defense counsel's decision not to call a certain shaky witness who had a criminal history went to counsel's trial strategy and was not an omission resulting in ineffective assistance of counsel. Gaye v. State, 2009 Ark. 201, 307 S.W.3d 1 (2009).

Based on evidence seized from appellant's car following a traffic stop, he was convicted of possession of cocaine, simultaneous possession of drugs and firearms, and possession of a firearm by a felon; counsel was not ineffective for failing to move to suppress the evidence on the basis that appellant had not been tried on charges of speeding and driving on a suspended license. Whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation which the officer believed to have occurred. White v. State, 2009 Ark. 225 (2009).

Denial of an inmate's petition for post-conviction was affirmed because the inmate did not show a conflict of interest that actually affected his attorneys' performance and he failed to show that any conflict between his attorneys and him had an actual, detrimental effect on their representation of him. Lee v. State, 2009 Ark. 255, 308 S.W.3d 596, cert. denied, 558 U.S. 1013, 130 S. Ct. 555, 175 L. Ed. 2d 386 (2009).

Defendant's petition for postconviction relief was properly denied under Ark. R. Crim. P. 37.1 where defendant could not prove that his counsel was ineffective in failing to investigate witnesses and the accomplice testimony was sufficiently corroborated; a copy of the record would not have been beneficial concerning the issues in question. Woody v. State, 2009 Ark. 413 (2009).

Counsel was not ineffective for failing to make an argument that was meritless; because defendant did not state a meritorious basis upon which counsel could have objected to the seating of the juror and the record clearly supported the juror's selection, defendant's claim as to ineffective assistance on that basis failed, and the supreme court would not label counsel ineffective merely because of possible bad tactics or strategy in selecting a jury. Anderson v. State, 2009 Ark. 493 (2009).

When a jury found appellant guilty of manufacturing methamphetamine, possessing drug paraphernalia with intent to manufacture methamphetamine, and fleeing. he was not entitled to postconviction relief under Ark. R. Crim. P. 37.1 based on his ineffective assistance of counsel claim. The Supreme Court of Arkansas held that counsel was not ineffective for failing to introduce a letter to show that appellant's girlfriend was a “meth cook”; counsel did not commit fraud in hiring an investigator; counsel's failure to call the investigator to testify was a matter of trial tactics; and appellant was not prejudiced by counsel's failure to call additional witnesses. Britt v. State, 2009 Ark. 569, 349 S.W.3d 290 (2009).

When someone driving appellant's car fled from an officer and ran into the woods, items used to manufacture methamphetamine were found in the car and appellant's girlfriend testified that he was driving; a jury found appellant guilty of manufacturing methamphetamine, possessing drug paraphernalia with intent to manufacture methamphetamine, and fleeing. He was not entitled to postconviction relief under Ark. R. Crim. P. 37.1 based on counsel's failure to object to evidence that appellant and his girlfriend had been convicted of other crimes related to methamphetamine; the evidence was admissible under Ark. R. Evid. 404(b), as it was independently relevant to the issue of the identity of the driver and his relationship to the passenger. Britt v. State, 2009 Ark. 569, 349 S.W.3d 290 (2009).

Trial counsel was not ineffective for failure to object to the charges pending against appellant for the manufacture of methamphetamine and possession of drug paraphernalia with intent to manufacture methamphetamine on the basis that the charges were a violation of the prohibition against double jeopardy. The Supreme Court of Arkansas has held that possession of drug paraphernalia with intent to manufacture methamphetamine is not a lesser-included offense of manufacture of methamphetamine; therefore, appellant was not entitled to postconviction relief. Britt v. State, 2009 Ark. 569, 349 S.W.3d 290 (2009).

Denial of the inmate's petition for postconviction relief was appropriate because, to have shown prejudice and proven that she was deprived of a fair trial due to ineffective assistance of counsel, the inmate, who had pled guilty, was required to demonstrate a reasonable probability that, but for counsel's errors, she would not have so pleaded and would have insisted on going to trial. It would have defied all logic for her to have asserted that she would not have entered a plea for the agreed-upon sentence if trial counsel had presented mitigating evidence, as any presentation of mitigating evidence would have occurred subsequent to the inmate entering the guilty plea, which she admitted was entered knowingly and intelligently. Jamett v. State, 2010 Ark. 28, 358 S.W.3d 874 (2010).

Trial counsel was not ineffective in failing to preserve the issue of sufficiency of the evidence by moving for a directed verdict because counsel “gave up nothing” by failing to move for a directed verdict; the victim's testimony established the elements of the rape charge, and that testimony alone was sufficient to support the verdict. Bell v. State, 2010 Ark. 65, 360 S.W.3d 98 (2010).

Trial counsel was not ineffective for failing to investigate the case, secure DNA evidence testing, and obtain expert medical testimony because a postconviction relief appellant did not establish any facts to support a conclusion that there was any evidence that could have been subjected to scientific testing and that would have been admissible, and since the victim did not immediately report the incident, any samples that could be later obtained through a medical exam or further investigation would not have been relevant to the rape charge; the testimony at trial established that the victim did not tell her mother or anyone else about the rape until a number of weeks after the incident, that her mother had washed and then disposed of the bloody panties that the victim had worn, that the victim was given a medical examination after she reported the incident, and that no samples were taken from the mattress upon which the incident occurred. Bell v. State, 2010 Ark. 65, 360 S.W.3d 98 (2010).

Trial counsel was not ineffective for failing to invoke the rape shield statute, § 16-42-101, or for failing to argue that the victim had said someone else had raped her or investigate those statements because if counsel had exculpatory evidence to present, the only proper means to seek admission was through a request for a hearing, and even if counsel erred in failing to request such a hearing, the postconviction relief appellant did not establish that, had counsel requested a hearing, his arguments for admission of the evidence would have been effective; there was no basis to support a claim that the evidence was needed to rebut the inference that the child victim received her knowledge of sexual matters from alleged encounters with appellant, and appellant did not establish that there was potentially relevant evidence to be discovered, or that counsel could have sought to admit, that was suitably compelling so as to overcome its highly prejudicial nature through strong probative value, as § 16-42-101(c) required. Bell v. State, 2010 Ark. 65, 360 S.W.3d 98 (2010).

Trial counsel was not ineffective for discussing the case with the prosecution because appellant did not, in his petition for postconviction relief or during the hearing on the petition, point to any specific incidents in which counsel had inappropriate communication with the prosecution, that demonstrated how he was misled by counsel, or that would show counsel participated in a conspiracy to convict appellant Bell v. State, 2010 Ark. 65, 360 S.W.3d 98 (2010).

Trial court did not err in denying appellant's petition under Ark. R. Crim. P. 37.1 because appellant failed to set forth facts sufficient to sustain a finding that any alleged ineffective assistance of trial counsel resulted in prejudice since appellant could not show prejudice from any alleged error by trial counsel concerning a failure to impeach or discredit a statement of the victim's daughter; the admission of the statement was not prejudicial, and a failure to impeach the statement was not prejudicial because the evidence at trial, aside from the daughter's statement, was overwhelming. Rodriguez v. State, 2010 Ark. 78 (2010).

Dismissal of inmate's appeal from the denial of his petition for postconviction relief was proper because he failed to prove that he received ineffective assistance of counsel; counsel testified, and the record confirmed, that he did question a police officer concerning a relationship with a witness and the inmate did not introduce any evidence or information of such a relationship that counsel might have found from further investigation or that counsel could have used to impeach the officer's testimony. Further, challenges to a witness's credibility were not cognizable claims in proceedings under Ark. R. Crim. P. 37.1 and allegations that trial counsel did not communicate with the inmate or investigate the case and was unprepared for trial were likewise deficient in factual substantiation. Dunlap v. State, 2010 Ark. 111 (2010).

Trial court did not err in denying a prisoner's petition for postconviction relief because the prisoner did not set forth facts sufficient to state a cognizable claim; the prisoner's claims of ineffective assistance of counsel concerning procedural defects in the plea proceedings, failure to comply with Ark. R. Crim. P. 24, and trial counsel's failure to seek suppression of evidence or raise a defense were conclusory, and his other allegations of error, those concerning the negotiation procedures, counsel's inaction in raising issues in the negotiations, and counsel's failure to request jury sentencing, would not have had any impact on appellant's ultimate decision to accept the plea offer that he received. Shaw v. State, 2010 Ark. 112 (2010).

Because defendant failed to preserve two of defendant's claims regarding counsel's alleged ineffectiveness, because counsel's decision to inform the jury about defendant's pending drug charges was one of trial strategy, and because defendant instructed counsel not to introduce any evidence in mitigation at sentencing, defendant failed to show that counsel was ineffective; therefore, defendant's petition for postconviction relief under Ark. R. App. P. Crim. 37.1 was properly denied. Sykes v. State, 2011 Ark. 412 (2011).

Denial of the inmate's petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1 was proper because he failed to prove that he received ineffective assistance of counsel. A juror stated that she had not formed an opinion about the inmate's guilt or innocence, and affirmed that she would base her decision on the evidence; further, trial counsel was not ineffective with regard to an argument for vindictive sentencing because two different judges presided over the inmate's trials, different sentencers imposed the two sentences, and thus, the presumption of vindictiveness did not arise. Butler v. State, 2011 Ark. 435, 384 S.W.3d 526 (2011).

Appellant's trial counsel was not ineffective for failing to object to a wording error contained in a verdict form because the correct statutory language was consistently used throughout the other pleadings, instructions, and verdict forms; thus, any error on the part of counsel was harmless, and appellant failed to prove prejudice. Richardson v. State, 2011 Ark. 478 (2011).

Appellant's trial counsel was not ineffective for failing to object to the trial court's failure to arraign appellant on the enhanced charge of possessing cocaine within 1,000 feet of a public-housing development because appellant was not prejudiced by the lack of a formal arraignment on the enhancement; appellant received the same rights at trial as he would have had he been arraigned, and because appellant was tried on the charge, he waived formal arraignment by appearing and announcing that he was ready for trial. Richardson v. State, 2011 Ark. 478 (2011).

Denial of inmate's petition for postconviction relief from two judgments entered in 2009 on a number of drug-related charges was proper because he was not credible in his testimony to establish that he would not have entered guilty pleas if counsel had not pressured him by requesting more money for trial. He failed to meet his burden of showing prejudice from any deficient performance on the part of trial counsel. Heard v. State, 2012 Ark. 67 (2012).

Denial of inmate's petition for writ of certiorari was proper because he failed to prove that he received ineffective assistance of counsel. In part, a search incident to arrest was permissible under Ark. R. Crim. P. 12.4, and the inmate did not set forth any legal theory upon which to challenge either the arrest or the search. Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6 (2012).

Denial of inmate's petition for writ of certiorari was proper because he failed to prove that he received ineffective assistance of counsel. In part, the additional evidence at issue would not have been sufficient to raise a reasonable probability that the factfinder's decision would have been different if the jury had heard the inmate's testimony. Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6 (2012).

Denial of inmate's petition for writ of certiorari was proper because the evidence at issue presented a jury question concerning whether the informant had induced the commission of the offense, and the jury was given an instruction on the affirmative defense of entrapment. Thus, the inmate failed to prove that he received ineffective assistance of counsel. Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6 (2012).

Denial of postconviction relief was proper, because the petitioner failed to meet his burden of demonstrating that his trial counsel's performance was deficient and that he was prejudiced by this deficient performance to the extent that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462 (2013).

—Postconviction Relief Granted.

Circuit court clearly erred in denying defendant's motion for postconviction relief, because the petition provided specific facts to establish actual prejudice due to counsel's conduct at trial and the allegations were not conclusory, when counsel's performance was deficient by failing to suppress defendant's custodial statement as a violation of the Sixth Amendment right to counsel, and the deficient performance prejudiced the defense since the inclusion of defendant's statement as the state's evidence at trial and used in affirming the conviction was sufficient to find that there was a reasonable probability that the decision reached would have been different absent counsel's failure to suppress the statement; the conviction resulted from a breakdown in the adversarial process that rendered the result unreliable. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008).

—Presence of Counsel.

A verdict may be read in the absence of defendant's counsel, in the absence of a request that such counsel should be present. Baker v. State, 58 Ark. 513, 25 S.W. 603 (1894).

Counsel should have been present in a case where, during trial, defendant made a confession. Garner v. State, 97 Ark. 63, 132 S.W. 1010 (1910).

—Prior Convictions.

In a driving while intoxicated (DWI) seventh offense case, although many procedural errors occurred in three of defendant's prior DWI cases, the trial court did not err in denying defendant's motion to strike the prior convictions as none of the errors rose to the level of a jurisdictional defect resulting from the failure to appoint counsel; defendant was represented by counsel in two of the prior cases and signed a waiver-of-counsel form in the third case. Camp v. State, 364 Ark. 459, 221 S.W.3d 365 (2006).

—Self-Representation.

Defendant has a right to conduct his own defense in a criminal case, but this does not absolve him from observing rules of procedure; he should make objection to a ruling of the court below in order to be able to raise the question on appeal. Wimberly v. State, 214 Ark. 930, 218 S.W.2d 730 (1949).

In a homicide prosecution where the defendant was represented by counsel and did not choose to testify, there was no error when the trial court refused to permit the defendant to make the final portion of the argument to the jury personally, after his counsel had made the initial portion of his closing argument. Mosby v. State, 249 Ark. 17, 457 S.W.2d 836 (1970).

Where defendant, on the morning of the trial, asked the court if he could represent himself, but coupled that request with a motion for a continuance in order to prepare his case and subpoena witnesses not present for trial, which the court denied, defendant, by not being prepared to proceed, waived his right to conduct his own defense, unless the court erred in denying his request for a continuance. Nelson v. State, 43 Ark. App. 68, 859 S.W.2d 658 (1993).

Where defendant elected to represent himself, the trial court was free to appoint standby counsel instead of granting access to a law library. Rowbottom v. State, 327 Ark. 76, 938 S.W.2d 224 (1997).

Defendant's convictions for aggravated robbery, first-degree terroristic threatening, theft of property, and third-degree battery were proper because he was made aware of the dangers and disadvantages of self-representation and chose to represent himself with eyes wide open. In part, defendant was advised that he would be held to the same restrictions and obligations as a lawyer and that he would be subject to the rules of evidence; he was also informed of the seriousness of the charges and possibility of a life sentence. Williams v. State, 2009 Ark. App. 684, 372 S.W.3d 358 (2009).

Circuit court did not commit reversible error in denying a self-representation motion despite the court's troubling remarks; although defendant requested to proceed pro se, he subsequently sought the appointment of other counsel, the court granted that request, following the removal defendant eschewed the earlier request to proceed pro se, and thus, he had not unequivocally invoked the right to represent himself. Dennis v. State, 2016 Ark. 395, 503 S.W.3d 761 (2016).

Trial court did not err in refusing to allow defendant to represent himself pro se; where defendant sought to have another attorney represent him, a request to proceed pro se was not unequivocal, and his statements about representing himself were couched more in terms of preferring to do so rather than having the current attorney represent him. Whitlow v. State, 2016 Ark. App. 510, 506 S.W.3d 272 (2016).

Trial court did not err in permitting defendant to proceed pro se in defendant's criminal trial for possession of a controlled substance, possession of drug paraphernalia, and failure to appear because defendant knowingly and intelligently waived his right to counsel. Furthermore, defendant's request was unequivocal and timely asserted, defendant's waiver was made knowingly and intelligently, defendant did not engage in conduct that prevented the fair and orderly exposition of the issues, and standby counsel's assistance was not substantial. Ivory v. State, 2017 Ark. App. 269, 520 S.W.3d 729 (2017).

Circuit court did not err in denying defendant's request to represent himself at trial because the request was not unequivocal, and the trial court could have concluded that defendant had engaged in conduct that would prevent the fair and orderly exposition of the issues. Finch v. State, 2018 Ark. 111, 542 S.W.3d 143 (2018).

—Suppression Denied.

Trial court did not err by refusing to suppress defendant's statement to jailer as defendant clearly initiated communication with the police and waived her right to counsel. Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006).

—Waiver.

The right to counsel is a personal right which the accused may knowingly and intelligently waive either at the pretrial stage or at trial. Ridgeway v. State, 239 Ark. 377, 389 S.W.2d 617, cert. denied, 382 U.S. 902, 86 S. Ct. 236, 15 L. Ed. 2d 156 (1965); Slaughter v. State, 240 Ark. 471, 400 S.W.2d 267 (1966); Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975); Leak v. Graves, 261 Ark. 619, 550 S.W.2d 179 (1977), overruled, Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996).

Where, in a prosecution for capital murder, the defendant voluntarily gave a confession after being advised of his rights and given an opportunity to engage an attorney, he knowingly and intelligently waived his right to counsel. Rodgers v. State, 261 Ark. 293, 547 S.W.2d 419 (1977).

Where a defendant was repeatedly advised of his rights during the course of interrogation but did not attempt to obtain counsel and recalled a prosecuting attorney who offered to obtain counsel for him, the defendant waived his right to counsel. Loomis v. State, 261 Ark. 803, 551 S.W.2d 546 (1977).

The State may not force a defendant to accept counsel against his will or deny his request to conduct his own defense. Where the accused knowingly and intelligently declines the assistance of counsel and asserts his constitutional right to represent himself, the court should not interfere with the free exercise of that constitutional right. Barnes v. State, 15 Ark. App. 153, 691 S.W.2d 178 (1985).

The right to counsel is a personal right and the accused may knowingly and intelligently waive counsel either at a pretrial stage or at the trial; however, every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986), overruled, Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996).

To establish a voluntary and intelligent waiver of the right to counsel, the trial judge must explain to the accused that he is entitled as a matter of law to an attorney and question him to see if he can afford to hire counsel; the judge must also explain the desirability of having the assistance of an attorney during the trial and the problems attendant to one representing himself. Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986), overruled, Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996).

Where the attorney testified he did not remember whether he told the defendant he could keep him as his attorney, and the record did not reveal that the trial judge ever so informed the defendant, the defendant's act in releasing the attorney could not be viewed as a waiver of a right to counsel. Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986), overruled, Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996).

A defendant who invokes his right to counsel before trial by retaining an attorney or accepting appointment of counsel may be found to have waived his right to self-representation at trial and also in pretrial proceedings. Monts v. Lessenberry, 305 Ark. 202, 806 S.W.2d 379 (1991).

Where defendant never had counsel, there was no evidence that the trial court made defendant aware of the dangers and disadvantages of self-representation, and there was no one sitting by to assist defendant if necessary, defendant did not forfeit her right to counsel. Pendleton v. State, 49 Ark. App. 67, 896 S.W.2d 600 (1995).

Trial court did not err in denying defendant's motion to supress certain statements she made during questioning regarding her missing child; although defendant claimed that she had done the best she could to convey to the officer that she was concerned about continuing to talk to him without a lawyer present, when the officer asked defendant whether she was asking for a lawyer, she did not answer that question but, rather, continued answering other questions and did not mention a lawyer again during the interview. Gilbert v. State, 88 Ark. App. 296, 198 S.W.3d 561 (2004).

Defendant's convictions for felony theft of property and breaking and entering were improper where the trial court erred in forcing defendant to be represented by counsel and in refusing to allow him to appear pro se; while the trial court might have had good intentions to protect him from his ignorance, it failed to apprise him of the dangers of self-representation, and the failure to do so constituted reversible error. Pierce v. State, 362 Ark. 491, 209 S.W.3d 364 (2005).

Defendant's right to counsel under Ark. Const. art. 2, § 10 and the Sixth Amendment was violated because he did not make a knowing and intelligent waiver of counsel where trial court failed to make an inquiry as to his understanding of the legal process and did not specifically warn him of the substantive risks of proceeding without counsel; also, defendant did not get substantial assistance from his standby counsel. Parker v. State, 93 Ark. App. 472, 220 S.W.3d 238 (2005).

Court erred in finding defendant waived the right to counsel; the waiver was equivocal because he stated he would only represent himself if he could not have another attorney, and it was not knowing and intelligent because the court made only minimal inquiries of his education but did not discuss the risks of proceeding without counsel. Robinson v. State, 2010 Ark. App. 430, 376 S.W.3d 484 (2010).

In a first-degree murder case, the trial court did not err in finding that appellant had effectively waived his right to counsel where the record was replete with colloquies between the court and appellant as it pertained to his desire to proceed pro se, appellant had access to competent counsel, and he was obviously attempting to prevent the scheduled trial and thwart the court system; under these circumstances, the trial court was correct in refusing to replace that counsel. Robinson v. State, 2017 Ark. App. 377, 526 S.W.3d 20 (2017).

Trial court did not err by finding that defendant made an unequivocal and knowing and intelligent waiver of his right to counsel and could proceed pro se because he was appointed at least three different attorneys and each time stated he did not want the appointed counsel to represent him and would prefer to represent himself, he was given several continuances to find an attorney willing to accept his case but he was unable to do so, and the trial court warned him of the dangers associated with self-representation at several hearings and notified him of his right to counsel. Dunn v. State, 2019 Ark. App. 398, 585 S.W.3d 681 (2019).

Trial court did not err in finding defendant competent to proceed pro se; although he was initially found unfit to proceed, he had at least three subsequent findings of competency by three different doctors. Dunn v. State, 2019 Ark. App. 398, 585 S.W.3d 681 (2019).

Circuit court did not err in denying defendant's right to waive counsel where his statements, taken in their entirety, represented his frustration with his counsel, not an unequivocal request to waive his right to counsel. Gardner v. State, 2020 Ark. 147, 598 S.W.3d 10 (2020).

—Withdrawal.

When an accused appears with retained counsel, the trial judge should not allow the attorney of record to withdraw until: (1) new counsel has been retained; or (2) a showing of indigency has been made and counsel has been appointed; or (3) a voluntary and intelligent waiver of the right to counsel is established on the record. Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986), overruled, Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996).

While defendant's motion to relieve his attorney of record did set forth certain differences between himself and his counsel regarding the fee arrangement, it did not expressly state that his attorney's representation was compromised by a conflict of interest; in denying the motions, the circuit court considered the length of time the matter had been pending and the proximity of the trial date, and the appellate court would not rank speculation about whether counsel was hampered or impaired in any respect by a purported conflict of interest. Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003).

Right to Testify.

Trial court did not abuse its discretion and defendant's constitutional right to testify was not violated where he clearly and on the record stated his intention not to testify in response to a direct question put to him by the trial court at the close of the evidence; defendant requested that he be able to testify only after counsel had conferred in chambers to prepare jury instructions. Henson v. State, 94 Ark. App. 163, 227 S.W.3d 450 (2006).

Because defendant supported a claim of ineffective assistance of counsel for failure to allow defendant to testify with specific testimony that defendant would have given had defendant taken the stand, the trial court erred in denying defendant's Ark. R. Crim. P. 37.1 petition for postconviction relief without a hearing. Cowan v. State, 2011 Ark. 537 (2011).

Right to Trial by Jury.

The trial court was without authority to impose additional sentence authorized by statute on conviction of felony while armed with a firearm where the jury had made no specific finding as to that effect, and the imposition of the additional sentence deprived the defendant of his right to a trial by jury. Johnson v. State, 249 Ark. 208, 458 S.W.2d 409 (1970).

The presence of a thirteenth person serving as an interpreter for a deaf juror during jury deliberations would violate the secrecy of the jury room and thereby deprive an accused person of his right to trial by jury. Eckstein v. Kirby, 452 F. Supp. 1235 (E.D. Ark. 1978).

Procedural rules governing jury trials are not intended to diminish the right to a jury trial; these rules should be interpreted so as not to give effect to dubious waivers of rights and to hold otherwise would be to hold that a rule of appellate procedure supersedes an express provision of the constitution. Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992).

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), does not compel the reversal of Ferguson v. State, 362 Ark. 547, 210 S.W.3d 53 (2003), because whether a prior felony was violent in nature is a matter of law for the trial court; moreover, the jury did not have to determine the fact of a prior conviction. Austin v. State, 98 Ark. App. 380, 255 S.W.3d 888 (2007).

Trial court's standard practice of requiring a defendant to request a jury at least 48 hours before trial was not in accordance with the Arkansas Constitution or the Arkansas Rules of Criminal Procedure; the notice requirement put a defendant in the position of forfeiting his or her right to a jury trial due to inaction. Swindle v. State, 373 Ark. 519, 285 S.W.3d 200 (2008), cert. denied, 556 U.S. 1127, 129 S. Ct. 1616, 173 L. Ed. 2d 994 (2009).

—Fair Cross-Section of Community.

A twelve-member jury is meant to include twelve members who represent a fair cross-section of the community. Reams v. State, 2018 Ark. 324, 560 S.W.3d 441 (2018).

A fair-cross-section-of-the-jury violation is structural and therefore cognizable in Rule 37 postconviction proceedings. Reams v. State, 2018 Ark. 324, 560 S.W.3d 441 (2018).

—Juvenile Court.

The accused in a criminal prosecution has a right to a trial by a jury, but a minor does not have such a right in juvenile court. Martin v. State, 213 Ark. 507, 211 S.W.2d 116 (1948).

—Punishment.

This section and Ark. Const., Art. 2, §§ 7 and 21 are not to be interpreted to prevent a court from fixing punishment in certain cases. Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988).

—Venire Panel.

The drawing of a venire panel entirely from the Osceola District of Mississippi County and the exclusion of the Chickasawba District of Mississippi County did not violate the defendant's asserted constitutional right to have a jury selected from the entire county since there was a legislative provision providing that the county was a multi-judicial-district county. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998).

Speedy Trial.

A prisoner, to be entitled to discharge on delay of the trial, must demand trial or resist postponement. Stewart v. State, 13 Ark. 720 (1853) (decision under prior Constitution); Dillard v. State, 65 Ark. 404, 46 S.W. 533 (1898); Fox v. State, 102 Ark. 393, 144 S.W. 516 (1912).

A statute attempting to suspend all law suits for the duration of the Civil War violated the constitutional provision for a speedy trial. Burt v. Williams, 24 Ark. 91 (1863) (decision under prior Constitution).

This section, providing for a speedy and public trial by an impartial jury and for a change of venue within the judicial district, adequately protects petitioner's constitutional rights to a fair and impartial trial. Rand v. Arkansas, 191 F. Supp. 20 (W.D. Ark. 1961).

The right to a speedy trial does not mean that all other business of the court must be shoved to the back in order to give an immediate trial. Moore v. State, 241 Ark. 335, 407 S.W.2d 744 (1966).

The 18-month period set for a speedy trial is reasonable and is consistent with constitutional standards. Jennings v. State, 276 Ark. 217, 633 S.W.2d 373, cert. denied, 459 U.S. 862, 103 S. Ct. 137, 74 L. Ed. 2d 117 (1982).

Defendant's speedy-trial argument was not preserved for review because defendant and his counsel were present and failed to make a contemporaneous objection at the numerous hearings in which time was excluded for speedy trial purposes due to defendant's incomplete mental evaluation. Deasis v. State, 360 Ark. 286, 200 S.W.3d 911 (2005).

Because defendant's trial did not occur until 639 days after defendant was arrested, defendant made a prima facie case that his right to a speedy trial was violated, but because only 146 days were chargeable to the state, the trial court did not err in denying defendant's motion to dismiss for lack of speedy trial; defendant's attorney filed a motion for continuance, stating that the speedy trial requirement was waived, and defendant was bound by the acts of his attorney. Block v. State, 2010 Ark. App. 603, 377 S.W.3d 476 (2010).

—Appeal from Motion to Dismiss.

There is no authority for an interlocutory appeal of the denial of a motion to dismiss for lack of a speedy trial. Gammel v. State, 318 Ark. 880, 890 S.W.2d 240 (1994).

—Condemned Prisoner.

The Bill of Rights does not guarantee to a condemned prisoner the right to be tried upon pending charges while he is an occupant of the death cell, awaiting electrocution. Leggett v. Kirby, 231 Ark. 576, 331 S.W.2d 267, cert. denied, 362 U.S. 981, 80 S. Ct. 1073, 4 L. Ed. 2d 1018 (1960).

—Delay.

The provision in the Bill of Rights relating to a speedy trial does not apply rigidly to every instance of delay in criminal cases. The Constitution prohibits vexatious, capricious and oppressive delays, manufactured by the ministers of justice. Leggett v. Kirby, 231 Ark. 576, 331 S.W.2d 267, cert. denied, 362 U.S. 981, 80 S. Ct. 1073, 4 L. Ed. 2d 1018 (1960).

Where codefendant had been in jail for five months before trial and the law enforcement officers possessed a record sheet showing that he had been a patient at a state hospital in Whitfield, Miss., no overwhelming necessity justified trial court in declaring a mistrial in order to commit the codefendant to state hospital for observation; therefore, appellants were entitled to dismissal of charges on ground of double jeopardy. Cody v. State, 237 Ark. 15, 371 S.W.2d 143 (1963).

Where, due to overcrowded docket, defendant remained in jail more than seven months without trial in a three division circuit court, the court refused to hold that the trial court abused its discretion in denying defendant's motion to dismiss but noted it was difficult to consider a trial after such delay a speedy trial as guaranteed by this section. Gardner v. State, 252 Ark. 828, 481 S.W.2d 342 (1972), overruled in part, Alexander v. State, 268 Ark. 384, 598 S.W.2d 395 (1980).

— —Defendant Causing.

Suspension of seduction prosecution because of the marriage of defendant to prosecuting witness is not violation of constitutional right to speedy trial where prosecution subsequently is reinstated. Burnett v. State, 76 Ark. 295, 88 S.W. 956 (1905).

A statutory exception makes the speedy trial proviso inapplicable if the accused applies for trial delay. Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969).

Statutes and rules applied to deny a motion to dismiss brought by a defendant who had resisted every attempt to bring him to trial were not unconstitutional under this section as denials of the right to speedy trial. Faulk v. State, 261 Ark. 543, 551 S.W.2d 194, appeal dismissed, 434 U.S. 804, 98 S. Ct. 33, 54 L. Ed. 2d 62 (1977).

Where a case was set for trial well within the time allowed, but was delayed to allow the defendant to obtain new counsel after his assault on his original counsel led them to withdraw, there was no denial of a speedy trial. Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978).

— —Federal Offenses.

Defendant's trial for four crimes allegedly committed while he was on furlough from a forty-year sentence in the Arkansas Department of Corrections did not violate the speedy trial rule because of the excludable delay caused by defendant's arrest and trial on federal charges. Patterson v. State, 318 Ark. 358, 885 S.W.2d 667 (1994).

— —State Causing.

To prevent discharge of accused on the grounds that he has been denied a speedy trial by the state, the state must show good cause for failure to gain custody over the accused and afford him a speedy trial. Randall v. State, 249 Ark. 258, 458 S.W.2d 743 (1970).

—Mistrial.

Where the defendant's attorney requested and was granted a mistrial and the defendant, after the jury had been discharged, asked that a mistrial not be declared, the denial of such request did not deny the defendant's right to a speedy trial since the time ran anew after the declaration of mistrial. Walker v. State, 262 Ark. 331, 556 S.W.2d 655 (1977).

—Motion to Dismiss.

A municipal court speedy trial violation motion to dismiss pursuant to Ark. R. Crim. P. 30.1(a) may be raised in a de novo circuit court proceeding even though Ark. R. Crim. P. 28.1 only refers to trial in a circuit court. Whittle v. Washington County Circuit Court, 325 Ark. 136, 925 S.W.2d 383 (1996).

Venue.

The rights of a defendant may be dealt with only in the circuit court of the county in which the indictment was returned or the information filed where there has been no change of venue. Sims v. State, 203 Ark. 976, 159 S.W.2d 753 (1942).

—Accessories.

Action against accessory for theft in another county was properly brought in county where crime occurred as the distinction between accessories and principals is abolished and the accessory's crime is in the county where the theft occurred. State v. Reeves, 246 Ark. 1187, 442 S.W.2d 229 (1969).

—Apprehension With Stolen Property.

A thief may be prosecuted in any county of the state into which property stolen by him in another state is brought, but not a person who merely received the stolen goods in another state. State v. Johnson, 38 Ark. 568 (1882); Wilson v. State, 97 Ark. 412, 134 S.W. 623 (1911).

—Bad Check Crimes.

Where a building contractor issued a payroll check upon a bank in Little Rock, Pulaski County, to an employee who took it to Garland County and deposited it in a bank; and the check was returned with a notation “insufficient funds,” the violation of the Overdraft Act was consummated when the check was executed and delivered in Pulaski County and the venue was not transitory. Edwards v. State, 232 Ark. 403, 337 S.W.2d 865 (1960).

—Bigamy.

An indictment for bigamy must be found in the county in which the bigamous marriage occurred. Walls v. State, 32 Ark. 565 (1877).

—Change.

The judge of the circuit court could not remove a criminal cause to another county without application of the defendant. Osborn v. State, 24 Ark. 629 (1867) (decision under prior Constitution).

Where a defendant makes a proper application for change of venue, he is entitled to removal to another county in the judicial circuit and is not restricted to another district of the same county. State v. Flynn, 31 Ark. 35 (1876); Wells v. State, 53 Ark. 211, 13 S.W. 737 (1890).

In a criminal case, when a petition for change of venue and supporting affidavits are in order, the only inquiry upon which the trial court may enter is as to the qualifications of the supporting witnesses. Wells v. State, 53 Ark. 211, 13 S.W. 737 (1890).

The discretion of the trial court in passing on a motion for a change of venue will not be disturbed on appeal unless there is an abuse of this discretion. Bailey v. State, 204 Ark. 376, 163 S.W.2d 141 (1942); Robertson v. State, 212 Ark. 301, 206 S.W.2d 748 (1947).

Petitioner's anticipation of difficulties in obtaining a fair and impartial trial because of inflamed public sentiment is a question of fact to be determined by the trial court having jurisdiction to try the offense with which she is charged and, thus, is not a ground for removal from the state court. Rand v. Arkansas, 191 F. Supp. 20 (W.D. Ark. 1961).

Where the trial court determines a defendant cannot receive a fair trial, it has the power to remove the case to some county in an adjoining judicial circuit. Cockrell v. Dobbs, 238 Ark. 348, 381 S.W.2d 756 (1964); Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983); Simmons v. Lockhart, 814 F.2d 504 (8th Cir. 1987), cert. denied, 485 U.S. 1015, 108 S. Ct. 1489, 99 L. Ed. 2d 717 (1988).

There was no error in the court's failure to grant a change of venue to a Negro defendant because of an alleged race riot taking place in the county seat where the defendant did not move for a change of venue and the record was silent as to the existence of a race riot or other type of public disturbance. Scott v. State, 249 Ark. 967, 463 S.W.2d 404 (1971).

Where the site of the murder trial could have been changed to any courthouse in the district where the defendants would have been more likely to have received a more fair and impartial trial, the trial court abused its discretion in refusing to grant the motion for a change of venue. Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979).

Statutes permitting only one change of venue, and then only to a county within the judicial district, are not on their face unconstitutional. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057, 101 S. Ct. 630, 66 L. Ed. 2d 511 (1980).

In capital felony murder trial, where court granted motion for change of venue and moved trial to county adjacent to the one in which the crime occurred, and where two codefendants were tried in other counties of the judicial district and the only other forum available was closer to the scene of the crime than the court's choice of venue, defendant was not prejudiced by counsel's failure to move for another change of venue. Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983).

Trial court's denial of motion for change of venue was not error where, although the crime took place in the only two counties in the judicial circuit, the court also determined that the publicity concerning the case was not so overwhelming and prejudicial that the defendant could not receive a fair trial in the county in which he was tried. Simmons v. Lockhart, 814 F.2d 504 (8th Cir. 1987), cert. denied, 485 U.S. 1015, 108 S. Ct. 1489, 99 L. Ed. 2d 717 (1988).

Section 16-88-207 purports to limit a criminal defendant to one charge of venue is not unconstitutional on its face. As with this section of the constitution, § 16-88-207 can, and must, be read as operative only within the bounds of the Sixth and Fourteenth Amendments to the United States Constitution. Swindler v. Lockhart, 693 F. Supp. 760 (E.D. Ark. 1988), aff'd, 885 F.2d 1342 (8th Cir. 1989).

Defendant's change-of-venue motion alleging adverse pretrial publicity was properly denied in light of the testimony introduced at the hearing which showed less-than-pervasive publicity, the failure of defendant to demonstrate during voir dire that there were publicity-affected jurors, and the fact that he did not use all his peremptory challenges. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997).

The constitution provides that a defendant's right to be tried in the county where the crime was committed is qualified by his right to apply for a change of venue “in such a manner as now is, or may be, prescribed by law” and, thus, contemplates that the manner by which venue may be changed will be determined by legislative enactment. Dansby v. State, 338 Ark. 697, 1 S.W.3d 403 (1999).

The trial court complied with this section of the Arkansas Constitution and § 16-88-203 when it acted upon the defendant's first request for a change of venue and transferred venue to another county; although the defendant labeled his second motion as a motion to withdraw the earlier request for a change of venue, it was actually nothing more than a request for a second change of venue and, therefore, was discretionary with the trial judge. Dansby v. State, 338 Ark. 697, 1 S.W.3d 403 (1999).

Affidavits from members of the petit jury stating that defendant could not receive a fair trial due to pretrial publicity were not enough to show that the trial court abused its discretion in denying defendant's motion for change of venue; the trial court took extensive precautions to ensure defendant a fair trial, all jurors who were possibly tainted with pretrial publicity were dismissed, and defendant voiced his approval of each juror selected. Porter v. State, 359 Ark. 323, 197 S.W.3d 445 (2004).

—Concurrent Jurisdiction.

A statute which provided that, where offenses were committed on the boundary of two counties, the indictment and trial may be in either, was constitutional. State v. Rhoda, 23 Ark. 156 (1861) (decision under prior Constitution).

Where two states have concurrent jurisdiction over a boundary river, an indictment found in the county adjoining the river, for a crime committed on the river, does not violate the Constitution. Brown v. State, 109 Ark. 373, 159 S.W. 1132 (1913).

—Judicial Districts.

An act dividing county into districts and providing for selection of jury for a trial entirely from one district does not violate right of trial by jury from the county where crime committed. Walker v. State, 35 Ark. 386 (1880); Potter v. State, 42 Ark. 29 (1883); Terry v. State, 149 Ark. 462, 233 S.W. 673 (1921).

An act dividing a county into two judicial districts does not divide the county into two counties. A change of venue may remove the cause from the county entirely. Williams v. State, 160 Ark. 587, 255 S.W. 314 (1923).

—Jurisdiction.

The legislature cannot invest a court with jurisdiction of crimes committed beyond the limits of the county. Dougan v. State, 30 Ark. 41 (1875).

The venue in a criminal case is jurisdictional and must be proved by the state. Ward v. State, 77 Ark. 19, 90 S.W. 619 (1905).

State must prove and stipulate jurisdiction over island lying in the Mississippi River. Means v. State, 118 Ark. 362, 176 S.W. 309 (1915).

Before the state is called upon to offer any evidence of jurisdiction, there must be positive evidence that the offense occurred outside the jurisdiction of the court. Nicholson v. State, 319 Ark. 566, 892 S.W.2d 507 (1995).

Nothing in the Arkansas Constitution or Code dealing directly with the place in which misdemeanor charges must be tried limits it to the city in which the court sits; the territorial jurisdiction of municipal courts extends throughout the counties in which they sit. State v. Webb, 323 Ark. 80, 913 S.W.2d 259 (1996).

—Presumption.

Statute which provided a presumption that the offense charged was committed within jurisdiction of the court did not violate the venue provision of the Constitution; consequently, in the absence of evidence that escape from penitentiary occurred in a county other than that in which the penitentiary was located, proper venue was in that county, although prisoner had been furloughed to go to another county. Lyons v. State, 250 Ark. 920, 467 S.W.2d 701 (1971).

Where the statute provides for the presumption of venue unless the evidence affirmatively shows otherwise, the State was not required in its case-in-chief to prove that the trial was being held in the county in which the crime was committed. James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983); Baggett v. State, 15 Ark. App. 113, 690 S.W.2d 362 (1985).

Witnesses.

—Attendance.

The legislature may make reasonable laws regulating the use of compulsory process of witnesses for defendant, but a reasonable time must be allowed for making the process effectual. Graham v. State, 50 Ark. 161, 6 S.W. 721 (1887).

The effect of allowing the substitution of an affidavit for a witness is to deny the accused the constitutional right to compel the attendance of witnesses. Graham v. State, 50 Ark. 161, 6 S.W. 721 (1887).

Where material witnesses within court's jurisdiction were absent because of illness, a court should have granted a continuance. Price v. State, 71 Ark. 180, 71 S.W. 948 (1903); Jones v. State, 99 Ark. 394, 138 S.W. 967 (1911).

Where the authority of the court has been properly invoked, an accused is entitled to compulsory process to secure attendance of witnesses, including the right to delay trial. Carter v. State, 196 Ark. 746, 119 S.W.2d 913 (1938).

This provision does not require that every witness who has knowledge of relevant facts testify and the establishment of the elements of the crime by the testimony of witnesses other than the victim or accuser does not constitute a variance from an indictment naming the victim. Hoover v. State, 262 Ark. 856, 562 S.W.2d 55 (1978).

In second-degree murder prosecution, defendant was not entitled to indefinite continuance, nor to have State admit veracity of hearsay statement of unavailable witness, where the State had tried and failed to locate the witness and there was no basis for believing that she would ever be located. Doles v. State, 280 Ark. 299, 657 S.W.2d 538 (1983).

Where defendant sought to have the trial judge recuse, it was clear that defendant was simply hoping that the subpoenaed witnesses would provide helpful testimony, but this fell short of the required showing that the testimony would have been “both material and favorable to defendant's case”; therefore, defendant showed no prejudice from the trial court's decision not to order the witnesses' appearance and testimony. Holder v. State, 354 Ark. 364, 124 S.W.3d 439 (2003).

—Confrontation.

The recognizance of witness in a felony case may be taken in the absence of the defendant. Bolling v. State, 54 Ark. 588, 16 S.W. 658 (1891).

Where accomplice made a cross-implicating confession and the one implicated was not confronted by his accomplice, it was error. Barnes v. State, 215 Ark. 781, 223 S.W.2d 503 (1949); Kerr v. State, 256 Ark. 738, 512 S.W.2d 13 (1974), cert. denied, 419 U.S. 1110, 95 S. Ct. 783, 42 L. Ed. 2d 806 (1975).

Permitting a physician from the State Hospital to testify with reference to a report compiled by him and other members of the hospital staff does not violate defendant's right to be confronted by witnesses against him. Downs v. State, 231 Ark. 466, 330 S.W.2d 281 (1959).

Where the victim positively and unequivocally identified the defendant and pointed the finger at him before the jury and in the course of the trial, the identification at the trial complied with all rules of confrontation because there was actual confrontation and also cross examination of witness at the trial. French v. State, 231 Ark. 677, 331 S.W.2d 863 (1960).

This provision assures an accused the right of confrontation by witnesses against him, but does not require the appearance of the true owner of property alleged to have been stolen or illegally taken by him, whether the owner is named in the indictment or information or not. Hoover v. State, 262 Ark. 856, 562 S.W.2d 55 (1978).

There was no constitutional violation when the trial court allowed the child witnesses in a sexual molestation case to testify while sitting in a witness chair that faced outside of defendant's line of sight, and while they did not have to look at the defendant while they testified, they were not precluded from doing so. Smith v. State, 340 Ark. 116, 8 S.W.3d 534 (2000).

Confrontation of a witness does not mean in whatever way and to whatever extent a defendant might wish. Smith v. State, 340 Ark. 116, 8 S.W.3d 534 (2000).

In defendant's capital murder case, defendant's confrontation rights were not violated where the trial court admitted the DNA results and allowed an expert to testify because defendant failed to expose any actual tampering, planting of evidence, or significant gap in the chain of custody and the record did not reflect that any of those issues occurred. Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006).

In a second-degree murder case under § 5-10-103, defendant's rights under the federal and state Confrontation Clauses were violated by the admission of an incriminating testimonial statement made by defendant's sister relating to his motive and state of mind; although the sister was unavailable, defendant did not have an opportunity for cross-examination. Moreover, the statement was not offered for a non-hearsay purpose, and the admission was not harmless. Seaton v. State, 101 Ark. App. 201, 272 S.W.3d 854 (2008).

Rape shield statute, § 16-42-101, did not violate defendant's right to compulsory process during defendant's trial for rape of a minor because defendant was able to cross-examine a physician, who testified that the injury to the victim's vaginal area was not a fresh injury, but occurred sometime in the past. Defendant was also able to cross-examine the victim about her allegations. Joyner v. State, 2009 Ark. 168, 303 S.W.3d 54, cert. denied, 558 U.S. 1047, 130 S. Ct. 736, 175 L. Ed. 2d 514 (2009).

In a trial for two counts of rape involving defendant's six-year-old and four-year-old children, defendant's right to confront witnesses was not violated; although defendant may not have made eye contact with a child witness, defendant was situated in the courtroom where defendant could view the witness and hear the witness testify. Tarkington v. State, 2010 Ark. App. 548, 376 S.W.3d 537 (2010).

Defendant's right to confrontation was violated by the admission of a witness's statements through the testimony of an investigating officer; the trial court did not question the state's explanation that the witness was unavailable, nor did it make a finding that the officer's testimony had some indicia of reliability. Cannon v. State, 2010 Ark. App. 698, 379 S.W.3d 561 (2010).

Right of confrontation guaranteed by U.S. Const. Amend. VI and this section extends to a defendant's sentencing proceeding before a jury. To the extent Wallace v. State, 2010 Ark. App. 706, 378 S.W.3d 269, conflicted with this holding, it was overruled. Vankirk v. State, 2011 Ark. 428, 385 S.W.3d 144 (2011).

Where defendant pled guilty to rape and elected to be sentenced by a jury in a bifurcated proceeding, the trial court erred in admitting a videotaped statement of the child rape victim during the sentencing proceeding, because this violated defendant's right of confrontation under U.S. Const. Amend. VI and this section. Vankirk v. State, 2011 Ark. 428, 385 S.W.3d 144 (2011).

Trial court complied with the standards regarding certification for foreign language interpreters in Arkansas courts in former §§ 16-89-104(a) and 16-10-127 [repealed] as the standards established by the Arkansas courts expressly permitted a non-certified interpreter upon a finding that diligent and good faith efforts to obtain a certified interpreter were made and none had been found to be reasonably available. Diligent efforts were made to obtain a certified interpreter, and although the trial court was advised that there were no certification programs for the Kiti language, defendant was able to obtain the services of the interpreter at issue, who was certified and had experience as a Marshallese interpreter and also spoke Kiti. Ludrick v. State, 2011 Ark. App. 54, 381 S.W.3d 87 (2011).

Court assumed that allowing a detective to replay the victim's statement was error for Confrontation Clause purposes, but the inquiry did not end there, and any error in this regard was rendered harmless, as the objectionable statement was cumulative to a strong case; the victim's identification of the shooter was already in evidence by other testimony, eyewitnesses were presented who identified defendant as the shooter, and defendant possessed unspent ammunition that was compatible with the pistol and bullet found, which corroborated the witnesses' accounts. Hughes v. State, 2012 Ark. App. 586 (2012).

Statement made to a detective as part of a criminal investigation was testimonial for Confrontation Clause purposes. Hughes v. State, 2012 Ark. App. 586 (2012).

Defendant's right to confrontation was not violated at the hearing to revoke defendant's suspended sentence; although the jailer whom defendant was accused of having assaulted did not testify, a video of the attack was shown and defendant was allowed to confront and cross-examine all of the witnesses who testified at the hearing. Furthermore, no hearsay evidence was offered. Caldwell v. State, 2018 Ark. App. 588, 565 S.W.3d 539 (2018).

— —Bail Hearing Testimony.

The testimony of a witness at a hearing of application for bail, given in presence of the defendant, may be read on final trial if the witness is out of jurisdiction or can not be found. Sneed v. State, 47 Ark. 180, 1 S.W. 68 (1886).

— —Committing Magistrate Testimony.

The testimony of a witness before a committing magistrate, where defendant had the opportunity of cross-examination, may be read as secondary evidence. Hurley v. State, 29 Ark. 17 (1874); Dolan v. State, 40 Ark. 454 (1883).

— —Cross-Examination.

The right to cross-examine prosecution's witnesses is not unlimited. Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990).

To determine where restrictions placed on the right to cross-examine a witness rise to the level of a constitutional deprivation, a reviewing court must look “to the record as a whole” and resolve whether the restrictions imposed by the trial court on defendant's cross-examination created a substantial danger of prejudice by depriving defendant of a meaningful opportunity to elicit available, relevant information that was likely to effectively impeach the credibility of the witness. Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990).

It is generally permissible for an accused to show by cross-examination anything bearing on the bias of the testimony of a material witness. Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994).

The right of an accused to show the bias of a witness does not lie within the trial court's discretion; however, once the main circumstances showing bias have been admitted, the trial judge does have the discretion to determine how far the examiner may delve into the details. Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994).

The trial court may impose reasonable limits on cross-examination based upon concerns about harassment, prejudice, waste of time, unnecessary duplication of testimony, confusion of issues, or interrogation that is repetitive or only marginally relevant. Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994).

Defendant failed to demonstrate a violation of his right of confrontation; defendant was not denied the opportunity to effectively cross-examine the informant regarding her motives for testifying, and the circuit court found that further cross-examination with respect to the informant's pending criminal charges was of marginal relevance and unduly prejudicial. Chantharath v. State, 2016 Ark. App. 35, 480 S.W.3d 223 (2016).

— —Deceased Witness.

The testimony of a deceased witness on a former trial could be proved on a second trial for the same offense. Pope v. State, 22 Ark. 372 (1860) (decision under prior Constitution); Green v. State, 38 Ark. 304 (1881).

— —Examining Court Testimony.

Evidence of the testimony of a witness before an examining court, where the defendant had the opportunity of cross-examination, is admissible where the witness is no longer available. Shackelford v. State, 33 Ark. 539 (1878); Butler v. State, 83 Ark. 272, 103 S.W. 382 (1907); Walls v. State, 194 Ark. 578, 109 S.W.2d 143 (1937).

— —Former Trial Testimony.

The testimony of a witness given in a former trial may be admitted in evidence where the witness is out of the state. A witness is competent to testify as to the testimony of another witness on former trial, although unable to give his exact words. Vaughan v. State, 58 Ark. 353, 24 S.W. 885 (1894).

Because what was at stake in a bond-revocation hearing was substantially different from what was at stake in a full-fledged hearing at trial, the State did not demonstrate that defendant had a similar motive in the trial in order to make use of Ark. R. Evid. 804(b)(1); thus, the unavailable officer's testimony from the bond-revocation hearing was erroneously admitted into evidence. Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002) (decided under Sixth Amendment and Ark. R. Evid. 804).

— —Grand Jury Testimony.

Court may not permit the written statement of a witness made before the grand jury to be read in evidence at the trial without permission of defendant. Hinson v. State, 109 Ark. 359, 159 S.W. 1126 (1913).

— —Physical Evidence.

A statute which permits the introduction of evidence of the general reputation of a building or place where a nuisance is alleged to exist to prove the existence of the nuisance is constitutional. Foley v. State, 200 Ark. 521, 139 S.W.2d 673 (1940).

An accused has no right to be confronted with physical evidence. Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979).

Defendants' constitutional right to confront witnesses against them was not violated by the failure of the police to preserve the breath samples taken from them. Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985); Johnston v. City of Fort Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985).

— —Record of Prior Convictions.

The introduction of a copy of the defendant's record of prior convictions which was certified by the custodian of the records, in the absence of the custodian, did not violate the defendant's right of confrontation. Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982).

— —Two-Way Live Video.

Even though defendant's right to confront witnesses against him was violated by a detective's remote testimony through two-way live video, the error was harmless because of the victims' detailed testimony of the sexual misconduct, which was sufficient to support defendant's convictions, the testimony of both victims' mothers and other witnesses, and the additional photos that were introduced outside of the detective's testimony. Lewis v. State, 2019 Ark. App. 43, 571 S.W.3d 498 (2019).

— —Video Depositions.

The use of video deposition testimony at trial did not violate the defendant's constitutional right to be confronted with the witnesses against him where the court found that the use of the video deposition was necessary because the witness was unavailable to testify in person and noted the witness had already been flown back from Africa twice for the trial. Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000), cert. denied, 532 U.S. 1039, 121 S. Ct. 2001, 149 L. Ed. 2d 1003 (2001).

— —Waiver.

Presence of a witness was waived where the defendant allowed the reading of the witness' statement before the examining magistrate, objecting thereto without stating the grounds. Wells v. State, 16 S.W. 577 (1892).

Cited: Shipley v. State, 50 Ark. 49, 6 S.W. 226 (1887); Ware v. State, 159 Ark. 540, 252 S.W. 934 (1923); Veatch v. State, 221 Ark. 44, 251 S.W.2d 1015 (1952); Pellegrini v. Wolfe, 225 Ark. 459, 283 S.W.2d 162 (1955); Bailey v. State, 229 Ark. 74, 313 S.W.2d 388 (1958); Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960); Hopper v. Wolfe, 238 Ark. 932, 385 S.W.2d 783 (1965); Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972); Ellingburg v. State, 254 Ark. 199, 492 S.W.2d 904 (1973); Roach v. State, 255 Ark. 773, 503 S.W.2d 467 (1973); Williams v. Turner, 255 Ark. 907, 503 S.W.2d 901 (1974); Cotton v. State, 256 Ark. 527, 508 S.W.2d 738 (1974); Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975); Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977); Faulk v. Mabry, 600 F.2d 172 (8th Cir. 1979); Meyers v. State, 271 Ark. 886, 611 S.W.2d 514 (1981); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982); Wilson v. City of Pine Bluff, 6 Ark. App. 286, 641 S.W.2d 33 (1982); Wilson v. City of Pine Bluff, 278 Ark. 65, 643 S.W.2d 569 (1982); Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983); Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984); Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); Williams v. State, 289 Ark. 443, 711 S.W.2d 825 (1986); Lowe v. State, 290 Ark. 37, 716 S.W.2d 1 (1986); Ellison v. Langston, 290 Ark. 238, 718 S.W.2d 446 (1986); Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988); Horn v. State, 294 Ark. 464, 743 S.W.2d 814 (1988); City of Springdale v. Jones, 295 Ark. 129, 747 S.W.2d 98 (1988); Griffin v. State, 297 Ark. 208, 760 S.W.2d 852 (1988); Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989); Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); Brooks v. State, 36 Ark. App. 40, 819 S.W.2d 288 (1991); Lewis v. State, 309 Ark. 392, 831 S.W.2d 145 (1992); Turbyfill v. State, 312 Ark. 1, 846 S.W.2d 646 (1993); Sexson v. Municipal Court, 312 Ark. 261, 849 S.W.2d 468 (1993); Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993); Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); State v. Roberts, 321 Ark. 31, 900 S.W.2d 175 (1995); Cigainero v. State, 321 Ark. 533, 906 S.W.2d 282 (1995); Cook v. State, 321 Ark. 641, 906 S.W.2d 681 (1995); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943; Burton v. State, 327 Ark. 65, 937 S.W.2d 634 (1997); Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997); Johnson v. State, 328 Ark. 526, 944 S.W.2d 115 (1997); Cates v. State, 329 Ark. 585, 952 S.W.2d 135 (1997); McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999); Ridling v. State, 348 Ark. 213, 72 S.W.3d 466 (2002); Davis v. State, 81 Ark. App. 17, 97 S.W.3d 921 (2003); Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2003); Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004).

§ 11. Habeas corpus.

The privilege of the writ of habeas corpus shall not be suspended; except by the General Assembly, in case of rebellion, insurrection or invasion, when the public safety may require it.

Cross References. Habeas corpus, § 16-112-101 et seq.

Research References

Ark. L. Rev.

Post-Conviction Relief in Arkansas, 24 Ark. L. Rev. 57.

U. Ark. Little Rock L.J.

Survey of Arkansas Law: Constitutional Law, 4 U. Ark. Little Rock L.J. 179.

Case Notes

Absolute Right.

A habeas corpus could issue, upon proper showing, to the party injured if he was of majority, or to his guardian, if he was a minor, wherever there was an unlawful restraint of the personal liberty. Wright v. Johnson, 5 Ark. 687 (1844) (decision under prior Constitution).

Appeal.

The Supreme Court of Arkansas does not have the jurisdiction to review an order of the county court on a writ of certiorari in a habeas corpus proceeding; the remedy is by appeal to the circuit court. Ex parte Dame, 162 Ark. 382, 259 S.W. 754 (1923).

Circuit Court.

A judge of the circuit court had the power to hear a habeas corpus petition. Wright v. Johnson, 5 Ark. 687 (1844) (decision under prior Constitution).

The circuit judge had the highest duty to award a habeas corpus to try the illegal imprisonment of a ward and, if found unnecessarily restrained of her liberty, of restoring the ward's person to the possession and custody of the guardian. Wright v. Johnson, 5 Ark. 687 (1844) (decision under prior Constitution).

The Supreme Court of Arkansas should issue a writ of mandamus to a circuit judge to determine a habeas corpus where he refused wrongfully to do so. Wright v. Johnson, 5 Ark. 687 (1844) (decision under prior Constitution).

Denial of Writ Reversed.

Where petitioner raised a valid claim of an illegal suspended sentence for delivery of a controlled substance, for which the circuit court entered a judgment of revocation years later and then imposed the suspended sentence, the circuit court's order denying petitioner's request for a writ of habeas corpus was reversed since detention for an illegal period of time was precisely what a writ of habeas corpus was designed to correct. Taylor v. State, 354 Ark. 450, 125 S.W.3d 174 (2003).

Denial Proper.

Denial of petition for habeas corpus relief was proper, because none of the petitioner's claims in his petition raised a question of jurisdiction or established that the commitment was invalid on its face; the petitioner's claims concerning his habitual-offender status were considered by the trial court when the pleas of guilty were entered, and the trial court's finding that the status was correct under the facts of the case was affirmed on appeal. Misenheimer v. Hobbs, 2012 Ark. 343 (2012).

Guardian and Ward.

Upon petition by a guardian to a circuit judge showing that the ward was illegally restrained within the circuit, a habeas corpus should be awarded to bring the ward before the judge. Wright v. Johnson, 5 Ark. 687 (1844) (decision under prior Constitution).

Time to File Petition.

There is no time limit on pursuing a writ of habeas corpus; a time limit would contravene the proscription against suspending the right to habeas corpus. Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999).

Cited: Bailey v. State, 229 Ark. 74, 313 S.W.2d 388 (1958); May v. Barg, 276 Ark. 199, 633 S.W.2d 376 (1982).

§ 12. Suspension of laws.

No power of suspending or setting aside the law or laws of the State, shall ever be exercised, except by the General Assembly.

Research References

U. Ark. Little Rock L.J.

Sallings, Survey of Arkansas Law, 3 U. Ark. Little Rock L.J. 277.

Case Notes

Executive Clemency.

The power of the governor to grant clemency is limited to individuals under sentence for a crime, penalty, or forfeiture, and does not extend to the granting of general amnesty, nor relief from civil penalties and forfeitures. Hutton v. McCleskey, 132 Ark. 391, 200 S.W. 1032 (1918).

Legislature's Authority.

If any laws had been set aside or suspended in the enactment of § 9-27-318, which allowed prosecutors discretion to bring charges against 16-year-olds in the criminal division, it would have been the General Assembly that did so, which it had the authority to do under this section of article 2 of the Arkansas state constitution. Section 9-27-318 did not violate this section of article 2. C.B. v. State, 2012 Ark. 220, 406 S.W.3d 796 (2012).

Regulation of Practice of Law.

Authority of court in regulating the practice of law includes the preparation of rules determining and setting out the qualifications of one who desires to take the bar examination. In re Pitchford, 265 Ark. 752, 581 S.W.2d 321, cert. denied, 444 U.S. 863, 100 S. Ct. 131, 62 L. Ed. 2d 85 (1979).

§ 13. Redress of wrongs.

Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay; conformably to the laws.

Research References

Am. Jur. 16B Am. Jur. 2d, Constitutional Law, § 670 et seq.

Ark. L. Rev.

Note, Attwood v. Estate of Attwood: A Partial Abrogation of the Parental Immunity Doctrine, 36 Ark. L. Rev. 451.

Note, Altered or Absent Evidence: The Tort of Spoliation: Wilson v. Beloit Corp., 43 Ark. L. Rev. 453.

Killenbeck, And Then They Did … ? Abusing Equity in the Name of Justice, 44 Ark. L. Rev. 235

Recent Development: Worker's Compensation, 58 Ark. L. Rev. 753.

The New Judicial Federalism Takes Root in Arkansas, 58 Ark. L. Rev. 883.

C.J.S. 16D C.J.S., Constitutional Law, § 2410 et seq.

U. Ark. Little Rock L.J.

Sullivan, The Need for a Business or Payroll Records Affidavit for Use in Child Support Matters, 11 U. Ark. Little Rock L.J. 651.

U. Ark. Little Rock L. Rev.

Lynn Foster, The Hands of the State: The Failure to Vacate Statute and Residential Tenants’ Rights In Arkansas, 36 U. Ark. Little Rock L. Rev. 1 (2013).

Case Notes

In General.

This section is a part of the Bill of Rights, and is a guarantee of rights, and not a restriction on the power of the legislature to enact remedial laws. Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961), overruled, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), overruled in part, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), superseded by statute as stated in, Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003).

Statute which has as its purpose or effect the denial of the right of a citizen to free and untrammelled access to the courts or which seeks by intimidation, vexation, or otherwise to discourage the exercise of that right is unconstitutional. Bennett v. NAACP, 236 Ark. 750, 370 S.W.2d 79 (1963).

Alienation of Affections.

This section, without further legislation, does not give a divorced husband a right of action for the benefit of a child of the marriage for the alienation of affections of the child and wife from the husband, or the loss by the child of the security of a home life, against the alienator. Lucas v. Bishop, 224 Ark. 353, 273 S.W.2d 397 (1954).

Arbitration.

The legislature has no power to substitute boards of arbitration for the courts without the consent of the parties, nor to tax an attorney's fee as a penalty for refusal to abide by the assessments or awards of such boards. St. Louis, Iron Mountain & S. Ry. v. Williams, 49 Ark. 492, 5 S.W. 883 (1887).

Claims Against Public Officers and Employees.

This section prevents the General Assembly from giving the claims commission exclusive jurisdiction of tort claims against state employees or officers for their unlawful acts. Grimmett v. Digby, 267 Ark. 192, 589 S.W.2d 579 (1979).

Common Law Rights.

A person has no vested property right, no vested interest in any rule of the common law, which the legislature may not increase or diminish and even abolish. Harlow v. Ryland, 78 F. Supp. 488 (E.D. Ark. 1948), aff'd, 172 F.2d 784 (8th Cir. 1949).

Court Costs.

The statutes authorizing the assessment of special court costs for payment of rent for space occupied in the justice building by the Supreme Court, clerk of the Supreme Court, the Supreme Court library, and the Attorney General in the event that the legislature does not make the necessary appropriations did not violate this section. McArthur v. Smallwood, 225 Ark. 328, 281 S.W.2d 428 (1955).

Filing fees are universally required in courts throughout the nation on the premise that it is proper to require litigants to pay a small part of the expense necessary for the maintenance of the courts, and such a requirement is constitutional. Cook v. Municipal Court, 287 Ark. 382, 699 S.W.2d 741 (1985).

Damages.

The State Highway Commission cannot be compelled by mandamus to institute an eminent domain proceeding against the landowners to the end that a forum may be provided for the recovery of damages. Bryant v. Ark. State Hwy. Comm'n, 233 Ark. 41, 342 S.W.2d 415 (1961).

Loss of use of a truck during the time it was being repaired was a compensable element of damages. Sharp v. Great S. Coaches, Inc., 256 Ark. 773, 510 S.W.2d 266 (1974).

Although a municipality's violation of a competitive bidding statute may create a right to an equitable remedy or mandamus, it does not give rise to a claim for damages. Klinger v. City of Fayetteville, 297 Ark. 385, 762 S.W.2d 388 (1988).

Elections.

Where candidate had pre-election remedy to correct errors on ballot and post-election remedy of contest, he is not denied remedies in violation of the constitution. McFarlin v. Kelly, 246 Ark. 1237, 442 S.W.2d 183 (1969).

Guest Statutes.

A person is not denied a legal remedy for all injuries to his person, property, or character by a statute which denies a gratuitous guest a cause of action for injuries received in an automobile not operated willfully and wantonly in disregard of the rights of others. Roberson v. Roberson, 193 Ark. 669, 101 S.W.2d 961 (1937).

Statute prohibiting suits by guests against owner or operator of car, regardless of degree of negligence, is not unconstitutional on the ground that statute violated this section. Harlow v. Ryland, 172 F.2d 784 (8th Cir. 1949).

Income Withholding.

There was no merit to the argument that the income-withholding statutory scheme violated this section, because § 9-17-506 allowed the employee a way to seek redress in the event the support order was defective. Schultz v. Butterball, 2012 Ark. 163, 402 S.W.3d 61 (2012).

License Requirement.

Summary judgment dismissal of the contractor's suit was proper, because the contractor's construction of a natural-gas pipeline wherein space was leased fell squarely within the ambit of the statutory definition of contractor in § 17-25-101(a)(1), and § 17-25-103(d) did not violate this section, when the statute did not abrogate the right of all contractors to bring suit, but denied that right only to those contractors who did not possess a license; as designed to protect the public, the statute advanced the goal of providing an incentive for contractors to undergo the licensing process to ensure that the standards set by the licensing board were satisfied. Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157, 400 S.W.3d 701 (2012).

Limitation on Right.

The county court may not refuse to hear and determine a claim against the county in favor of any individual until he will release all errors in a case wherein the county has obtained judgment against him. Ex parte Taylor, 5 Ark. 49 (1843) (decision under prior Constitution).

The legislature possesses no power to cut off all remedy on demands against the estate of a deceased person, or to clog the assertion of a right as to render it inoperative or valueless. Riggs, Peabody & Co. v. Martin, 5 Ark. 506 (1844) (decision under prior Constitution).

In a contest of the probate of a will begun 11½ years after the will was probated, the probate court does not have jurisdiction to set aside its former judgment, and this is no denial of the right to a remedy for all injuries which may be received. Dunn v. Bradley, 175 Ark. 182, 299 S.W. 370 (1927).

Statute making it a crime for one person to propose to another that he litigate, regardless of the intention or merits of the proposed litigation, bars any group from access to the judiciary and is unconstitutional. Bennett v. NAACP, 236 Ark. 750, 370 S.W.2d 79 (1963).

Statute which limited recovery in personal injury actions arising from motor vehicle accidents to persons not related within the third degree by blood or marriage to the owner or operator of the vehicle was unconstitutional. Emberson v. Buffington, 228 Ark. 120, 306 S.W.2d 326 (1957).

Medical Injuries.

A legitimate state purpose is served by the notice requirement of statute governing actions for medical injuries and it is not unconstitutional. Simpson v. Fuller, 281 Ark. 471, 665 S.W.2d 269 (1984).

Statute of limitations in the Medical Malpractice Act, § 16-114-201 et seq., has a rational basis and it does not deprive a claimant of a constitutional right to a redress of wrongs or a jury trial, nor does it violate the right to equal protection. Davis v. Parham, 362 Ark. 352, 208 S.W.3d 162 (2005).

Medical Malpractice Act, § 16-114-201 et seq., in its entirety passes the rational-basis test; there is a clear rational relationship between the burden of proof required and the achievement of the legitimate governmental objective of reducing healthcare costs. Davis v. Parham, 362 Ark. 352, 208 S.W.3d 162 (2005).

Claimant was not denied a remedy for her injuries in violation of Ark. Const., Art. 2, § 13, because, although the charitable-immunity doctrine barred recovery against the hospital, a charitable facility, the claimant was free to bring suit against the hospital employees. Sowders v. St. Joseph's Mercy Health Ctr., 368 Ark. 466, 247 S.W.3d 514 (2007) (decision under prior law).

Mental Anguish.

Statute permitting recovery of damages for mental anguish in wrongful death actions does not violate this section of the Constitution. Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961), overruled, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), overruled in part, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), superseded by statute as stated in, Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003).

Political Rights.

Where political rights are asserted in the action, there is no remedy under this section of the Constitution, which protects personal and property rights. McFarlin v. Kelly, 246 Ark. 1237, 442 S.W.2d 183 (1969).

Postconviction Proceedings.

Appellant convicted of three counts of rape was not entitled to postconviction relief based on newly discovered evidence that his trial counsel was using methamphetamine while representing appellant and pleaded guilty to drug charges. Appellant did not show that his right to an adequate statutory remedy under this section of Article 2 was violated because he failed to demonstrate how he was prejudiced by trial counsel's alleged impairment. Charland v. State, 2012 Ark. 246 (2012).

Prompt Redress.

A statute requiring the party appealing the decision of an appraisal board to pay attorney's fees in court in the event of unfavorable judgment is unconstitutional for violation of the right to a remedy for all injuries or wrongs. St. Louis, Iron Mountain & S. Ry. v. Williams, 49 Ark. 492, 5 S.W. 883 (1887).

An act which provides for a second judicial district to be held on the same days as those fixed for the prior district is unconstitutional since the act deprives the suitors of the prior district of their right to prompt redress for injuries. Ex parte Williams, 69 Ark. 457, 65 S.W. 711 (1901).

Judgment refusing to discharge the accused on motion to dismiss on the ground of former jeopardy was held error on appeal from such motion; the party was entitled to have his rights tested and determined speedily and it was not necessary that he first be tried and then appeal. Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959).

Right to Trial.

Under statute giving court authority to set time for new trial after discharge of jury without verdict, the court could direct when the cause would be tried but not whether it could be tried. Gregory v. Colvin, 235 Ark. 1007, 363 S.W.2d 539 (1963).

Sovereign Immunity.

This section was never intended to prevent governmental immunity and such immunity to tort actions is still the law. Hardin v. City of DeValls Bluff, 256 Ark. 480, 508 S.W.2d 559 (1974).

Statutes which grant immunity from tort liability to subdivisions of the State are not unconstitutional as a violation of this section, which guarantees all citizens a means of redress from wrongs. Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984).

In an action filed against a school district and a bus driver after the rape of a student, the provision of limited immunity under § 21-9-301 did not violate this section of Article 2, and an appellate court was unable to overturn caselaw to the extent that it shielded a school district from accountability under the Arkansas Public Education Act of 1997, § 6-15-1001 et seq., because judicial precedent from the Arkansas Supreme Court had to be followed. Young v. Blytheville Sch. Dist., 2013 Ark. App. 50, 425 S.W.3d 865 (2013).

Under Ark. Community Correction v. Barnes, 2018 Ark. 122, sovereign immunity barred an employee's suit against a state official for damages under the Arkansas Whistle-Blower Act, § 21-1-601 et seq.; sovereign immunity under Ark. Const., Art. 5, § 20, overrode the employee's right to a remedy, under Ark. Const., Art. 2, § 13, and a suit against a state official in his or her official capacity is a suit against the official's office. Milligan v. Singer, 2019 Ark. 177, 574 S.W.3d 653 (2019).

Appellate court rejected plaintiff's argument that Ark. Const., Art. 2, § 13 supersedes Ark. Const., Art. 5, § 20, noting that the argument was indistinguishable from that made in Milligan v. Singer, 2019 Ark. 177; the legislature established the Arkasas State Claims Commission so that claims against the State may be addressed while preserving the State's sovereign immunity. However, in their individual capacities, state officials do not enjoy the immunity granted to the State under Ark. Const., Art. 5, § 20. Harris v. Hutchinson, 2020 Ark. 3, 591 S.W.3d 778 (2020).

Standing.

Plaintiff challenging § 16-114-203 on grounds that it violates the “open door” provision of this section was found to lack standing. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997), overruled in part, Hardin v. Bishop, 2013 Ark. 395, 430 S.W.3d 49 (2013).

Urban Renewal Plan.

An urban renewal plan cannot be in violation of this section as it would be the actual taking or damaging of lands for public use, rather than any plan or purpose to take or damage same, that must be compensated. Adams v. Sims, 238 Ark. 696, 385 S.W.2d 13 (1964).

Workers' Compensation.

Under the state constitutional rights to a jury trial (this section) and to the redress of wrongs (Const., Art. 2, § 13), and the Workers' Compensation Law, an employee injured by the negligence of a third party is entitled to have a jury determine the issue of causation, as well as any other factual issues; thus, the trial court erred in giving preclusive effect to the Workers' Compensation Commission's determination on the issue of causation. Craven v. Fulton Sanitation Serv., 361 Ark. 390, 206 S.W.3d 842 (2005).

Denial of employer's writ of prohibition after the circuit court refused to dismiss employee's negligence claim against employer was proper pursuant to this section because a worker whose injury was not covered by the Workers' Compensation Law, § 11-9-101 et seq., was not precluded from filing a claim in tort against his employer. Automated Conveyor Sys. v. Hill, 362 Ark. 215, 208 S.W.3d 136 (2005).

Cited: Harlow v. Ryland, 218 Ark. 659, 238 S.W.2d 502 (1951); Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970); Hardin v. City of DeValls Bluff, 256 Ark. 480, 508 S.W.2d 559 (1974); Stevens v. Mid-Continent Invs., Inc., 257 Ark. 439, 517 S.W.2d 208 (1974); Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983); Smith v. Stewart, 10 Ark. App. 201, 662 S.W.2d 202 (1983); Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984); Lacey v. Bekaert Steel Wire Corp., 619 F. Supp. 1234 (W.D. Ark. 1985); McCammon v. Boyer, 285 Ark. 288, 686 S.W.2d 421 (1985); National Bank of Commerce v. HCA Health Servs. of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990); United States Fid. & Guar. Co. v. Brewer, 52 Ark. App. 214, 916 S.W.2d 773 (1996); Garrison v. City of N. Little Rock, 332 Ark. 103, 964 S.W.2d 185 (1998).

§ 14. Treason.

Treason against the State shall only consist in levying and making war against the same, or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

§ 15. Unreasonable searches and seizures.

The right of the people of this State to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

Cross References. Issuance of search warrants upon oral testimony, § 16-82-201.

Search and seizure pursuant to warrant, Ark. R. Crim. P. 13.1 et seq.

Research References

ALR.

Sufficiency of showing of reasonable belief of danger to officers or others excusing compliance with “knock and announce” requirement — state criminal cases. 17 A.L.R.4th 301.

Disputation of truth of matter stated in affidavit in support of search. 24 A.L.R.4th 1266.

Employment of photographic equipment to record presence and nature of items as constituting unreasonable search. 27 A.L.R.4th 532.

Validity of searches conducted as condition of entering public premises. 28 A.L.R.4th 1250.

Lawfulness of warrantless search of purse or wallet of person arrested or suspected of crime. 29 A.L.R.4th 771.

Admissibility, in criminal case, of evidence discovered by warrantless search in connection with fire investigation — post-Tyler cases. 31 A.L.R.4th 194.

Propriety in state prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant. 32 A.L.R.4th 378.

Validity of, and admissibility of evidence discovered in, search authorized by judge over telephone. 38 A.L.R.4th 1145.

Admissibility, in criminal case, of physical evidence obtained without consent by surgical removal from persons' body. 41 A.L.R.4th 60.

Seizure pursuant to, and validity of arrest made in reliance upon, uncorrected or outdated warrant list or similar police records. 45 A.L.R.4th 550.

Officer's ruse to gain entry as affecting admissibility of plain view evidence. 47 A.L.R.4th 425.

Necessity that police obtain warrant before taking possession of, examining or testing evidence discovered in search by private person. 47 A.L.R.4th 501.

Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's adult relative other than spouse. 55 A.L.R.5th 125.

Admissibility of evidence discovered in warrantless search of rental property authorized by lessor of such property — state cases. 61 A.L.R.5th 1.

Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's spouse (residence or nonresidence) — state cases. 65 A.L.R.5th 407.

Validity of police roadblocks or checkpoints for purpose of discovery of alcoholic intoxication — post-Sitz cases. 74 A.L.R.5th 319.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches. 99 A.L.R.5th 557.

Error, in either search warrant or application for warrant, as to address of place to be searched as rendering warrant invalid. 103 A.L.R.5th 463.

Search warrant as authorizing search of structures on property other than main house or other building, or location other than designated portion of building. 104 A.L.R.5th 165.

Admissibility, in civil proceeding, of evidence obtained through unlawful search and seizure. 105 A.L.R.5th 1.

Odor detectable by unaided person as furnishing probable cause for search warrant. 106 A.L.R.5th 397.

When are facts offered in support of search warrant for evidence of sale or possession of cocaine so untimely as to be stale — State cases. 109 A.L.R.5th 99.

When are facts offered in support of search warrant for evidence of sexual offense so untimely as to be stale — State cases. 111 A.L.R.5th 239.

When are facts relating to marijuana, provided by one other than police or other law enforcement officer, so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of a controlled substance — State cases. 112 A.L.R.5th 429.

When are facts relating to drug other than cocaine or marijuana so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of controlled substance — State cases. 113 A.L.R.5th 517.

Validity of warrantless search of motor vehicle based on odor of marijuana — State cases. 114 A.L.R.5th 173.

When are facts relating to marijuana, provided by police or other law enforcement officer, so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of controlled substance — State cases. 114 A.L.R.5th 235.

Validity of warrantless search based in whole or in part on odor of narcotics other than marijuana, or chemical related to manufacture of such narcotics. 115 A.L.R.5th 477.

Validity of routine roadblocks by state or local police for purpose of discovery of driver's license, registration, and safety violations. 116 A.L.R.5th 479.

Use of trained dog to detect narcotics or drugs as unreasonable search in violation of state constitutions. 117 A.L.R.5th 407.

Adequacy of defense counsel's representation of criminal client regarding search and seizure issues — Motions and objections during trial and matters other than pretrial motions. 117 A.L.R.5th 513.

Validity of warrantless search of motor vehicle driver based on odor of marijuana — State cases. 123 A.L.R.5th 179.

Validity of search conducted pursuant to parole warrant. 123 A.L.R.5th 221.

Validity of warrantless search of motor vehicle passenger based on odor of marijuana. 1 A.L.R.6th 371.

Application of Leon good faith exception to exclusionary rule where police fail to comply with knock and announce requirement during execution of search warrant. 2 A.L.R.6th 169.

Application in state narcotics cases of collective knowledge doctrine or fellow officers' rule under Fourth Amendment-Cocaine cases. 4 A.L.R.6th 599.

Application in state narcotics cases of collective knowledge doctrine or fellow officers' rule under Fourth Amendment-Drugs other than marijuana and cocaine and unidentified drugs. 12 A.L.R.6th 553.

Construction and application of rule permitting knock and talk visits under Fourth Amendment and state constitutions. 15 A.L.R.6th 515.

When is warrantless entry of house or other building justified under “hot pursuit” doctrine. 17 A.L.R.6th 327.

Hospital as Within Constitutional Provision Forbidding Unreasonable Searches and Seizures. 28 A.L.R.6th 245.

Application in State Narcotics Cases of Collective Knowledge Doctrine or Fellow Officers' Rule Under Fourth Amendment--Marijuana Cases. 35 A.L.R.6th 497.

Validity of Search of Cruise Ship Cabin. 43 A.L.R.6th 355.

Validity of Search and Reasonable Expectation of Privacy as Affected by No Trespassing or Similar Signage. 45 A.L.R.6th 643.

Construction and Application of “Automatic Companion Rule” or Person's “Mere Propinquity” to Arrestee to Determine Propriety of Search of Person for Weapons or Firearms. 47 A.L.R.6th 423.

Construction and Application of Consent-Once-Removed Doctrine, Permitting Warrantless Entry Into Residence by Law Enforcement Officers for Purposes of Effectuating Arrest or Search Where Confidential Informant or Undercover Officer Enters with Consent and Observes Criminal Activity or Contraband in Plain View. 50 A.L.R.6th 1.

Sufficiency of Showing to Support No-Knock Search Warrant — Cases Decided After Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997). 50 A.L.R.6th 455.

Construction and Application of Supreme Court's Holding in Arizona v. Gant , 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), That Police May Search Vehicle Incident to Recent Occupant's Arrest Only if Arrestee is Within Reaching Distance of Passenger Compartment at Time of Search or It is Reasonable to Believe Vehicle Contains Evidence of Offense — Substantive Traffic Offenses. 55 A.L.R.6th 1.

Construction and Application of Supreme Court's Holding in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), That Police May Search Vehicle Incident to Recent Occupant's Arrest Only if Arrestee Is Within Reaching Distance of Passenger Compartment at Time of Search or It Is Reasonable to Believe Vehicle Contains Evidence of Offense — Pretextual Traffic Offenses and Other Criminal Investigations. 56 A.L.R.6th 1.

Necessity of Rendering Medical Assistance as Circumstance Permitting Warrantless Entry or Search of Building or Premises. 58 A.L.R.6th 499.

Propriety of Execution of No-Knock Search Warrant. 59 A.L.R.6th 311.

Validity of Search of Wireless Communication Devices. 62 A.L.R.6th 161.

Search and Seizure: Reasonable Expectation of Privacy in Backyards. 62 A.L.R.6th 413.

Search and Seizure: Reasonable Expectation of Privacy in Outbuildings. 67 A.L.R.6th 531.

Search and Seizure: Reasonable Expectation of Privacy in Side Yards. 69 A.L.R.6th 275.

Adequacy of Defense Counsel's Representation of Criminal Client Regarding Search and Seizure Issues — Pretrial Motions — Suppression Motions Where No Warrant Involved. 71 A.L.R.6th 1.

Adequacy of Defense Counsel's Representation of Criminal Client Regarding Search and Seizure Issues — Pretrial Motions — Suppression Motions Where Warrant Was Involved. 72 A.L.R.6th 1.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for the Truth — Underlying Homicide and Assault Offenses. 72 A.L.R.6th 437.

Adequacy of Defense Counsel's Representation of Criminal Client Regarding Search and Seizure Issues — Pretrial Motions — Motions Other than for Suppression. 73 A.L.R.6th 1.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for Truth — Underlying Drug Offenses. 73 A.L.R.6th 49.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for the Truth — Underlying Sexual Offenses. 74 A.L.R.6th 69.

Permissibility under Fourth Amendment of Investigatory Traffic Stop Based Solely on Anonymous Tip Reporting Drunk Driving. 84 A.L.R.6th 293.

Expectation of Privacy in and Discovery of Social Networking Web Site Postings and Communications. 88 A.L.R.6th 319.

Search and Seizure: What Constitutes Abandonment of Real Property Within Rule that Search and Seizure of Abandoned Property Is Not Unreasonable. 99 A.L.R.6th 397 (2014).

Application of Collective Knowledge Doctrine or Fellow Officers' Rule Under Fourth Amendment in Prosecution for Prostitution, Pornography, or Other Sexually Based Offense – State Cases. 101 A.L.R.6th 299 (2015).

Application of Collective Knowledge Doctrine or Fellow Officers' Rule Under Fourth Amendment in Murder, Homicide or Manslaughter Prosecution — State Cases. 101 A.L.R.6th 331 (2015).

Application of Collective Knowledge Doctrine or Fellow Officers' Rule Under Fourth Amendment in Prosecution for Robbery, Burglary, Larceny, or Other Theft Offense — State Cases. 103 A.L.R.6th 347 (2015).

Whether Police Scan of Magnetic Strip on Credit or Debit Card Violates Reasonable Expectation of Privacy under Fourth Amendment. 5 A.L.R.7th Art. 1 (2015).

Construction and Application of Supreme Court’s Holding in Florida v. Jardines, that Canine Sniff on Front Porch of Home Constitutes “Search” for Purposes of Fourth Amendment in Subsequent Similar Factual Circumstances. 15 A.L.R.7th Art. 3.

Validity of Search and Seizure Warrant, and Execution Thereof, to Disclose Records and Electronic Communications Relating to Specific E-mail Address. 15 A.L.R.7th Art. 5 (2015).

When Are Facts Offered in Support of Search Warrant for Evidence of Federal Drug Offense So Untimely As To Be Stale. 13 A.L.R. Fed. 2d 1.

Allowable Use of Federal Pen Register and Trap and Trace Device to Trace Cell Phones and Internet Use. 15 A.L.R. Fed. 2d 537.

Validity and Application of Anticipatory Search Warrant — Federal Cases. 31 A.L.R. Fed. 2d 123.

Unconstitutional Search or Seizure as Warranting Suppression of Evidence in Removal Proceeding. 40 A.L.R. Fed. 2d 489.

Border Search or Seizure of Traveler's Laptop Computer, or Other Personal Electronic or Digital Storage Device. 45 A.L.R. Fed. 2d 1.

Racial Profiling by Law Enforcement Officers in Connection with Traffic Stops as Infringement of Federal Constitutional Rights or Federal Civil Rights Statutes. 91 A.L.R. Fed. 2d 1 (2015).

Validity of Use of Cellular Telephone or Tower to Track Prospective, Real Time, or Historical Position of Possessor of Phone Under Fourth Amendment. 92 A.L.R. Fed. 2d 1 (2015).

Application of Fourth Amendment to Evidence Seized in Foreign Jurisdiction. 3 A.L.R. Fed. 3d Art. 4 (2016).

Expectation of Right to Privacy in Rental Vehicles Under Fourth Amendment, 27 A.L.R. Fed. 3d Art. 3 (2018).

Ark. L. Notes.

Kirkpatrick, “Jar Wars”: An Examination of the Legality of Drug Testing in the Employment Decision, etc., 1987 Ark. L. Notes 25.

Adelman, Towards an Independent State Constitutional Jurisprudence II — Arkansas Supreme Court rules state constitution requires warning prior to “knock and talk” searches, 2004 Arkansas L. Notes 1.

Ark. L. Rev.

Constitutional Law — Admissibility of Illegally Obtained Evidence in a Civil Trial, 17 Ark. L. Rev. 207.

Casenote, Hoay v. State: A Look at the United States Supreme Court's and Arkansas's Misapplication of the Exclusionary Rule and Good Faith Exception, 57 Ark. L. Rev. 993.

The New Judicial Federalism Takes Root in Arkansas, 58 Ark. L. Rev. 883.

Linda K. Bird, Case Note: State v. Tyson: Rendering Rule 13.2(c)(iii) of the Arkansas Rules of Criminal Procedure Ineffective at Guarding the Privacy Interests It Historically Protected, 67 Ark. L. Rev. 411 (2014).

Jason Paul Bailey, Comment: Are Landlords the New Police? The Unintended Consequences of the Arkansas Residential Landlord-Tenant Act's Access Provision, 67 Ark. L. Rev. 627 (2014).

Philip A. Elmore, Comment: “That's Just Pillow Talk, Baby”: Spousal Privileges and the Right to Privacy in Arkansas, 67 Ark. L. Rev. 961 (2014).

C.J.S. 16C C.J.S., Constitutional Law, § 1622 et seq.

U. Ark. Little Rock L.J.

Notes, Criminal Procedure — Exclusionary Rule — No Good Faith Exception to the Arkansas Rules of Criminal Procedure — Yet, 8 U. Ark. Little Rock L.J. 513.

Note, Criminal Procedure — Good Faith, Big Brother, and You: The United States Supreme Court's Latest Good Faith Exception to the Fourth AmendmentExclusionary Rule. Arizona v. Evans, 514 U.S. 1 (1995), 18 U. Ark. Little Rock L.J. 533.

U. Ark. Little Rock. L. Rev.

Note: Constitutional Law — Privacy and Equal Protection — Arkansas Joins Other States in a Revival of State Constitutions as Guardians of Individual Rights, Establishing New Protections for Arkansas Gays and Lesbians, Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), 25 U. Ark. Little Rock L. Rev. 681.

Comment, Arkansas's Entry into the Not-So-New Judicial Federalism, 25 U. Ark. Little Rock L. Rev. 835.

Annual Survey of Case Law, Criminal Law, 28 U. Ark. Little Rock L. Rev. 703.

Justice Robert L. Brown, A Judicial Retrospective: Significant Decisions by the Arkansas Supreme Court From 1991 Through 2011, 34 U. Ark. Little Rock L. Rev. 219 (2012).

Ben Honaker, Note: Constitutional Law—Fourth Amendment Search and Seizure—We've Got Ourselves in a Pickle: The Supreme Court of Arkansas's Recent Expansion of Fourth Amendment Rights May Have Unintended Consequences, Pickle v. State, 2015 Ark. 286, 39 U. Ark. Little Rock L. Rev. 299 (2017).

Case Notes

In General.

This section is a limitation upon the power of government and not an authorization for the issuance of search warrants. Grimmett v. State, 251 Ark. 270a, 476 S.W.2d 217 (1972).

The term “unreasonable search” in this section is interpreted by Arkansas courts in the same manner that the Supreme Court interprets that term in U.S. Const. Amend. 4. Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995).

Construction.

Supreme Court of Arkansas interprets this section in the same manner as the United States Supreme Court interprets the Fourth Amendment. Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801, cert. denied, 520 U.S. 1252, 117 S. Ct. 2411, 138 L. Ed. 2d 176 (1997).

Although the search and seizure language of Ark. Const., Art. 2, § 15 is very similar to the words of the Fourth Amendment, Arkansas courts are not bound by the federal interpretation of the Fourth Amendment when interpreting Arkansas law. State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004).

Term “unreasonable search,” as employed in this section, is to be interpreted in the same manner as the United States Supreme Court interprets the Fourth Amendment. McDonald v. State, 92 Ark. App. 1, 210 S.W.3d 915 (2005).

Canine Sniff.

Trial court erred in denying defendant's motion to suppress marijuana seized from the trunk of a rental car that he was driving where a deputy lacked reasonable suspicion to detain him past the end of a traffic stop to conduct a canine sniff of the car; the legitimate purpose of the traffic stop ended when the deputy issued defendant a warning for following too closely, announced that he was not issuing a citation for driving with a suspended license, and returned the materials to defendant without taking further action. Enriquez v. State, 97 Ark. App. 62, 244 S.W.3d 696 (2006).

Argument that a canine sniff constituted a search under this section was not addressed because it had not been sufficiently developed. State v. Harris, 372 Ark. 492, 277 S.W.3d 568 (2008).

Circuit court erred in concluding that a positive alert from a canine sniff standing alone did not constitute probable cause to subsequently search a vehicle, given testimony from the dog's handler as to his training and reliability. Therefore, seizure of evidence from the car did not violate U.S. Const. Amend. IV. State v. Thompson, 2010 Ark. 294, 377 S.W.3d 207 (2010).

Drug dog arrived less than 23 minutes after the officer had concluded his initial search, and the officer made diligent efforts to secure the drug dog. Under these circumstances, it was reasonable for the officer to await the arrival of the drug dog so that the officer could establish the legality of defendant's conduct, and the brief delay was reasonable. Wilson v. State, 2014 Ark. 8 (2014).

Community Caretaking.

Officer illegally seized defendant, given that there were no facts that could have led a reasonable person to think that either defendant or his passenger was in immediate need of medical assistance or was in imminent danger; the vomiting passenger showed no signs of having anything more serious than an upset stomach, and nothing indicated that defendant could not provide whatever assistance the passenger needed. Meeks v. State, 2016 Ark. App. 9, 479 S.W.3d 559 (2016).

Curtilage.

Evidence was not suppressed because defendant's federal and state constitutional rights were not violated during a knock and talk when officers came to his residence to investigate copper thefts; while a circle drive was within the curtilage of the home, defendant had no reasonable expectation of privacy in the circle drive. Jones v. State, 2014 Ark. App. 649, 448 S.W.3d 214 (2014).

DNA Collection.

Supreme Court of Arkansas adopted the totality of the circumstances test and determined that the DNA collection statute did not constitute an unreasonable search and seizure as a convicted felon has a diminished expectation of privacy in the penal context, a blood test does not constitute an unduly extensive imposition on an individual's privacy and bodily integrity, and the state's interest in solving crimes is substantial. Polston v. State, 360 Ark. 317, 201 S.W.3d 406 (2005).

Illegal Seizure.

Police officers did not have a reasonable suspicion to stop and search defendant where no crime was being investigated at the time the blue lights were engaged, nothing indicated that defendant had an unlawful intent in possessing the weapon while at a store, and defendant had walked two miles away from the store at the time of the encounter. Taff v. State, 2018 Ark. App. 488, 562 S.W.3d 877 (2018).

Investigatory Stop.

Defendant's motion to suppress evidence was properly denied in a drug case because an officer had authority to continue a detention under Ark. R. Crim. P. 3.1; there was reasonable suspicion under Ark. R. Crim. P. 2.1 based on defendant's nervousness, his unusual travel plans, and the strong smell of fabric softener in his car. Ayala v. State, 90 Ark. App. 13, 203 S.W.3d 659 (2005).

Motion to suppress evidence was improperly granted because, where police had known an informant to give reliable information in the past, and accurate information was received from the informant about defendant and his vehicle, officers had specific, particularized, and articulable reasons for thinking that defendant was involved in criminal activity, which justified a stop under Ark. R. Crim. P. 3.1. Because the officers had reasonable suspicion to stop and detain the vehicle, any pretext on the part of the officers was irrelevant; moreover, the officers did not need any additional reasonable suspicion to justify a canine sniff, which was not a search under the Fourth Amendment. State v. Harris, 372 Ark. 492, 277 S.W.3d 568 (2008).

In a drug case, a motion to suppress should have been granted because a canine sniff was conducted on a vehicle without reasonable suspicion for a continued detention after a traffic stop. Defendant picked up a package that had a strong odor of dryer sheets, the package contained a California return address and was addressed to someone besides defendant, a package with the same return address had been previously intercepted by the post office, neither of the names on the package were associated with the respective street addresses, and defendant did not sign for the package with his own name. However, these facts did not give rise to anything more than bare suspicion. MacKintrush v. State, 2016 Ark. 14, 479 S.W.3d 14 (2016).

Knock and Announce.

Knock-and-announce principles protect even those with limited privacy interests, like parolees. Lane v. State, 2017 Ark. 34, 513 S.W.3d 230, cert. denied, 137 S. Ct. 2222, 198 L. Ed. 2d 665 (2017).

Because officers failed to knock and announce their presence before entering defendant parolee's hotel room and because there was no reasonable basis for their failure to knock and announce, the officers' conduct violated defendant's protection from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Ark. Const., Art. 2, § 15. The exclusionary rule did not apply to the violation, however. Lane v. State, 2017 Ark. 34, 513 S.W.3d 230, cert. denied, 137 S. Ct. 2222, 198 L. Ed. 2d 665 (2017).

The United States Supreme Court has held that under the Fourth Amendment to the United States Constitution the exclusionary rule does not apply to knock-and-announce violations by police. Likewise, the Supreme Court of Arkansas holds that in the case of parolees, the exclusionary rule does not apply to knock-and-announce violations under Ark. Const., Art. 2, § 15. Exclusion is not warranted because the relationship between discovery of the evidence and the constitutional violation is sufficiently attenuated. Lane v. State, 2017 Ark. 34, 513 S.W.3d 230, cert. denied, 137 S. Ct. 2222, 198 L. Ed. 2d 665 (2017).

Knock and Talk.

In a case where officers were conducting a knock and talk, based on an officer's history of investigating copper theft cases, the presence of copper wires in a burned-out black spot, and the open storage of copper wires that had lengths equal to the lengths of the copper wires known to police to have been stolen from electricity poles, the officer had probable cause to believe the copper in plain view was evidence in the copper thefts he was investigating. Jones v. State, 2014 Ark. App. 649, 448 S.W.3d 214 (2014).

Private Citizens.

The restraints of this section are upon the state and its agents and not upon private individuals and had no application to the act of a hospital laboratory technician in taking a sample of blood from a motor vehicle operator charged with involuntary manslaughter to test its alcoholic content. Walker v. State, 244 Ark. 1150, 429 S.W.2d 121 (1968).

Where a deputy sheriff gave the names of several suspects to the owner of a burglarized store, a subsequent search and seizure by the store owner of the defendant's automobile, which contained many of the stolen items, was not unconstitutional under this section since the store owner was neither an agent of the government nor was his independent search and seizure instigated, encouraged, or participated in by the police. Smith v. State, 267 Ark. 1138, 594 S.W.2d 255 (1980).

Trial court correctly determined that the wife was not acting as a state actor at the time she searched her husband's belongings; further, defendant's argument that his wife lacked authority to turn the items she discovered over to the authorities was without merit. Bruce v. State, 367 Ark. 497, 241 S.W.3d 728 (2006).

Public Places.

The constitutional guarantee against search and seizure does not apply to entry into a public place. Gerald v. State, 237 Ark. 287, 372 S.W.2d 635 (1963).

Constitutional provisions against unreasonable search and seizure afford no shield to defendant as to articles removed from truck parked in the open, the objects in the truck being visible without committing trespass. Williams v. State, 237 Ark. 569, 375 S.W.2d 375 (1964), appeal dismissed and cert. denied, 381 U.S. 276, 85 S. Ct. 1457, 14 L. Ed. 2d 431 (1965).

Trial court properly denied defendants' motion to suppress evidence seized from their garbage container outside the curtilage of their home; defendants exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment and state constitution protection. Rikard v. State, 354 Ark. 345, 123 S.W.3d 114 (2003).

Reasonableness.

The common-law “knock and announce” principle forms a part of the reasonableness inquiry under the Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995).

There was no violation of defendants' Fourth Amendment rights when officers drove up the driveway to their house looking for a probationer in the area, discovered marijuana growing in plain view, and obtained a search warrant as a result; further, under § 16-82-201(a), the argument that the warrant was issued by a magistrate in a separate county was of no merit. Lancaster v. State, 81 Ark. App. 427, 105 S.W.3d 365 (2003).

In defendant's drug case, a court properly denied defendant's motion to suppress evidence where the door entered by officer could not be locked, there was no screening around the area, and one could walk between the wooden posts; furthermore, the trailer door, not the door on the outside of what the officers described as the carport, was the door that was approached and knocked upon when desiring entry into the trailer. Loy v. State, 88 Ark. App. 91, 195 S.W.3d 370 (2004).

Trial court erred in denying defendant's motion to suppress where probation officers were not acting in good faith when they went to defendant's home on a “routine visit” as defendant's husband's probation had expired six months before and no evidence existed that defendant consented to a search of her home once the probation officers were inside the home. Bogard v. State, 88 Ark. App. 214, 197 S.W.3d 1 (2004).

Trial court did not err in denying defendant's motion to suppress audio and video recordings of cocaine deliveries at a suspended sentence revocation proceeding because defendant had invited the confidential informant into defendant's home for the purpose of conducting illegal business; it was not reasonable for defendant to believe that the person to whom defendant sold cocaine would not share the information with others. Sherman v. State, 2009 Ark. 275, 308 S.W.3d 614 (2009).

Motorist's complaint brought under the Arkansas Civil Rights Act, § 16-123-101 et seq., alleging that county officers were without jurisdiction to set up a roadblock and that the motorist's subsequent stop, detention, and arrest violated this section, was properly dismissed because the motorist failed to state a claim where the complaint did not assert that the officers' actions were unreasonable. Wade v. Ferguson, 2009 Ark. 618 (2009).

Records.

The state may compel corporations doing business with the state to produce books for investigation in determining that the state laws have been complied with, and the power extends to the production of books and papers kept outside the state. Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S. Ct. 370, 53 L. Ed. 530 (1909).

Statute giving commission power to conduct an examination of the books, records, documents, and other papers as it desires without search warrants is unconstitutional. Smith v. Faubus, 230 Ark. 831, 327 S.W.2d 562 (1959).

In a business where there is a legitimate public interest and close regulation, such as the distribution of drugs, a procedure for the issuance of a warrant prior to an administrative inspection is not constitutionally required. Hosto v. Brickell, 265 Ark. 147, 577 S.W.2d 401 (1979).

Reliability of Informant.

In a possession of methamphetamine case, denial of defendant's motion to suppress the seized evidence was proper as there were sufficient facts to support the reliability of the informant: he was identifiable and therefore subject to prosecution for making a false report, the investigator interviewed the informant personally for over an hour in order to determine his reliability, the information was based on personal knowledge and observation of the informant, observation which was verified again by the investigator during the surveillance of defendant and just prior to his arrest, and the investigator testified that he was able to corroborate information that the informant provided based on narcotics investigations and intelligence as well as with his own personal knowledge. Weatherford v. State, 93 Ark. App. 30, 216 S.W.3d 150 (2005).

Roadblocks.

A warrant need not be issued prior to conducting a fixed roadblock. Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801, cert. denied, 520 U.S. 1252, 117 S. Ct. 2411, 138 L. Ed. 2d 176 (1997).

Roadblock was a reasonable seizure under this section, and the trial court did not err in refusing to suppress the evidence obtained against defendant at the roadblock where there was no profiling of vehicles, every vehicle was stopped, and every fifth vehicle was detained for a more detailed check not lasting more than two minutes. Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801, cert. denied, 520 U.S. 1252, 117 S. Ct. 2411, 138 L. Ed. 2d 176 (1997).

There was no evidence that a sobriety checkpoint was carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers, as required by the Fourth Amendment. Without suspicion of individualized criminal conduct, the seizure of defendant through the checkpoint stop was unreasonable and any evidence obtained as a result of the checkpoint should have been suppressed. The field officers exercised unfettered discretion in establishing and conducting the checkpoint, and the supervisors were not notified of the checkpoint until after it had been performed. Whalen v. State, 2016 Ark. 343, 500 S.W.3d 710 (2016).

Standing.

Defendant lacked standing under the Fourth Amendment because he failed to provide proof that the package was addressed to him; at best, the name on the package was an alias involved in a criminal scheme. Duck v. State, 346 Ark. 148, 61 S.W.3d 135 (2001).

Defendant lacked standing to challenge the search of the murder victim's home because his role as occupant terminated before the death of the victim, and defendant made no showing that he had been an “overnight guest” because defendant told officers that he had gone to the apartment Sunday morning and found the victim. Dunn v. State, 371 Ark. 140, 264 S.W.3d 504 (2007).

Suppression Denied.

Trial court did not err in denying defendant's motion to suppress statements she made to police during their investigation of her landlord's death where the officers made it reasonably clear to defendant that she was not legally obligated to furnish information or otherwise cooperate; the officers made it clear that she could go to the sheriff's office at her own convenience. Wilson v. State, 364 Ark. 550, 222 S.W.3d 171 (2006).

Where the sheriff, relying upon a mandate from the court, executed an Order of Immediate Possession on defendant and was of the understanding that he had complied with § 18-60-310, based on the totality of the circumstance, suppressing the evidence would not serve the remedial purposes of the exclusionary rule. Deshazo v. State, 95 Ark. App. 398, 237 S.W.3d 493 (2006).

Traffic Stops.

Defendant was entitled to suppress evidence of drugs seized from his car when police detained him after the legitimate purpose of the traffic stop ended. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004).

Pretextual conduct by police officer in stopping defendant in order to search his vehicle for contraband did not require the trial court to grant defendant's suppression motion; because the officer had probable cause to stop defendant for a traffic violation, the consensual search that took place thereafter was proper. Lawson v. State, 89 Ark. App. 77, 200 S.W.3d 459 (2004).

Defendant's convictions for possession of drug paraphernalia with intent to manufacture methamphetamine and possession of pseudoephedrine were proper where the patrol officer initiated the traffic stop after watching defendant commit a traffic violation, which was failing to stop at a stop sign. Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006).

This section did not support invalidation of a search where a valid traffic stop was made by a police officer who suspected other criminal activity; thus, defendant's argument that the stop was pretextual was based on the erroneous premise that pretextual stops were impermissible, and there were fact justifying the stop of defendant's car, including his erratic driving and the officer's knowledge that defendant was driving without a valid driver's license. Casey v. State, 97 Ark. App. 1, 242 S.W.3d 627 (2006).

Trial court did not err in denying defendant's motion to suppress on the basis that a traffic stop was not completed at the time that a canine sniff was conducted where the testimony of the arresting officer revealed that although the arresting officer made no specific request to do so, defendant encouraged the arresting officer to “go ahead and use your dog” well within the time limits of the traffic stop. Davis v. State, 99 Ark. App. 173, 258 S.W.3d 401 (2007).

Based on evidence seized from appellant's car following a traffic stop, he was convicted of possession of cocaine, simultaneous possession of drugs and firearms, and possession of a firearm by a felon; counsel was not ineffective for failing to move to suppress the evidence on the basis that appellant had not been tried on charges of speeding and driving on a suspended license. Whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation which the officer believed to have occurred. White v. State, 2009 Ark. 225 (2009).

Evidence should have been suppressed in a drug case because a state trooper's post-warning questioning of defendant was not a consensual police-citizen encounter since a reasonable person would not have felt like he could have left without answering; since there was no reasonable suspicion under Ark. R. Crim. P. 3.1, an illegal detention resulted. Bedsole v. State, 104 Ark. App. 253, 290 S.W.3d 607 (2009).

Evidence seized upon defendant's arrest did not violate his rights under the U.S. Constitution, or this section of the Arkansas Constitution, or Ark. R. Crim. P. 3.1 and 4.1, because defendant's erratic driving in a high crime area provided a reasonable suspicion to stop him, and defendant's attempts to hide his identity from the officer provided probable cause for his arrest. Mosley v. State, 2009 Ark. App. 799, 370 S.W.3d 273 (2009).

Evidence obtained in a stop of defendant's vehicle for speeding on the interstate should have been suppressed under this section of Article 2 because, pursuant to § 12-8-106, a municipal police department did not have the authority to make a selective-traffic enforcement type of traffic stop on the interstate. McKim v. State, 2009 Ark. App. 834 (2009).

Police officer engaged in racial profiling prohibited by state statute, the state constitution, the U.S. Constitution, and the city's written policy, and the officer also illegally seized one of the plaintiffs, thereby violating U.S. Const., Amend. IV and the state constitution; the police chief, who supervised the officer and ran the police department, was deliberately indifferent to ongoing and systemic racial profiling of which he was aware and municipal liability was imposed on the city as it permitted the officer to establish and to carry out a custom and practice of engaging in racial profiling. The officer's true objective was not to enforce traffic laws prohibiting people from driving with their vision obstructed or other minor infractions; rather, the neutral traffic laws were used as a pretext for harassing Hispanics (whether here legally or illegally), for obtaining money through fines and towing charges for the financially troubled city, and to provide an incentive for Hispanics to move out of the area—clearly illegitimate objectives. Giron v. City of Alexander, 693 F. Supp. 2d 904 (E.D. Ark. 2010).

It was error to grant a motion to suppress drug evidence obtained in a traffic stop on the ground that the stop for a traffic violation was a pretext for searching for drugs because the pretextual stop was not impermissible under either the federal or Arkansas Constitution and, thus, did not invalidate the otherwise lawful stop of the vehicle. State v. Mancia-Sandoval, 2010 Ark. 134, 361 S.W.3d 835 (2010).

Trial court did not err in denying appellant's petition for postconviction relief under Ark. R. Crim. P. 37.1 because appellant did not establish that his trial counsel was ineffective for failing to preserve the issue of whether this section required an officer requesting consent for a search to advise the driver of an automobile that he or she had the right to refuse to consent to the search, and under the circumstances and precedent as existed at the time of appellant's trial, counsel's conduct did not fall outside the wide range of reasonable professional assistance since counsel was not ineffective simply because he did not raise an argument that would have been largely against established precedent and would have required exceptionally thoughtful and extensive analysis; good cause for an extension to vehicles of the rule that officers who utilize the knock-and-talk procedure must inform a home dweller that he or she has the right to refuse consent to the search will require something more than the mere recitation of Ark. Const., Art. 2, § 15. Jones v. State, 2010 Ark. 470 (2010).

As the evidence showed that a deputy sheriff had probable cause to believe that defendant's vehicle had violated § 27-51-301 by crossing the center line by three feet, the deputy's traffic stop was constitutional. Webb v. State, 2011 Ark. 430, 385 S.W.3d 152 (2011).

Warrantless Arrest.

Since the possession of an unregistered still is a felony, an officer may arrest without a warrant where there are reasonable grounds to believe that person arrested possesses such still. Knight v. State, 171 Ark. 882, 286 S.W. 1013 (1926).

A public officer may enter a public place to make an arrest upon probable cause that an unlawful act is being committed there as the protection of the searches and seizures clause extends only to dwellings and other such private places. Albright v. Muncrief, 206 Ark. 319, 176 S.W.2d 426 (1944).

While police officers in one locality are justified in acting upon messages received from officers in another locality, police officers could not rely solely upon hearsay contained in messages from the border control as probable cause for arresting defendant and searching his automobile. Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978).

It is doubtful that defendant would have been arrested simply for traveling 40 miles per hour in a 35-mile zone and possessing a corroding roofing hatchet that had clearly been in his vehicle for quite some time, therefore, the search and seizure was pretextual and was properly suppressed. State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526 (2000), rev'd, 532 U.S. 769, 121 S. Ct. 1876, 149 L. Ed. 2d 994 (2001).

Police officer had authority to arrest defendant because defendant was seen speeding away from the scene of an attempted robbery and his description matched that given by an eyewitness to the crime; hence, there was probable cause to arrest defendant and to search his car, where the wallet of the other robbery perpetrator was found, and defendant's pretrial motion to suppress all evidence obtained after his arrest was properly denied. Martinez v. State, 352 Ark. 135, 98 S.W.3d 827 (2003).

Trial court did not err in finding that defendant's arrest was valid; given that defendant was the last person seen at the crime scene, defendant's girlfriend gave police the murder weapon, and defendant had access to a gun, the police had probable cause to arrest defendant without a warrant pursuant to Ark. R. Crim. P. 4.1. Winston v. State, 355 Ark. 11, 131 S.W.3d 333 (2003).

Motion to suppress evidence was properly denied based on an allegedly illegal arrest because, where officers saw two defendants enter two retail stores and purchase pseudoephedrine, there was probable cause to arrest them under Ark. R. Crim. P. 4.1(a)(iii); the officers suspected that defendants were over the legal limit due to their purchases. Champlin v. State, 98 Ark. App. 305, 254 S.W.3d 780 (2007).

Where a confidential informant appeared at a drug dealer's home to buy drugs, the drug dealer's wife contacted defendant, and defendant immediately left his home carrying a package, drove to the dealer's home, entered the home without knocking, and left a short time thereafter without the package, the police had probable cause to effect a warrantless arrest of defendant because the evidence essentially established a call by a known drug dealer requesting the delivery of narcotics from a supplier, immediate movement by a known drug supplier who was the suspected supplier, direct travel by that supplier to the source of the supply request, and the apparent delivery of a package. While this proof may not have been sufficient to convict defendant, it provided sufficient probable cause to make an arrest, and a search of defendant incident to that arrest was proper. Pullan v. State, 104 Ark. App. 78, 289 S.W.3d 180 (2008).

Summary judgment was granted on plaintiff's Arkansas Civil Rights Act claims alleging unreasonable seizure and an equal protection violation because there was probable cause to arrest plaintiff for a violation of § 5-60-125, and plaintiff failed to provide evidence establishing discriminatory effect or purpose on the part of the officers. Ratliff v. City of Shannon Hills, 52 F. Supp. 3d 904 (E.D. Ark. 2014).

Trial court did not err in finding that defendant's arrest was not pretextual; based on the arresting officer's testimony, it was reasonable to conclude that even if defendant had not been suspected of robbery, he would have been arrested on an outstanding misdemeanor warrant. Echols v. State, 2015 Ark. App. 304, 462 S.W.3d 352 (2015).

—Pretextual.

The U.S. Supreme Court has held that an arrest may not be used as a pretext to search for evidence. Pretext is a matter of the arresting officer's intent, and the whole issue of pretext turns on the totality of the facts and circumstances surrounding the arrest. State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526 (2000), rev'd, 532 U.S. 769, 121 S. Ct. 1876, 149 L. Ed. 2d 994 (2001).

If an initial arrest is simply a pretext to search, the search cannot stand, and a pretextual arrest exists if an officer would not have gone to a defendant's home to arrest him otherwise. Henley v. State, 95 Ark. App. 108, 234 S.W.3d 316 (2006).

Warrantless Search.

A search without a warrant is not indictable since not expressly prohibited; however entry of a dwelling house is indictable at common law, but such indictment must show forcible entry. State v. Leathers, 31 Ark. 44 (1876).

Not all searches and seizures without a warrant, but only which are unreasonable, are prohibited. Mann v. Heber Springs, 239 Ark. 969, 395 S.W.2d 557 (1965); Wickliffe v. State, 258 Ark. 544, 527 S.W.2d 640 (1975).

A wooded area a mile away from defendant's father's house, even though it belonged to the father, cannot be regarded as appurtenant to his house or curtilage and may be searched without a warrant. Wyss v. State, 262 Ark. 502, 558 S.W.2d 141 (1977).

Trooper made a traffic stop because he had probable cause to believe that defendants' vehicle had violated a traffic law, namely following too closely; thus, even in the absence of reasonable suspicion and without violating the Fourth Amendment, the trooper, with his police dog at the trooper's immediate disposal, could perform a permissible canine sniff, and once the dog alerted, that constituted probable cause for the trooper to search defendants' vehicle. Miller v. State, 81 Ark. App. 401, 102 S.W.3d 896 (2003).

Trial court erred in denying defendant's motion to suppress where the officer conceded at the suppression hearing that he never advised defendant of his right to refuse to consent to the search such that the search of the house was invalid; under Ark. Const. art. 2, § 15, an officer who utilizes the knock-and-talk technique is required to inform the home dweller that he or she has the right to refuse to consent to the search. Carson v. State, 363 Ark. 158, 211 S.W.3d 527 (2005).

Failure of officers to advise a person that he or she has the right to refuse consent to a search of his or her home violates the right against warrantless intrusions into the home; however, such holding does not extend to the search of a vehicle. Welch v. State, 364 Ark. 324, 219 S.W.3d 156 (2005).

Search of defendant's vehicle was not in violation of the Arkansas Constitution because the knock-and-talk procedure, during which officers were required to inform a home dweller that he or she had the right to refuse consent to a search, did not apply to the search of a vehicle; hence, defendant's motion to suppress evidence was properly denied because defendant consented to the search. Welch v. State, 364 Ark. 324, 219 S.W.3d 156 (2005).

Trial court properly denied defendant's motion to suppress a crack pipe that was found in a vehicle in which he was a passenger because the officer's initial approach of the vehicle was valid under Ark. R. Crim. P. 2.2; although defendant might have been illegally seized when the officer ordered him out of the vehicle, the driver of the vehicle gave consent to the vehicle search independent of any violation of defendant's rights, and defendant lacked standing to challenge the vehicle search. Swan v. State, 94 Ark. App. 115, 226 S.W.3d 6 (2006).

One of the established exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent and that a co-occupant has the authority to consent to a search; thus, the search of the vehicle's exterior was within the scope of the consent granted by the driver, and the police officer's observations of modifications beneath the bed of the truck indicative of a false compartment for the concealment of contraband gave rise to probable cause to perform the more intrusive search of drilling holes in the truck's bed. Turner v. State, 94 Ark. App. 259, 229 S.W.3d 588 (2006).

Consent-in-advance clauses that are signed by parolees or probationers are not constitutionally infirm as long as the consent agreement meets certain criteria; in order to support a warrantless search, the form must amount to a consent to search, and the search must be conducted in accordance with the terms of the consent granted. Henley v. State, 95 Ark. App. 108, 234 S.W.3d 316 (2006).

Officer drove past a closed gas station where he observed two vehicles in the parking lot, there were no signs of criminal activity, no moving violations, nor any defective equipment on the vehicles; nonetheless, he stopped one vehicle, questioned the driver, asked him to get out of the car, and seized marijuana from the vehicle and defendant's person. The trial court erred by denying defendant's motion to suppress the evidence, because the police encounter was illegal; there was no evidence to suggest that community caretaking was the reason for the encounter. Dosia v. State, 2009 Ark. App. 429, 318 S.W.3d 583 (2009).

After defendant's arrest for driving without a valid driver's licence, an officer saw marijuana seeds under the driver's seat, detected a faint odor of marijuana in the vehicle, and noticed the gas tank exhibited signs of tampering, typical of drug-smuggling; the officer gleaned probable cause to search the vehicle for narcotics as he waited for the wrecker to tow the vehicle to impound. Lopez v. State, 2009 Ark. App. 750 (2009).

Search incident to arrest was proper under this section because probable cause supported defendant's DWI arrest in that a restaurant manager had reported that defendant was intoxicated, the officer discovered defendant sitting in his vehicle, with the keys in the ignition, and defendant failed two field sobriety tests. Stewart v. State, 2010 Ark. App. 9, 373 S.W.3d 387 (2010).

Trial court properly denied defendant's motion to suppress marijuana taken from defendant's property, as defendant did not have a reasonable expectation of privacy in the area from which an officer observed the marijuana in plain sight because the area would have been used by anyone responding to defendant's signs advertising that defendant had pigs for sale. Percefull v. State, 2011 Ark. App. 378, 383 S.W.3d 905 (2011).

Trial court's finding that a deputy sheriff had defendant's consent to a pat-down search after a traffic stop was not clearly erroneous. Though defendant testified that he never consented to the search, the trial court was entitled to find the contrary testimony of the deputy to be more credible, and there was no evidence that defendant was coerced into consenting. Webb v. State, 2011 Ark. 430, 385 S.W.3d 152 (2011).

—Expectation of Privacy.

The defendant did not have a legitimate expectation of privacy in a deer stand and, therefore, a search of the deer stand by a wildlife officer was proper where a person standing inside the box was exposed to the public's view, there was no evidence that the defendant used the stand to engage in private activity other than eating meals or that he attempted to shield his activities from the public, and the defendant employed no apparent means of restricting access to the deer stand. Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999).

Defendant did not have standing to challenge the search and seizure or knock-and-talk procedures orchestrated by police officers; defendant stated several times on the stand that the trailer being searched was not his home, and he offered no proof that he owned, leased, or maintained any control over the trailer. Gaylord v. State, 354 Ark. 511, 127 S.W.3d 507 (2003).

Defendant's motion to suppress evidence was properly denied where, given the testimony of the police officers, the items initially seen by the officers were outside the shed and porch of the mobile home; an expectation of privacy in driveways and walkways was not generally considered reasonable. Russell v. State, 85 Ark. App. 468, 157 S.W.3d 561 (2004).

Officer's observation of defendant's truck and the air compressor in it in the backyard did not amount to a search because those items were in plain view; the officer testified that he could see defendant's truck from the road, and he made those observations from a lawful vantage point. Defendant had no reasonable expectation of privacy in the road leading to his residence, nor did he have a reasonable expectation of privacy in his driveway. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007).

—Grounds.

Automobile may be searched without a warrant where there is reasonable or probable cause for the belief of the officers that contents of automobile offend against the law. Mann v. Heber Springs, 239 Ark. 969, 395 S.W.2d 557 (1965).

Where an officer had reasonable grounds to believe from a confidential source of information that the defendant was returning from Mexico in a red and white Rambler station wagon with a large quantity of illegal drugs and the officer stopped defendant, searched the automobile, and found the drugs, such search was reasonable. Tygart v. State, 248 Ark. 125, 451 S.W.2d 225, cert. denied, 400 U.S. 807, 91 S. Ct. 50, 27 L. Ed. 2d 36 (1970).

Where a police officer had been given a description of a car and occupants suspected of shoplifting and stopped defendant's car on the basis thereof, observing bags of merchandise fitting the description of the stolen articles in plain view on the floor of the car, and forthwith seized the car and the stolen articles, the warrantless search and seizure were reasonable and did not violate defendant's constitutional rights, although the defendant was not arrested until sometime after the seizure. Cox v. State, 254 Ark. 1, 491 S.W.2d 802, cert. denied, 414 U.S. 923, 94 S. Ct. 230, 38 L. Ed. 2d 157 (1973).

Probable cause is not sufficient to justify a warrantless seizure of an automobile when not incident to arrest; there must also be the existence of exigent circumstances. Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975).

Police officers, having recognized an axe in the bed of defendant's truck as stolen property, were justified in also taking a crowbar and toolbox in view of the report that tools in addition to the axe had been stolen. Wyss v. State, 262 Ark. 502, 558 S.W.2d 141 (1977).

The circumstances excusing a search without a warrant must be exigent; these circumstances must be jealously and carefully drawn and must involve danger to the officers or risk of loss or destruction of evidence. Moore v. State, 268 Ark. 171, 594 S.W.2d 245 (1980).

If police officers have not developed a reasonable suspicion of defendant based on the reliability of an informant, seizures resulting from the stop of a car cannot stand and neither can the forfeitures. Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988).

Although the searching officer testified that defendant did not present a danger to that officer, because defendant was in the custody of a fellow officer, it was still possible that defendant could have broken away from police and had access to any weapons in the truck, moreover, defendant was stopped because his vehicle met the description of the police broadcast regarding shots being fired from the described vehicle; thus, the trial court's decision denying defendant's motion to suppress was not clearly erroneous. Saulsberry v. State, 81 Ark. App. 419, 102 S.W.3d 907 (2003).

Motion to suppress evidence was properly denied in a drug case where the evidence showed that a search based on a pretextual stop was valid; the officer had probable cause for the stop since the vehicle was speeding, consent to search was given by the registered owner, and the consent was not limited to exclude containers found inside the vehicle. Flores v. State, 87 Ark. App. 327, 194 S.W.3d 207 (2004).

Trial court did not err in denying defendant's motion to suppress marijuana seized after a search of his vehicle where the officer developed a reasonable suspicion that defendant was committing a felony based on defendant's unusual travel plans and exhibited nervousness, and the officer's detection of a strong odor of fabric sheets, as opposed to air freshener, which the officer testified were often used to mask the odor of illegal controlled substances; further, the presence of a very large suitcase was suspicious in light of a car-rental agreement lasting only four days. Ayala v. State, 90 Ark. App. 13, 203 S.W.3d 659 (2005).

Evidence present outside defendant's apartment, including the location of the body, the “bloody-drag trail,” and blood visible on the floor inside the apartment, established probable cause to search defendant's apartment; thus, even if police had not illegally entered the apartment, they would have later entered under a valid search warrant and inevitably discovered the alleged tainted evidence. Newton v. State, 366 Ark. 587, 237 S.W.3d 451 (2006).

—Incident to Arrest.

Where a substantially contemporaneous lawful arrest and a search without warrant are made, a still obtained in the search was not taken in violation of the guaranty against lawful search. Knight v. State, 171 Ark. 882, 286 S.W. 1013 (1926).

The search and seizure in question cannot be said to be unreasonable under the constitutional prohibition where the arrest, being made for offenses committed in the presence of the arresting officers, was lawful and the search was merely incidental to it. Williams v. State, 230 Ark. 574, 323 S.W.2d 922 (1959).

Where the defendant was arrested while in an automobile for which police were searching because of fraudulent checks given in its purchase and a search of the automobile revealed a number of articles of property stolen in a recent burglary, police search of defendant after arresting him was reasonable. Ward v. State, 243 Ark. 472, 420 S.W.2d 540 (1967).

The search, by officers seeking four participants in an alleged rape, of a car answering the description of the car alleged to have been involved in the crime and containing three of the alleged participants without a warrant within a few hours following the alleged crime was not unreasonable and evidence obtained thereby was admissible even against the fourth defendant who was not in the car. Scott v. State, 249 Ark. 967, 463 S.W.2d 404 (1971).

A warrantless search and seizure was not unreasonable where police apprehended appellants in truck matching description of vehicle used in escape from scene of robbery, and robbery victim, who was being held hostage in the truck, informed police that one of the appellants had a weapon hidden under the front seat, whereupon the police searched for and seized a pistol. Guffey v. State, 253 Ark. 720, 488 S.W.2d 28 (1972).

Where officer had been notified of suspicious actions of truck near high line poles adjacent to highway and that some of the wires were missing, and when officer arrived at scene defendants drove away in truck and officer saw tree trimmers in the back of truck and took such defendants into custody and had truck towed to a fenced salvage yard and the next day after the arrest the officer removed the tree trimmers, such tree trimming shears were not obtained by illegal search and seizure. Wickliffe v. State, 258 Ark. 544, 527 S.W.2d 640 (1975).

Warrantless search held improper as not incident to arrest. Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975); State v. Osborn, 263 Ark. 554, 566 S.W.2d 139 (1978).

The defendant's rights under this section were not abridged where the defendant was interrogated by police after he had been stopped near the scene of a rape and burglary, which was one of a series of such crimes committed by a man matching the defendant's description, and where his fingerprints were taken, during the course of the interrogation, with the defendant's consent. Loomis v. State, 261 Ark. 803, 551 S.W.2d 546 (1977).

The hatchback area of a station wagon as part of the “passenger compartment” of an automobile was properly part of a search incident to a lawful arrest. Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995).

Trial court properly denied defendant's motion to suppress evidence of methamphetamine that was in his car because the search of defendant's car was clearly permitted as an incident of his arrest on outstanding warrants. McDonald v. State, 92 Ark. App. 1, 210 S.W.3d 915 (2005).

— —Unreasonable.

The search of an entire house without a warrant over the objection of the person arrested on a marijuana charge was unreasonable and was not cured by the absence from the city of a judge who could issue the warrant. Long v. State, 256 Ark. 417, 508 S.W.2d 47 (1974).

Where police officers knew at least 24 hours in advance which vehicle the defendant would be driving and several teams of officers had been able to drive around the slick city streets for two hours prior to apprehending the defendant, the icy streets and below-freezing temperatures did not create exigent circumstances justifying a warrantless search of defendant's car after the car had been secured and the defendant arrested; therefore, the defendant's motion to suppress the contraband found during the search should have been granted. Moore v. State, 268 Ark. 171, 594 S.W.2d 245 (1980).

Drug manufacturing evidence should have been suppressed where officers entered defendant's residence seeking persons named in arrest warrants, which was a search under Ark. R. Crim. P. 10.1; because the person allowing consent was not advised that she could refuse consent, the search violated Ark. R. Crim. P. 11.1(c), the Fourth Amendment, and Ark. Const. art. 2, § 15. Burroughs v. State, 96 Ark. App. 289, 241 S.W.3d 280 (2006).

—Personal Effects.

A toolbox is not a repository of personal effects which may not be searched without a warrant. Wyss v. State, 262 Ark. 502, 558 S.W.2d 141 (1977).

Where police officers conducted a warrantless search of the defendant's car and found contraband in his shaving kit, the defendant's motion to suppress such contraband should have been granted since the automobile had already been secured by the police, the shaving kit was in the exclusive control of the police, and the defendant had a reasonable expectation of privacy in the matter of his personal luggage, including his shaving kit. Moore v. State, 268 Ark. 171, 594 S.W.2d 245 (1980).

—Plain View.

Where police officers obtained evidence by observing men playing cards with money and chips being used in the game and made arrests based on their observations, it was not necessary to conduct a search to uncover evidence and, thus, this provision of the constitution is not applicable. Gerald v. State, 237 Ark. 287, 372 S.W.2d 635 (1963).

Where a screwdriver was removed by an officer from the automobile of a burglary suspect before his arrest and without his consent and the screwdriver was not in plain view of the officer, such seizure was constitutionally unreasonable. Jelinek v. State, 262 Ark. 276, 556 S.W.2d 426 (1977).

Arkansas courts have treated “plain view” as an exception to the warrant requirement. Washington v. State, 42 Ark. App. 188, 856 S.W.2d 631 (1993).

The observation of evidence in plain view is not a search and, therefore, the resulting seizure is not the result of an unreasonable search. Washington v. State, 42 Ark. App. 188, 856 S.W.2d 631 (1993).

The basic test in determining the reasonableness of a seizure under the plain view doctrine is whether the officer had a right to be in the position he was when the objects fell into his plain view. Washington v. State, 42 Ark. App. 188, 856 S.W.2d 631 (1993).

In order for the plain view doctrine to apply three criteria must be met: (1) the initial intrusion was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent. Washington v. State, 42 Ark. App. 188, 856 S.W.2d 631 (1993).

Inadvertent discovery is not a requirement of a warrantless seizure of evidence in plain view. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998).

Police did not violate this section by recording VIN numbers of stolen vehicles located in defendant's driveway; police did not need a warrant because defendant did not have a reasonable expectation of privacy in his driveway and the VIN numbers were in plain view. McDonald v. State, 354 Ark. 216, 119 S.W.3d 41 (2003).

—Unreasonable.

No authority existed for a “knock and search” doctrine holding that, after knocking, it was permissible to begin a warrantless search before anyone came to the door; thus, where police officers began searching residence before defendant was summoned, an illegal search was performed that was prohibited by the state constitution. Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002).

Failure of three task force agents to advise one defendant who answered the door that she had the right to refuse consent to a search of her residence violated both defendants' rights against warrantless intrusions into the home; hence, the court properly granted defendants' motions to suppress the evidence seized during the search. State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004).

In a “knock and talk” procedure whereby police officers went to defendants' residence without sufficient probable cause to obtain a search warrant and ask the first defendant to allow them entry and, after gaining entry, informed her that they were investigating potential criminal activity and requested permission to search, none of the officers informed the second defendant that he had the right to refuse consent to the entry and subsequent search of his home; thus, the trial court should have granted the second defendant's motion to suppress all of the evidence that flowed from that unconstitutional search. Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004).

Under the Fourth Amendment, officers’ warrantless entry into defendant’s residence was not justified by the exigent circumstance that evidence was about to be destroyed; the officers had the opportunity to seek and secure a warrant and it was reasonably foreseeable that the officers’ chosen strategy of approaching defendant’s residence and announcing their presence, only minutes after a controlled delivery had occurred, would create a situation in which defendant would attempt to destroy the evidence. Mann v. State, 357 Ark. 159, 161 S.W.3d 826 (2004), abrogated as stated in State v. Brewster, 2011 Ark. 530, 385 S.W.3d 844 (2011).

Court erred by denying defendant's motion to suppress evidence where defendant did not voluntarily consent to a search of his home and his offer to show officers his artwork was not an invitation to enter his home and conduct a search but, rather, defendant intended to go inside his home and retrieve printed copies of his artwork to bring outside and show the officers; further, there was no break in time or other intervening event between the illegal warrantless entry into defendant's home, his written consent to search the home, and his written statement, thus, the primary taint of the unlawful warrantless entry into the home had not been sufficiently attenuated or purged. Dendy v. State, 93 Ark. App. 281, 218 S.W.3d 322 (2005).

Warrantless nighttime intrusion into defendants' home was improper under Ark. R. Crim. P. 14.3 as there were no exigent circumstances and the forced entry was not a tactic that comported with the Fourth Amendment or Ark. Const., Art. 2, § 15; ample opportunity existed for the police to obtain a warrant. Robbins v. State, 94 Ark. App. 393, 231 S.W.3d 79 (2006).

Trial court erred in denying defendant's motion to suppress evidence where the search of his home after officers smelled a chemical odor did not fall within a “probation exception” to the warrant requirement; defendant's probation agreement outlining his consent to visit and be visited by his “supervising officer” did not amount to a consent-in-advance to search his home. Henley v. State, 95 Ark. App. 108, 234 S.W.3d 316 (2006).

—Waiver.

The constitutional guaranty against search and seizure without warrant may be waived. Williams v. State, 237 Ark. 569, 375 S.W.2d 375 (1964), appeal dismissed and cert. denied, 381 U.S. 276, 85 S. Ct. 1457, 14 L. Ed. 2d 431 (1965).

Where officers, after identifying themselves as officers, were invited into the apartment by one of the appellants and no demand was ever made by her on the officers for a search warrant, the evidence clearly disclosed she waived the right to a search warrant. Dokes v. State, 241 Ark. 720, 409 S.W.2d 827 (1966), cert. denied, 389 U.S. 901, 88 S. Ct. 212, 19 L. Ed. 2d 218 (1967).

This section was not violated by an order of the prosecuting attorney to a bank to appear before him and produce copies of records of a depositor's account where the depositor consented. First Nat'l Bank v. Roberts, 242 Ark. 912, 416 S.W.2d 316 (1967).

If a suspect spontaneously advises investigating officers that evidentiary material is to be found in a given place in his house, the volunteering of such information is tantamount not only to a consent to a search of the house but also to an invitation to the officers to make the search and they are free to act upon it without a search warrant. Haire v. Sarver, 306 F. Supp. 1195 (E.D. Ark. 1969), aff'd, 437 F.2d 1262 (8th Cir.), cert. denied, 404 U.S. 910, 92 S. Ct. 235, 30 L. Ed. 2d 182 (1971).

A warrantless search of a car had no constitutional defects when preceded by voluntary consent. Alexander v. State, 255 Ark. 135, 499 S.W.2d 849 (1973).

The consent of a premises owner to the warrantless search of her home for stolen property was voluntary where the owner signed a consent to search the premises and a waiver of her right to be free from unreasonable searches and seizures, even though the owner was not verbally informed of her right to refuse consent. King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977), overruled in part, State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004).

Scope of vehicle search based on consent did not exceed reasonable bounds. Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000).

There was a lack of apparent authority to justify the government's warrantless search of the defendant's home where the only matters the police officer who received the consent observed were a woman standing in the front yard of the defendant's house, who he may have reasonably believed made a terminated 911 telephone call, and who stated that the defendant was manufacturing a controlled substance in a certain room in the house; however, the search was proper because the woman had actual authority to give consent to a search because she had lived in the defendant's house for an extended period of time and had mutual use of the property. Goodman v. State, 74 Ark. App. 1, 45 S.W.3d 399 (2001).

Warrants.

—Action for Damages.

The procurance of a search warrant against a person, maliciously and without probable cause, will support an action for damages for malicious prosecution. Hardin v. Hight, 106 Ark. 190, 153 S.W. 99 (1913).

—Affidavit.

The failure to raise a constitutional claim concerning the introduction of evidence obtained in a search pursuant to search warrants issued on defective affidavits, regardless of its effect as a waiver of later litigation or review in the state system, would not preclude an inquiry into that claim in a federal habeas corpus proceeding. Frazier v. Roberts, 441 F.2d 1224 (8th Cir. 1971).

An affidavit should speak in factual and not mere conclusory language, for it is the function of the judicial officer, before whom the proceedings are held, to make an independent and neutral determination based upon facts, not conclusions, justifying an intrusion into one's home. State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980).

Where affidavit for search warrant named the police informant but did not state how the informant was acquainted with the affiant so that there were no particular facts presented as to the informant's reliability, the search warrant violated this section. State v. Prue, 272 Ark. 221, 614 S.W.2d 221, cert. denied, 454 U.S. 863, 102 S. Ct. 322, 70 L. Ed. 2d 163 (1981). But see Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983).

Affidavit for the search warrant in which the affiant stated that a confidential informant had revealed that defendant was selling marijuana at his residence, the informant had proven reliable in the past, the informant on two occasions had purchased marijuana from the defendant, the informant had seen marijuana in defendant's bedroom and in defendant's vehicle, and surveillance of defendant's home had disclosed excessive traffic going in and out, including a known dealer in drugs, was sufficient. Jackson v. State, 283 Ark. 301, 675 S.W.2d 820 (1984).

An affidavit with absolutely no reference to a time frame does not provide sufficient information upon which a probable cause determination can be made; accordingly, the issuance of a warrant on such an affidavit violates this section and results in an unreasonable search and seizure. Ulrich v. State, 19 Ark. App. 62, 716 S.W.2d 777 (1986).

Trial court erred in denying defendant’s motion to suppress where the affidavit for the search warrant noted that a confidential informant had observed the drug paraphernalia nine months after the date of the affidavit, and there was no evidence that the magistrate took any testimony to clear up the erroneous dates. Bathrick v. State, 2016 Ark. App. 444, 504 S.W.3d 639 (2016).

—Execution of Arrest Warrant.

Motion to suppress should have been granted in a drug case because there was no reasonable basis for officers to believe that appellant was present before executing an arrest warrant; moreover, there were no exigent circumstances under Ark. R. Crim. P. 14.3 because there was no movement observed in the surveillance conducted before the entry. Gutierrez v. State, 2012 Ark. App. 628 (2012).

—Grounds.

In an affidavit for a search warrant, if an officer swears that there is contraband at a particular address, there are three possibilities for the basis of his conclusion: (1) the officer has seen the illegal object or objects in which event his affidavit should assert his personal observation; (2) the officer observed or perceived facts from which the presence of the contraband may reasonably be inferred, in which event the affidavit must recite the perceived facts so that the magistrate may judge the existence of probable cause; (3) the officer obtained the information from someone else, as for example an informer, in which event the warrant should not issue unless good cause is shown in the affidavit or supporting testimony for crediting the hearsay. Bailey v. State, 246 Ark. 362, 438 S.W.2d 321 (1969).

The search of appellant's house and seizure of stolen articles therein was not unreasonable where police officers had seen some green stamps which had been stolen in plain view inside the house before getting the search warrant. Young v. State, 254 Ark. 72, 491 S.W.2d 789 (1973).

Where affidavit of one officer stated information received from an informer and stated reasons for giving credence to the statements of the informer, and such affidavit was supported by another affidavit giving recorded telephone conversations, affidavits furnished sufficient probable cause for the issuance of a warrant to search the apartment. Blankenship v. State, 258 Ark. 535, 527 S.W.2d 636 (1975).

A conclusory statement in a search warrant that there were reasonable grounds for issuance of such warrant was not patently unconstitutional where the attached affidavit stated all the information on which the finding was based. Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977).

Incriminating admission from defendant's son obtained on lawful entry onto common driveway in front of defendant's house, accusation by housemate, and officers' observation of marijuana plants constituted probable cause to support search warrant. Williams v. State, 53 Ark. App. 63, 918 S.W.2d 209 (1996).

Reasonable cause existed to issue search warrants where affidavits cited anonymous tips and indicated that a police canine alerted numerous times on defendant's storage unit; further, an officer testified that the dog cost $10,000, that he had used him in the past, and that “he did a good job” and, thus, there was information known to one of the executing officers that bolstered the reliability of the canine. Blevins v. State, 95 Ark. App. 218, 235 S.W.3d 921 (2006).

Search warrant was issued upon probable cause that evidence of the robbery was likely to be found in the mobile home defendant shared with his brother, including defendant's bedroom. The brother had been stopped in a car matching the description of the car used in the robbery and the police found clothing used in the robbery in the trunk and recovered money stolen from the bank on the brother's person; and because defendant's arrest on an unrelated charge was lawful, any custodial statements he had made to the police could lawfully be contained in the affidavit supporting the probable cause for issuing the search warrant. Echols v. State, 2015 Ark. App. 304, 462 S.W.3d 352 (2015).

—Issuance.

A statute authorizing the issuance of a warrant for seizure and destruction of illegally kept liquors, when it is established after notice to and hearing of the claimants that the liquor is illegally kept, is constitutional. Ferguson v. Josey, 70 Ark. 94, 66 S.W. 345 (1902).

A peace officer may not issue search and seizure warrants since only judicial officers may issue such warrants. Ex parte Levy, 204 Ark. 657, 163 S.W.2d 529 (1942).

Where statutes authorizing search warrants did not authorize the issuance of a search warrant for drugs; nor did the common law, drugs seized pursuant to such a warrant were inadmissible. Grimmett v. State, 251 Ark. 270a, 476 S.W.2d 217 (1972).

Search warrant was not invalid based on the fact that the issuing judge had recused himself from defendant's prior cases because defendant's son had been charged with burglarizing the judge's home; defendant presented no evidence to indicate that the judge was biased against him when signing the search warrant at issue, and did not challenge the sufficiency of the affidavit issued in support of the warrant or otherwise indicate that the search warrant was defective in any manner but for the fact that it was issued by that particular judge. Davis v. State, 367 Ark. 341, 240 S.W.3d 110 (2006).

Trial court did not err in denying defendant's motion to suppress evidence where defendant was searched pursuant to an arrest warrant because no contemporaneous recording of oral testimony was necessary to support a bench warrant's probable cause requirement. Blanchett v. State, 368 Ark. 492, 247 S.W.3d 477 (2007).

—Oath or Affirmation.

A statute authorizing a search for intoxicating liquors without information on oath or affirmation is unconstitutional. Ferguson v. Josey, 70 Ark. 94, 66 S.W. 345 (1902).

Sheriffs or peace officers giving notice of the operation of gambling devices to judges, and requiring the accused to be dealt with by appropriate process, is not a violation of the section requiring the information to be given under oath as only officers under official oath give such information. State v. Williams, 109 Ark. 465, 161 S.W. 159 (1913).

Affidavit for search warrant was void on its face where it showed that the officers who executed the affidavit did not appear before any officer authorized to take such an acknowledgment and jurat to the affidavit was not executed by any official. Bailey v. State, 246 Ark. 362, 438 S.W.2d 321 (1969).

—Production at Trial.

It is error when the state fails to produce the alleged search warrant on which it relies at trial. Russ v. Camden, 256 Ark. 214, 506 S.W.2d 529 (1974).

—Scope of Search.

Officers' search of a safe was within the scope of the search authorized by the warrant because the safe was large enough to contain drugs, drug paraphernalia and the second handgun described by the informant. The fact that the officers had already discovered some drugs and drug paraphernalia did not preclude them from continuing to search for drugs and drug paraphernalia and the second handgun. State v. Stites, 2009 Ark. 154, 300 S.W.3d 103 (2009).

When a legitimate search is under way, and when its purpose and its limits have been precisely defined, police officers need not obtain a second warrant to search containers found during a premises search. State v. Stites, 2009 Ark. 154, 300 S.W.3d 103 (2009).

—Sufficiency.

Where search warrant described premises to be searched as farmhouse, barn, and curtilage and appurtenances, the description was sufficient to authorize police officers to search a chicken house and a hay shed on the farm. State v. Cashion, 260 Ark. 148, 539 S.W.2d 423 (1976).

The absence of the recitations required by court rules did not substantially prejudice defendant where the search warrant was executed and the return made within a few hours after the warrant was issued, the officer offered a sworn statement that evidence of the crimes might be disposed of by morning, and the magistrate's actual issuance of the search warrant established his finding of probable cause even more positively than the insertion of a conclusory finding to that effect would have. Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977).

The absence of a reference to time in an affidavit does not make the subsequent warrant automatically defective, however, where the omission of any reference to time is so complete that none can be inferred, the affidavit is defective and the warrant invalid. Herrington v. State, 287 Ark. 228, 697 S.W.2d 899 (1985).

The good faith exception to the exclusionary rule should not be applied when the warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. An arrest warrant which fails to particularize or enumerate the crime for which the suspect was arrested is facially deficient. Abbott v. State, 307 Ark. 278, 819 S.W.2d 694 (1991).

Based on the officers' experience with the drug task force, they could not have reasonably presumed that the arrest warrant was valid on its face as it stated that defendant had committed an offense that did not exist under former § 5-64-401. Abbott v. State, 307 Ark. 278, 819 S.W.2d 694 (1991).

—Unreasonable.

Search warrant to obtain bullet lodged in defendant's spinal canal, the use of which would involve a major operation with pain, trauma, and risk of life, was invalid as unreasonable. Bowden v. State, 256 Ark. 820, 510 S.W.2d 879 (1974).

Cited: Clubb v. State, 230 Ark. 688, 326 S.W.2d 816 (1959); Russ v. Camden, 256 Ark. 214, 506 S.W.2d 529 (1974); United States v. Price, 441 F. Supp. 814 (E.D. Ark. 1977); Fairchild v. Lockhart, 675 F. Supp. 469 (E.D. Ark. 1987); Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989); Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002); Nelson v. State, 92 Ark. App. 275, 212 S.W.3d 31 (2005); Steinmetz v. State, 366 Ark. 222, 234 S.W.3d 302 (2006); Sheridan v. State, 368 Ark. 510, 247 S.W.3d 481 (2007).

§ 16. Imprisonment for debt.

No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.

Research References

Am. Jur. 16B Am. Jur. 2d, Constitutional Law, § 674 et seq.

C.J.S. 16A C.J.S., Constitutional Law, § 813 et seq.

U. Ark. Little Rock L.J.

Survey, Criminal Law, 12 U. Ark. Little Rock L.J. 617.

U. Ark. Little Rock L. Rev.

Lynn Foster, The Hands of the State: The Failure to Vacate Statute and Residential Tenants’ Rights In Arkansas, 36 U. Ark. Little Rock L. Rev. 1 (2013).

Case Notes

Contempt Power.

A chancellor can enforce an order to compel conduct, even if it is an order to pay money, by the contempt power, but the contempt power is limited to cases where the contemnor has the ability to pay. Gould v. Gould, 308 Ark. 213, 823 S.W.2d 890 (1992).

Although the parties had agreed to each pay one-half the college expenses of any child that chose to attend college, where the mother later declined to pay her half, the trial judge clearly erred in holding the mother in contempt because she demonstrated by more than a preponderance of the evidence that her failure to reimburse the father for college expenses was not due to “willful obstinacy,” but financial inability coupled with ill health; also relevant and material were the mother's assertions that their adult daughter's illness required her to take care of their granddaughter and assume some of those financial responsibilities, and the trial judge's exclusion of the latter evidence unfairly interfered with the mother's defense and constituted an abuse of discretion. Aswell v. Aswell, 88 Ark. App. 115, 195 S.W.3d 365 (2004).

Detention by Sureties.

Proceedings by sureties to detain the executor indemnified are not proceedings to arrest a debtor for debt, but to obtain indemnity for the surety against the debt, or liability upon which the surety is bound, before it is due. Ruddell v. Childress, 31 Ark. 511 (1876).

Disobedience of Court Order.

Imprisonment for disobedience of an order directing payment of specific funds adjudged to be in the hands of the defendant is not imprisonment for debt. Meeks v. State, 80 Ark. 579, 98 S.W. 378 (1906); Harrison v. Harrison, 239 Ark. 756, 394 S.W.2d 128 (1965); Cummings v. Fingers, 296 Ark. 276, 753 S.W.2d 865 (1988).

Judgment of imprisonment for disobedience of order to pay a sum into court without finding that defendant had such sum is an imprisonment for debt. Leonard v. State, 170 Ark. 41, 278 S.W. 654 (1926); Godwin v. Godwin, 268 Ark. 364, 596 S.W.2d 695 (1980).

While inability to perform is a defense to contempt citations, where the inability to pay on a property settlement agreement incorporated into a divorce decree is due to actions or inactions on the defendant's own part, a finding of contempt is proper. Brown v. Brown, 305 Ark. 493, 809 S.W.2d 808 (1991).

Imprisonment for disobedience of an order to pay a sum into the court, without finding the party was able to pay the sum, is imprisonment for debt in violation of this section. Whitworth v. Whitworth, 331 Ark. 461, 961 S.W.2d 768 (1998).

Circuit court order incarcerating a mother as a sanction for her failure to make proper efforts to retire her child-support arrearage was remanded where the circuit court failed to make any finding that the mother had the ability to pay, and the record did not indicate that the court had even taken that requirement into consideration. Stehle v. Zimmerebner, 2016 Ark. 290, 497 S.W.3d 188 (2016).

Fraud or Fraudulent Intent.

Criminal provision of statute for failure of the contractor to satisfy the lien which does not make fraud or fraudulent intent a part or prerequisite of the criminal offense violates this section. Peairs v. State, 227 Ark. 230, 297 S.W.2d 775 (1957).

Supreme Court upheld trial court's ruling that § 5-37-525, which makes it a crime for a contractor or subcontractor to knowingly refuse to pay for materials, is unconstitutional in that it violates this section, which prohibits imprisonment for debt. State v. Riggs, 305 Ark. 217, 807 S.W.2d 32 (1991).

Practicing Without License.

The punishing of attorneys practicing without a license as a misdemeanor does not violate provision of Constitution against imprisonment for debt. Shepherd v. City of Little Rock, 183 Ark. 244, 35 S.W.2d 361 (1931).

§ 17. Attainder — Ex post facto laws.

No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall ever be passed; and no conviction shall work corruption of blood or forfeiture of estate.

Research References

ALR.

Prejudgment interest in tort actions, validity and construction of statute or rule allowing or changing rate. 40 A.L.R.4th 147.

Retrospective application and effect of state statute or rule allowing interest or changing rate of interest on judgments or verdicts. 41 A.L.R.4th 694.

Construction and Application of U.S. Const., Art. I, § 9, cl. 3, Proscribing Federal Bills of Attainder. 62 A.L.R.6th 517.

Construction and Application of U.S. Const., Art. I, § 10, cl. 1, and State Constitutional Provisions Proscribing State Bills of Attainder. 63 A.L.R.6th 1.

Am. Jur. 16B Am. Jur. 2d, Constitutional Law, §§ 641 et seq., 689 et seq.

Ark. L. Rev.

Notes, Estate of Sargent v. Benton State Bank: Judicial Limitations on a Slayer's Right to Inherit from the Decedent, 38 Ark. L. Rev. 653.

C.J.S. 16A C.J.S., Constitutional Law, § 506 et seq.

U. Ark. Little Rock L.J.

Oliver, Rejecting the “Whipping-Boy” approach to tort law: Well-made handguns are not defective products, 14 U. Ark. Little Rock L.J. 1.

Case Notes

Applicability.

This section applies only to legislation passed subsequent to the contract alleged to have been impaired. Mahurin v. Oaklawn Jockey Club, 299 Ark. 13, 771 S.W.2d 19 (1989).

Contract Impairment.

A contract in which payment was to be in Confederate money could not be impaired by the passage of an act which provided that United States currency might be substituted for such Confederate money. Leach v. Smith, 25 Ark. 246 (1868) (decision under prior Constitution).

County tax collector erred in including 2.75 mills in the total ad valorem rate and applying a portion of them to the redevelopment district because the mills were passed to repay proposed school bonds; under § 14-168-301(18)(B)(i), the “total ad valorem rate” excluded increases that were pledged for repayment of a specific bond issue. This statute did not violate this section of Article 2 by impairing the redevelopment bond purchase contract and financing, because the 2.75 mills had not been passed at the time the city authorized the issuance of redevelopment bonds. City of Fayetteville v. Fayetteville Sch. Dist. No. 1, 2013 Ark. 71, 427 S.W.3d 1 (2013).

Acts 2015, No. 900, which amended § 17-92-507, does not violate the Contracts Clause because past industry regulation suggests that pharmacy benefits managers could not have reasonably expected that their reimbursement practices would escape regulation forever, and the act's regulations on maximum allowable cost (MAC) pricing and its appeals procedures are not unreasonable methods of combating MAC reimbursement practices deemed harmful to pharmacies and the public. Pharm. Care Mgmt. Ass'n v. Rutledge, 240 F. Supp. 3d 951 (E.D. Ark. 2017), aff'd in part, reversed in part, 891 F.3d 1109 (8th Cir. 2018).

Settlement agreement between the prisoners and the Department of Correction did not require the disclosure of the identity of the supplier of the drugs used in the present lethal-injection protocol, and thus, the circuit court erred in concluding that the department's refusal to identify the supplier violated Ark. Const., Art. 2, § 17. Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346 (2016), cert. denied, 137 S. Ct. 1067, 197 L. Ed. 2d 235 (2017).

—Assessment for Improvements.

Where an assessment for road improvements has been made and a contract for the construction let on the strength of the assessment, the amount of the benefits assessed cannot be reduced so as to impair the obligation of the contract. Pool v. Mitchell, 139 Ark. 319, 213 S.W. 752 (1919).

An act excluding from a road improvement district half the lands originally burdened with the cost after the bond obligation was incurred, thereby enlarging the burden upon the remaining lands, is unconstitutional as an impairment of contract. Bacon v. Road Improv. Dist., 157 Ark. 309, 248 S.W. 267 (1923).

—Attorney and Client.

Statute which would destroy and impair the power or right to make contracts between attorney and client was unconstitutional. Bennett v. NAACP, 236 Ark. 750, 370 S.W.2d 79 (1963).

—Claims Against an Estate.

An act may be passed which bars claims against an estate and those arising within two years, after the elapse of a two-year period from death, unless such claims challenge the constitutionality of the non-claim statute as applicable to a particular case. Bennett v. Dawson, 18 Ark. (5 Barber) 334 (1857) (decision under prior Constitution).

—Donation of Certificates.

A certificate of donation of tax forfeited lands is an obligation of the state and a limited contract which may not be impaired. Waldon v. Holland, 206 Ark. 401, 175 S.W.2d 570 (1943).

—Franchise.

A franchise granted to erect and maintain light poles in the city streets for 20 years with a subsequent contract to light the streets for ten years is a grant which can not be impaired by the city's charging rent for the use of the ground occupied by the poles. Hot Springs Elec. Light Co. v. City of Hot Springs, 70 Ark. 300, 67 S.W. 761 (1902).

—Judgment Creditor.

A judgment creditor has no contract whatever in respect to reduction of interest rates upon judgments previously obtained in state courts, and an act reducing such rates does not impair the prior contracts of such creditor. Read v. Mississippi County, 69 Ark. 365, 63 S.W. 807 (1901), aff'd, 188 U.S. 739, 23 S. Ct. 849, 47 L. Ed. 677 (1903).

—Materialman's Lien.

Section 18-44-115, which requires notice must be given to a landowner before there is a delivery of materials in order for a materialman's lien to be perfected against the land, is not a law which impairs the obligation of contract in violation of this section of the constitution. Ellison v. Tubb, 295 Ark. 312, 749 S.W.2d 650 (1988).

—Mortgages.

An act regulating the sale of property under mortgages and deeds of trust can not affect such instruments executed before the passage of the act. Robards v. Brown, 40 Ark. 423 (1883).

An act providing that, in cases of existing mortgages which would bar liability in less than one year from the passage of the statute of limitation, one year is allowed from the date of the passage of the act, is constitutional. Hill v. Gregory, 64 Ark. 317, 42 S.W. 408 (1897).

—Police Power.

All contracts are made subject to the police power to change the contracts; therefore, the act conferring the power to change rates does not impair the obligations of a contract. Camden v. Ark. Light & Power Co., 145 Ark. 205, 224 S.W. 444 (1920).

Statutes governing prepaid funeral expenses are not an unconstitutional impairment of contract between vault company and its salesmen for commissions earned prior to passage as such prohibitions do not prevent a proper exercise by the state of its police power. Reserve Vault Corp. v. Jones, 234 Ark. 1011, 356 S.W.2d 225 (1962).

—Private Contracts.

The classes of contracts entered into voluntarily that were based on the assent of the parties or impliedly given, as opposed to those that were compulsory, were protected by the constitutional provisions against impairing the obligations of a contract. Jones v. Cheney, 253 Ark. 926, 489 S.W.2d 785 (1973).

—Public Contracts.

Where a board of penitentiary commissioners has made a valid contract the board has no power to rescind the contract, as the power to abrogate is denied the legislature by the constitutional prohibition of impairment of contracts. McConnell v. Ark. Brick & Mfg. Co., 70 Ark. 568, 69 S.W. 559 (1902).

The legislature can not impair the obligation of the state to pay for work done under a contract for the building of the state capitol. Jobe v. Caldwell, 93 Ark. 503, 125 S.W. 423 (1910).

Contribution of state revenues to road improvement districts is a gratuity which may be withheld or given at will. Gray v. Jones, 174 Ark. 650, 296 S.W. 61 (1927).

The contract existing between owners of refunding bonds and the state is not impaired by transferring the balance in the refunding fund to a general refunding bond redemption account. Scougale v. Page, 194 Ark. 280, 106 S.W.2d 1023 (1937).

Since holders of outstanding bonds will have at least the substantial equivalent in quality and accessibility of security when receiving refunding bonds, it follows therefore that the refunding does not violate the impairment of contract clause. Beaumont v. Faubus, 239 Ark. 801, 394 S.W.2d 478 (1965).

The provision prohibiting the passage of laws impairing obligations of contracts applied to contracts made by the state or by one of its agencies when authorized by law. Jones v. Cheney, 253 Ark. 926, 489 S.W.2d 785 (1973).

Acts 1993, No. 294, legislation that resulted in the supplementation of the terms of a consolidation agreement between two school districts as to the election of school board members, and which repealed §§ 6-13-220 and 6-13-301 et seq., did not result in impairment of contract in violation of this section because the contract between the two former districts was public, not private, in nature and was thus subject to legislative action. East Poinsett County Sch. Dist. No. 14 v. Massey, 315 Ark. 163, 866 S.W.2d 369 (1993).

Contract Clause claims under U.S. Const., Art. 1, § 10 and Ark. Const., Art. 2, § 17 failed because defendants properly terminated the collective bargaining agreement; therefore, there was no contractual obligation that was impaired. AFSCME, Local 380 v. Hot Spring County, 362 F. Supp. 2d 1035 (W.D. Ark. 2004).

—Public Officers.

An act abolishing an office before the end of a fixed term does not impair an obligation of a contract since the officeholder was an officer and not an employee under contract. Vincenheller v. Reagan, 69 Ark. 460, 64 S.W. 278 (1901).

Since public officers do not hold office by contract or grant, appropriate duties and penalties may be imposed or removed during an officer's term. Hunter State Bank v. Mills, 90 Ark. 10, 117 S.W. 760 (1909).

The sureties on a county treasurer's bond do not become liable for penalties imposed by a statute enacted after the execution of the bond. Hunter State Bank v. Mills, 90 Ark. 10, 117 S.W. 760 (1909).

—Remedies.

The legislature has the power to abolish imprisonment for debt. Such laws act merely upon the remedy and may operate upon present as well as future contracts without impairing the obligation thereof. Newton v. Tibbatts, 7 Ark. 150 (1846) (decision under prior Constitution).

The right to alter remedies without impairing contracts does not include the right to remove the remedy entirely. Vernon v. Henson, 24 Ark. 242 (1866); Woodruff v. Scruggs, 27 Ark. 26 (1871) (decisions under prior Constitution).

An act which furnishes a remedy different from those existing when a contract is entered into does not impair the obligation of the contract, or infringe upon the rights of the parties, and is constitutional. McCreary v. State, 27 Ark. 425 (1872) (decision under prior Constitution).

Although a legislature may change the remedy in a contract, they may not, in acting on the remedy, interfere with any right accruing under the contract, whether stipulated or the result of law. After a right has been judicially ascertained by judgment, the legislature can not interfere with the process to enforce that right. Oliver v. McClure, 28 Ark. 555 (1873) (decision under prior Constitution).

Legislation which deprives a party of a remedy substantially as efficient as that existing at the making of the contract impairs the contract. Robards v. Brown, 40 Ark. 423 (1883).

—Repeal of Act.

An act which provides for a lien and the giving of damages in certain employment contracts, and under which a contract is founded, cannot be repealed in relation to those contracts as the repeal would be an impairment. Chowning v. Barnett, 30 Ark. 560 (1875).

—Right of Redemption.

Purchaser at an assessment foreclosure sale was not affected by subsequent statute allowing an additional period of redemption to delinquent owner who attempted to redeem after the sale had been made. Smith v. Spillman, 135 Ark. 279, 205 S.W. 107 (1918).

The right of redemption of delinquent assessed property is a matter of grace rather than a vested right, and the period of redemption may be reduced from the period existing at the time of the formation of a drainage district. State Nat'l Bank v. Morthland, 196 Ark. 346, 118 S.W.2d 266 (1938).

A statute enacted subsequent to the issue of a donation certificate giving the landowner a further right of redemption regardless of pending donations and remitting the donee to the courts for the enforcement of any rights as to property because of betterments is an impairment of the donee's contractual rights. Waldon v. Holland, 206 Ark. 401, 175 S.W.2d 570 (1943).

—Taxation.

The imposition of a sales tax on building materials sold under a contract made prior to the date of the tax law does not impair the obligation of the contract. Wiseman v. Gillioz, 192 Ark. 950, 96 S.W.2d 459 (1936).

No one acquires by contract a vested right against the state's power to tax, and the obligation of a contract is not impaired because a subsequently enacted tax affects the subject matter of the contract. Southern Kraft Corp. v. Hardin, 205 Ark. 512, 169 S.W.2d 637 (1943).

A proposed amendment which would have abolished state and local sales and use taxes conflicted with the prohibition against the passage of any law impairing the obligation of contracts in the light of existing sales and use tax bonds which were secured by collections of the sales and use tax. Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000).

Ex Post Facto.

—In General.

Statutes can be construed to operate retroactively so long as they do not disturb contractual or vested rights, or create new obligations. Ark. Dep't of Human Servs. v. Walters, 315 Ark. 204, 866 S.W.2d 823 (1993).

If the public policy set out in an act offends the court's sense of justice, the court will not apply it retroactively, but if it does not offend the court's sense of justice, the court can apply it retroactively. Ark. Dep't of Human Servs. v. Walters, 315 Ark. 204, 866 S.W.2d 823 (1993).

—Civil Proceedings.

The imposition of criminal liability ex post facto is prohibited by both the United States and State Constitutions, as are Bills of Attainder, but the fact that a civil statute might be retroactive is not sufficient, by itself, to invalidate an act. Ark. Dep't of Human Servs. v. Walters, 315 Ark. 204, 866 S.W.2d 823 (1993).

—Criminal Proceedings.

An ex post facto law declares an offense to be punishable in a manner that it was not punishable at the time it was committed and relates exclusively to criminal proceedings. Taylor v. Governor, 1 Ark. 21 (1837); Ex parte Jackson, 45 Ark. 158 (1885); Southern Kraft Corp. v. Hardin, 205 Ark. 512, 169 S.W.2d 637 (1943).

An act dividing a county into judicial districts and providing for the selection of juries only from the appropriate district is not ex post facto relative to offenses committed before passage since the act relates only to procedure and not to punishment. Potter v. State, 42 Ark. 29 (1883).

A trial is controlled by the substantive law in effect on the date of the commission of the crime; however, speedy trial rules are not substantive law, they are procedural law, and the rule in effect at the time of trial applies. Jennings v. State, 276 Ark. 217, 633 S.W.2d 373, cert. denied, 459 U.S. 862, 103 S. Ct. 137, 74 L. Ed. 2d 117 (1982).

Application of a parole statute less favorable to one who had been sentenced prior to its passage than the parole law existing at the time of his sentencing would be unconstitutional as an ex post facto law in violation of this section. Bosnick v. Lockhart, 283 Ark. 206, 672 S.W.2d 52 (1984).

Legislation repealing provisions restricting the admissibility of evidence derived from an intercepted oral communication, which was enacted after the crime but before the defendant's trial, did not violate U.S. Const., Art. I, § 10 and this section prohibiting ex post facto laws. Smith v. State, 291 Ark. 163, 722 S.W.2d 853 (1987).

The retroactive application of an act which amended § 12-9-108(a) to provide that action taken by non-qualified law enforcement officers would not be held invalid does not violate the ex post facto clause because: (1) it does not punish as a crime an act previously committed, which was innocent when done; (2) it does not make more burdensome the punishment for a crime after its commission; (3) it does not alter a legal rule of evidence to receive less or different testimony than was required at the time of the commission of the offense; and (4) it does not deprive a defendant of any defense available at the time when the act was committed. Ridenhour v. State, 305 Ark. 90, 805 S.W.2d 639 (1991).

The retroactive application of Acts 1989, No. 44, which amended § 12-9-108, was not prohibited by the ex post facto clause where defendant's case was pending when Acts 1989, No. 44 was enacted. Ellis v. State, 306 Ark. 461, 816 S.W.2d 164 (1991).

When defendant was originally tried and convicted in 1993, Arkansas law then authorized, and he received, a non-bifurcated trial; however, after his original conviction, but before his case was reversed and remanded, Arkansas law was amended to permit bifurcated trials in all felony cases, and trying defendant's second trial on remand pursuant to the newly-enacted bifurcated trial procedure did not violate the Ex Post Facto Clause. Suggs v. State, 322 Ark. 40, 907 S.W.2d 124 (1995).

The “cruel or depraved manner” aggravating circumstance, which had not been enacted at the time the crime was committed, is not a merely procedural provision and could not be applied ex post facto. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, Bowen v. Arkansas, 517 U.S. 1226, 116 S. Ct. 1861, 134 L. Ed. 2d 960 (1996).

The Sex and Child Offender Registration Act of 1997 (now the Sex Offender Registration Act of 1997), § 12-12-901 et seq., is essentially regulatory and non-punitive in nature and, therefore, cannot be considered a violation of the ex post facto clauses of the United States or Arkansas Constitutions. Kellar v. Fayetteville Police Dep't, 339 Ark. 274, 5 S.W.3d 402 (1999).

Defendant correctly asserted that the application of the 70 percent parole-eligibility rule to defendant's sentence for manufacture of methamphetamine, a 1998 offense, would have been an ex post facto law in violation of the federal and state constitutions; however, defense counsel never raised an objection to the application of the 70 percent parole-eligibility rule at trial, defendant's case did not come within the scope of any of the recognized exceptions to the contemporaneous objection rule, and Arkansas did not adhere to the “plain error” rule, thus, defendant's argument was not preserved for review. McGhee v. State, 82 Ark. App. 105, 112 S.W.3d 367 (2003).

2009 Ark. Acts 1296, amending § 5-4-617, applied to all who would be executed after its enactment, and it did not change either the inmate's criminal liability or his sentence; because the Act would not be retroactively applied, it did not violate the ex post facto clause, and the trial court had to lift the injunction staying the inmate's execution. Ark. Dep't of Corr. v. Williams, 2009 Ark. 523, 357 S.W.3d 867 (2009), cert. denied, 562 U.S. 913, 131 S. Ct. 271, 178 L. Ed. 2d 179 (2010).

— —Penalties.

Capital felony provisions of an act cannot be applied to offenses committed prior to its enactment because if they were the act would be an ex post facto law. Upton v. Graves, 255 Ark. 516, 509 S.W.2d 823 (1973).

Statute enhancing penalties for successive offenses of drunken driving was not an ex post facto law as applied to provide enhanced penalties against a driver whose third offense occurred after the effective date of the act but whose first two offenses occurred prior to such date. Sims v. State, 262 Ark. 288, 556 S.W.2d 141 (1977).

Sentencing procedure is controlled by the statutes in effect on the date of the commission of the crime. Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981).

Arkansas's bifurcated sentencing procedures in §§ 5-4-103 and 16-97-103 are not violative of the ex post facto clause in the United States Constitution or this section. Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995).

The ex post facto clause does not prohibit the retroactive application of a measure that disadvantages an accused by denying him only the opportunity to reduce his sentence. Duncan v. State, 337 Ark. 306, 987 S.W.2d 721 (1999).

Defendant's conviction under former § 5-65-122 (see now § 5-65-111), enhancing the sentence for a sixth offense of driving while intoxicated, did not violate the ex post facto clauses of the United States Constitution and the Arkansas Constitution, even though the prior convictions occurred before passage of the statute, because the crime with which defendant was charged occurred after former § 5-65-122 was enacted. Defendant's remaining claims were not preserved for appellate review. Laymon v. State, 2015 Ark. 485, 478 S.W.3d 203 (2015).

Defendant failed to preserve his argument on appeal that the circuit court erred in sentencing him as an habitual offender based on conduct that occurred before the conviction that was used for enhancement purposes; while defendant specifically requested a ruling based on the due-process clauses of the state and federal constitutions, at no time did he assert to the circuit court that the application of the sentencing enhancement provisions violated the ex post facto clause of either constitution. Stover v. State, 2017 Ark. 66, 511 S.W.3d 333 (2017).

When a 2015 amendment to subdivision (d)(1) of the habitual offender statute, § 5-4-501, included residential burglary in the list of crimes considered to be felonies involving violence, no ex post facto violation occurred even though defendant's convictions for residential burglary that were counted toward enhancement of his sentence occurred before the effective date of the amendment. Nothing in § 5-4-501(d)(1) limited counted violent felony convictions to those occurring after the effective date of the statute, appellant did not deny that he had committed four felonies that were now explicitly classified as violent felonies, and appellant was clearly on notice of the date the statutory change became effective. Handy v. State, 2017 Ark. App. 74, 510 S.W.3d 292 (2017).

—Jury Instructions.

Giving a jury the amended version of a jury instruction, where the amendment occurred after the crime was allegedly committed and the version as amended made it easier for the state to prove its case, violated the ex post facto clause. Napier v. State, 74 Ark. App. 272, 46 S.W.3d 565 (2001).

—Municipal Ordinance.

Because a property owner was cited for violating the city code by failing to abate a nuisance months after the ordinance had been changed, no ex post facto application of the punishment for failure to abate a nuisance occurred. The citation for failure to abate the nuisance was the event giving rise to the cause of action, rather than the collapse of the building. Trice v. City of Pine Bluff, 2017 Ark. App. 638, 536 S.W.3d 139 (2017).

—Parole Eligibility.

Circuit court erred in denying an inmate's in forma pauperis petition because he stated sufficient non-conclusory facts to assert a colorable claim for judicial review of an alleged violation of the ex post-facto prohibition; the inmate specifically alleged that his term of incarceration was extended by two years through the retroactive application of the current parole-eligibility statute, § 16-93-615, as compared to the former statute that was in effect when he committed his crime. Ruiz v. Felts, 2017 Ark. 85, 512 S.W.3d 626 (2017).

—Retirement Laws.

Where only the rights of anyone who became a member of the retirement system after the effective date of the amendment were governed by the law as so amended, there was no basis on which to classify the section as ex post facto legislation. Jones v. Cheney, 253 Ark. 926, 489 S.W.2d 785 (1973).

There was no violation of the prohibition against ex post facto laws in the application of § 14-42-117 to a person whose right to retirement benefits did not vest prior to the enactment of the statute. Robinson v. Taylor, 342 Ark. 459, 29 S.W.3d 691 (2000).

—Sex Offender Registration.

Sex Offender Screening and Risk Assessment Committee's assessment of a sex offender as a level four offender based on convictions which occurred before the effective date of the Sex Offender Registration Act did not violate the ex post facto prohibitions of U.S. Const., Art. I, § 10 and this section. Because the Sex Offender Registration Act is not a form of punishment, the Supreme Court of Arkansas held that it cannot be considered a violation of the ex post facto clauses of the United States and Arkansas Constitutions. Parkman v. Sex Offender Screening & Risk Assessment Comm., 2009 Ark. 205, 307 S.W.3d 6 (2009).

Forfeiture of Estate.

A beneficiary may recover on a life insurance policy on life of insured executed for a crime where the policy does not specifically exempt the insurer from liability. Progressive Life Ins. Co. v. Dean, 192 Ark. 1152, 97 S.W.2d 62 (1936).

Cited: Garrett v. Faubus, 230 Ark. 445, 323 S.W.2d 877 (1959); Forrest City Mach. Works, Inc. v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981); Cooper v. State, 278 Ark. 394, 645 S.W.2d 950 (1983); Parker v. Corrothers, 750 F.2d 653 (8th Cir. 1984); Gunter Bros. Lumber Co. v. Launius, 11 Ark. App. 191, 669 S.W.2d 205 (1984); Deaton v. State, 283 Ark. 79, 671 S.W.2d 175 (1984); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993).

§ 18. Privileges and immunities — Equality.

The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.

Research References

ALR.

Public utilities — validity of preferential rates for elderly or low-income persons. 29 A.L.R.4th 615.

Preference given to employment of residents by contractors or subcontractors engaged in, or awarded contracts for, construction of public works or improvements. 36 A.L.R.4th 941.

Validity, construction, and application of state statute forbidding unfair trade practice or competition by discriminatory allowance of rebates, commissions, discounts, or the like. 41 A.L.R.4th 675.

Am. Jur. 16B Am. Jur. 2d, Constitutional Law, § 790 et seq.

Ark. L. Rev.

Gitelman and McIvor, Domicile, Residence and Going to School in Arkansas, 37 Ark. L. Rev. 843.

Note, Dupree v. Alma School District No. 30: Mandate for an Equitable State Aid Formula, 37 Ark. L. Rev. 1019.

Comment, Does Arkansas Code Section 5-14-122 Violate Arkansas's Constitutional Guarantee of Equal Protection?, 51 Ark. L. Rev. 521.

Lessons From Lake View: Some Questions and Answers from Lake View School District No. 25 v. Huckabee, 56 Ark. L. Rev. 519 (2003).

Mark A. Fritsche, Case Note: Kimbrell v. McCleskey: Rethinking the Constitutional Equality Requirement for Funding Arkansas's Public Schools, 67 Ark. L. Rev. 723 (2014).

C.J.S. 16B C.J.S., Constitutional Law, § 1204 et seq.

U. Ark. Little Rock L.J.

Notes, Constitutional Law — Equal Protection and School Funding in Arkansas, Dupree v. Alma Sch. Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1953), 6 U. Ark. Little Rock L.J. 541.

U. Ark. Little Rock L. Rev.

Note: Constitutional Law — Privacy and Equal Protection — Arkansas Joins Other States in a Revival of State Constitutions as Guardians of Individual Rights, Establishing New Protections for Arkansas Gays and Lesbians, Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), 25 U. Ark. Little Rock L. Rev. 681.

Annual Survey of Caselaw, Constitutional Law, 25 U. Ark. Little Rock L. Rev. 908.

Note, Constitutional Law — Education and Equal Protection — Towards Intelligence and Virtue: Arkansas Embarks on a Court-Mandated Search for an Adequate and Equitable School Funding System. Lake View School District No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002), 26 U. Ark. Little Rock L. Rev. 143 (2003).

Funding the Education of Arkansas's Children: A Summary of the Problems and Challenges, 27 U. Ark. Little Rock L. Rev. 1.

Bettina Brownstein, Essay: Lake View — A Roadmap for Asserting the Rights of the Jailed Mentally Ill, 35 U. Ark. Little Rock L. Rev. 525 (2013).

Case Notes

In General.

The equal protection clause does not prohibit legislation that recognizes degrees of evil, nor does it require that things which are different in fact or opinion be treated in law as though they were the same. J.W. Black Lumber Co. v. Ark. Dep't of Pollution Control & Ecology, 290 Ark. 170, 717 S.W.2d 807 (1986).

Adoption Proceedings.

In proceeding on petition for adoption, the probate court erred in denying minor mother's petition to annul an interlocutory decree of adoption where the minor mother was not served with process prior to the entry of the interlocutory order and where the decree was rendered without a defense by a guardian ad litem. Schrum v. Bolding, 260 Ark. 114, 539 S.W.2d 415 (1976) (decision under prior law).

Arrest.

Summary judgment was granted on plaintiff's Arkansas Civil Rights Act claims alleging unreasonable seizure and an equal protection violation because there was probable cause to arrest plaintiff for a violation of § 5-60-125, and plaintiff failed to provide evidence establishing discriminatory effect or purpose on the part of the officers. Ratliff v. City of Shannon Hills, 52 F. Supp. 3d 904 (E.D. Ark. 2014).

Business.

An act or ordinance which arbitrarily and unreasonably discriminates between different modes of conducting the same business is unconstitutional unless there is something in the one mode which makes it dangerous to the public. Rebsamen Motor Co. v. Phillips, 226 Ark. 146, 289 S.W.2d 170 (1956).

Where a tobacco products manufacturer which did not participate in a settlement between states and tobacco companies alleged that an amendment to a statute implementing the settlement provided unequal treatment depending upon whether an entity participated or did not participate in the settlement, no equal protection violation was shown since the amendment bore a rational relationship to the state's interest in reducing the rate of smoking in the state. Dos Santos, S.A. v. Beebe, 418 F. Supp. 2d 1064 (W.D. Ark. 2006).

—Licensing.

License or privilege taxes must be imposed equally and impartially on all persons pursuing the same avocation or exercising the same privileges and the legislature may not under the pretense of a license fee or tax impose unequal taxes on persons similarly situated. Ex parte Deeds, 75 Ark. 542, 87 S.W. 1030 (1905); Rebsamen Motor Co. v. Phillips, 226 Ark. 146, 289 S.W.2d 170 (1956); Clinton v. GMC, 229 Ark. 805, 318 S.W.2d 577 (1958).

— —Gambling.

The operation of a dog track with legalized gambling, is unquestionably a privilege which the state might prohibit altogether and, thus, the state may impose certain conditions upon the exercise of such a privilege which are beyond those that may be imposed upon the enjoyment of matters of common right. Rodgers v. Southland Racing Corp., 247 Ark. 1115, 450 S.W.2d 3, appeal dismissed, 400 U.S. 809, 91 S. Ct. 42, 27 L. Ed. 2d 37 (1970).

—Price Fixing.

A statute fixing price, wages, and hours of barbers violates the privileges and immunities clause of the Constitution. Noble v. Davis, 204 Ark. 156, 161 S.W.2d 189 (1942).

Classification of Employees.

Legislation granting additional pay to retired policemen for accumulated holidays and sick leave is not unconstitutional as singling out certain employees for special privileges not afforded all city employees since the legislative classification was founded upon a reasonable basis and operated uniformly upon the class to which it applied. City of Piggott v. Woodard, 261 Ark. 406, 549 S.W.2d 278 (1977).

Corporations.

A corporation is not a citizen within the meaning of the equal privileges and immunities clause of the Constitution. Chicago, Rock Island & Pac. Ry. v. State, 86 Ark. 412, 111 S.W. 456 (1908), aff'd, 219 U.S. 453, 31 S. Ct. 275, 55 L. Ed. 290 (1911); State ex rel. Moose v. Southern Sand & Material Co., 113 Ark. 149, 167 S.W. 854 (1914); St. Louis & S.F.R.R. v. State, 120 Ark. 182, 179 S.W. 342 (1915).

The state reserves the power to amend or repeal general laws which operate to amend or repeal the charter of a corporation. Ozan Lumber Co. v. Biddie, 87 Ark. 587, 113 S.W. 796 (1908).

Fish and Game.

An act denying non-residents of certain counties the right to fish in those counties without a license confers a special privilege upon the residents of those counties and is unconstitutional. Lewis v. State, 110 Ark. 204, 161 S.W. 154 (1913).

Where a general law denies the right to export a game to the people of some counties, a law granting that privilege to citizens of a particular county is invalid. Jonesboro, Lake City & E.R.R. v. Adams, 117 Ark. 54, 174 S.W. 527 (1915).

The legislature may, in the enactment of laws for the preservation of game and fish, exempt certain sections of the state where such regulation is unnecessary. Jonesboro, Lake City & E.R.R. v. Adams, 117 Ark. 54, 174 S.W. 527 (1915).

The restriction of resident game licenses to those persons having qualifications of legal voters violates the constitutional prohibition of legislative discrimination between classes of citizens. State v. Johnson, 172 Ark. 866, 291 S.W. 89 (1927).

Governmental Agencies.

A levee district is a governmental agency, is not a citizen, and is not granted priviliges within the constitutional meaning, but its grant is of powers in the nature of duties. St. Louis, Iron Mountain & S. Ry. v. Board of Dirs., 103 Ark. 127, 145 S.W. 892 (1912).

Gratuities.

Statute permitting clerical and administrative employees of teacher and education associations to participate in teacher retirement program wherein state pays the employer's portion of the retirement are unconstitutionally expending public funds for a private purpose. Chandler v. Board of Trustees, 236 Ark. 256, 365 S.W.2d 447 (1963).

Guest Statute.

The Guest Statute denying recovery to a guest except for wilful and wanton negligence is not unconstitutional as to violate privileges and immunites for having no fair and rational relation to the legislative objectives sought to be controlled. White v. Hughes, 257 Ark. 627, 519 S.W.2d 70, appeal dismissed, 423 U.S. 805, 96 S. Ct. 15, 46 L. Ed. 2d 26 (1975); Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980).

Livestock.

The legislature may prohibit stock from running at large within certain prescribed territory. Hendricks v. Block, 80 Ark. 333, 97 S.W. 63 (1906).

Local Option.

An act providing that a license to sell liquor shall be granted only upon petition of a majority of adult white inhabitants of a city does not violate the Constitution. McClure v. Topf & Wright, 112 Ark. 342, 166 S.W. 174 (1914); Wade v. Horner, 115 Ark. 250, 170 S.W. 1005 (1914).

A city ordinance which allows an arbitrary discrimination is unconstitutional and void. City of Springdale v. Chandler, 222 Ark. 167, 257 S.W.2d 934 (1953).

Medical Malpractice.

Because plaintiff did not make any convincing argument for the contention that the Arkansas Medical Malpractice Act violates equal protection clause, and because § 16-114-206 does no more than state the common-law elements of a claim for negligence in the medical-malpractice context, the argument did not appear to be well-founded. Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996).

Oil and Gas Lease.

A statute which provides for the partition of oil and gas leasehold interest held in fee by cotenants does not grant special privileges. Overton v. Porterfield, 206 Ark. 784, 177 S.W.2d 735 (1944).

Pollution Control.

There is a rational basis for distinguishing between air pollution attributable to commercial incinerators for burning waste materials, on the one hand, and agricultural clearing and residential fireplaces and grills on the other; therefore, the Water and Air Pollution Control Act does not deny equal protection of the law under this section and the Fourteenth Amendment of the United States Constitution. J.W. Black Lumber Co. v. Ark. Dep't of Pollution Control & Ecology, 290 Ark. 170, 717 S.W.2d 807 (1986).

Price Fixing Legislation.

Statute fixing prices at which liquor could be sold was a valid exercise of the police power and did not violate this section. Gipson v. Morley, 217 Ark. 560, 233 S.W.2d 79 (1950).

Professions.

An act requiring dentists to register with a board of examiners and be certificated does not deprive a citizen of the right to follow a lawful vocation. Gosnell v. State, 52 Ark. 228, 12 S.W. 392 (1889).

Section was not violated by former provision giving nonresident attorneys the right to practice in this state where Tennessee attorney acted as associate counsel to resident attorneys in particular medical malpractice case. McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973).

Property Rights.

One who acquires a life estate by will or deed does not have the same right of partition or commutation as one who holds a life estate in land by virtue of dower or curtesy, and the owner of a life estate created by a will or deed is not denied equal protection of or equal rights under the law because of the different treatment. Staggs v. Staggs, 277 Ark. 315, 641 S.W.2d 29 (1982).

Public School Financing.

The statutory method of financing public schools under the Minimum Foundation Program and of vocational funding, under which system the local tax base determined the amount of state funding received by a district and school districts were required to establish vocational programs with local funds before receiving state funds for such programs, violated this section. Dupree v. Alma Sch. Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983).

The school funding system in place between 1994 and 2000 violated the equality provisions of Ark. Const., Art. 2, §§ 2, 3, and this section because the system did not ensure the equality of actual expenditures of funds spent on the students of each school district by the state; however, the state was given until January 1, 2004, to create a system that ensured equality of funding. Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002), cert. denied, 538 U.S. 1035, 123 S. Ct. 2097, 155 L. Ed. 2d 1066 (2003).

Redevelopment.

Statute providing relief from dangers to public health in cities and rural areas by elimination of slums through the creation of housing authorities was not unconstitutional as the purpose to be served was a public one. Kerr v. East Cent. Ark. Reg'l Housing Auth., 208 Ark. 625, 187 S.W.2d 189 (1945).

The Urban Development Law does not violate this section. Rowe v. Housing Auth., 220 Ark. 698, 249 S.W.2d 551 (1952).

Residency Requirements.

School district residency policy did not violate teacher's rights of equal protection under this section. McClelland v. Paris Pub. Sch., 294 Ark. 292, 742 S.W.2d 907 (1988).

Section 6-18-203, permitting children or wards to enroll in either their home school district or the district where their parents or guardians teach, rests upon a rational basis and is not unconstitutional under this section of the constitution concerning equality in privileges and immunities. That which might facilitate a teacher's transportation of his children, or enables them to be nearer to the teacher, or to each other, during school hours, may well be deemed useful in alleviating problems which might otherwise distract a teacher or necessitate his withdrawal from active teaching. Love v. Hill, 297 Ark. 96, 759 S.W.2d 550 (1988).

Selective Prosecution.

Defendant circuit court judge failed to provide proof that the prosecutor charged him with attempting to evade or defeat a state tax based on an impermissible motive; elected officials were not members of a protected class for equal protection purposes, and there was no evidence that the prosecutor assigned to defendant's case was involved in the decisions to charge other persons with violations of § 26-18-201(a). Davis v. State, 94 Ark. App. 240, 228 S.W.3d 529 (2006).

Sex Offender Registration.

Section 12-12-919(a)(3), requiring lifetime registration as applied to defendant, did not violate his equal protection rights as there was a rational basis for treating sex offenders convicted under more than one case number differently than those convicted under a single case number. Individuals convicted of a subsequent sex offense under a second case number have committed more than one sex crime, and the General Assembly could have concluded that those individuals are more likely to reoffend; and the underinclusiveness of a particular provision does not make the provision unconstitutional. Ray v. State, 2017 Ark. App. 574, 533 S.W.3d 587 (2017).

Sodomy.

The portion of an Arkansas statute criminalizing specific acts of private, consensual sexual intimacy between persons of the same sex is an unconstitutional violation of Arkansas's Equal Rights Amendment. Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002).

Special Laws.

An act purporting to relieve county collectors for shortages in a certain year, where only one action has been filed and where the act is designed to apply to only one county, is unconstitutional as a special law. State ex rel. Attorney Gen. v. Lee, 193 Ark. 270, 99 S.W.2d 835 (1937).

Where the violation of an ordinance depended on whether two or more neighbors had filed a written petition, it was in conflict with this article of the Constitution. City of Springdale v. Chandler, 222 Ark. 167, 257 S.W.2d 934 (1953).

City ordinance which prohibited use of certain streets by heavy trucks but contained exception permitting residents to so use such streets to reach their homes did not amount to an unconstitutional discrimination based on residence alone as against a nonresident seeking to so use such streets for business purposes. House v. City of Texarkana, 225 Ark. 162, 279 S.W.2d 831 (1955).

Where the length of the line of the railroad sought to be removed has no fair or substantial relation to the stated object sought to be accomplished by the legislation, this section is violated. Ark. Commerce Comm'n v. Ark. & Ozarks Ry., 235 Ark. 89, 357 S.W.2d 295 (1962).

Award of workers' compensation benefits under provision for hernias rather than total disability did not create an unreasonable classification that was void under this section. Smith v. Riceland Food, 261 Ark. 10, 545 S.W.2d 604 (1977).

The rational basis test is used in reviewing government actions under this section since whether an act is special depends upon whether, by force of an inherent limitation, it arbitrarily separates some person, place, or thing from those upon which, but for such separation, it would operate. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983).

Statute of Limitation.

Statute barring actions for injury or death from faulty design or construction of improvements to real property against the persons furnishing such design or construction after four years does not violate this section by discriminating owners and materialmen as a vital distinction exists between the two groups. Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), appeal dismissed, 401 U.S. 901, 91 S. Ct. 868, 27 L. Ed. 2d 800 (1971).

This section was not violated by legislation providing 18-month limitation period for bringing claims for charges for certain medical services. HCA Medical Servs. of Midwest, Inc. v. Rodgers, 292 Ark. 359, 730 S.W.2d 229 (1987).

Taxation.

—Business.

A statute entitling veterans to engage in business without paying taxes for the privilege of so doing is unconstitutional as a grant of a privilege to a class of citizens. Edelmann v. City of Fort Smith, 194 Ark. 100, 105 S.W.2d 528 (1937).

Tobacco product distributors' equal protection claims concerning § 26-57-261 were dismissed where distributors were not required to pay more for their Arkansas sales than would a participating manufacturer. Grand River Enters. Six Nations, Ltd. v. Beebe, 418 F. Supp. 2d 1082 (W.D. Ark. 2006).

—Gasoline Tax.

To permit operators of trucks and buses for hire to enter the state and be exempted from paying taxes on the first 20 gallons of gasoline they use which they brought into the state is not an arbitrary discrimination. Thompson v. Continental S. Lines, 222 Ark. 108, 257 S.W.2d 375 (1953).

—Income Tax.

The imposition of a progressive income tax does not deny the equal protection of the laws. Stanley v. Gates, 179 Ark. 886, 19 S.W.2d 1000 (1929).

An income tax statute exempting corporations and not individuals from taxation on income derived from sources outside the state is neither arbitrary nor discriminatory. Dunklin v. McCarroll, 199 Ark. 800, 136 S.W.2d 675 (1940).

The court could reasonably conceive of lawful purposes for the state's classification scheme in providing tax exemptions for retirement income of government employees since the state's classification conferred a benefit upon public employees which was available to all workers of a certain calling and class throughout Arkansas, and this section was not violated. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983).

—Mass Communications.

A tax which discriminates between mass communicators delivering substantially the same service runs afoul of the constitution; thus, former provision of § 26-52-301, which levied a tax on cable television enterprises but did not tax the proceeds resulting from the “unscrambling” of satellite signals, a similar service, imposed a tax which could not pass muster. Medlock v. Pledger, 301 Ark. 483, 785 S.W.2d 202 (1990), aff'd in part, reversed in part, Leathers v. Medlock, 499 U.S. 439, 111 S. Ct. 1438, 113 L. Ed. 2d 494 (1991).

The legislature may have intended, in the enactment of a state sales tax on certain types of telecommunications service while excepting other in Acts 1987, No. 27, § 2, codified at § 26-52-301, to encourage large volume users of telephone service, i.e., Wide-area Telecommunications Service (WATS) subscribers, to remain or relocate in Arkansas. Such a basis for the legislation would be rationally related to achieving a legitimate governmental objective and, therefore, the tax is constitutional. Bosworth v. Pledger, 305 Ark. 598, 810 S.W.2d 918, cert. denied, Bosworth v. Leathers, 502 U.S. 995, 112 S. Ct. 617, 116 L. Ed. 2d 639 (1991).

—Property Transfers.

This section is not violated by an excise tax upon real estate transfers as equality requires only that the tax be collected impartially of all persons in like circumstances. Borchert v. Scott, 248 Ark. 1041, 460 S.W.2d 28 (1970).

—Road Tax.

A road tax may be imposed on persons of certain ages in certain districts without giving the privilege of doing road work in lieu thereof, without conferring a privilege or immunity on a class of citizens unequally. Harper v. Brooksher, 153 Ark. 480, 240 S.W. 729 (1922).

—Use Tax.

A statute providing for the taxation of wagons used for the delivery of coal oil imposes a discriminatory tax since a tax classification can not be based on use unless such use affords a substantial ground for distinction. Waters-Pierce Oil Co. v. City of Hot Springs, 85 Ark. 509, 109 S.W. 293 (1908).

—Vehicles for Hire.

Section providing a tax on vehicles for hire specifically provides that the tax is for the privilege of using public roads and highways, and legislative classification for the purpose of taxation of a privilege is proper as long as there shall not be a discrimination between persons in like situations and pursuing the same class of occupation. Potts v. McCastlain, 240 Ark. 654, 401 S.W.2d 220, cert. denied, 385 U.S. 946, 87 S. Ct. 319, 17 L. Ed. 2d 225 (1966).

Zoning.

The prohibition of the operation of any billiard hall or poolroom for hire within three miles of a school or church in certain counties is not the granting of a privilege or immunity not applying to all on the same terms. Caraway v. State, 143 Ark. 48, 219 S.W. 736 (1920).

Cited: Union Carbide & Carbon Corp. v. White River Distributors, 224 Ark. 558, 275 S.W.2d 455 (1955); Thornbrough v. Williams, 225 Ark. 709, 284 S.W.2d 641 (1955); Goodloe v. Goodloe, 253 Ark. 550, 487 S.W.2d 593 (1972); Swafford v. Tyson Foods, Inc., 2 Ark. App. 343, 621 S.W.2d 862 (1981) (decision prior to 1981 amendment); Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983); Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984); Camp v. State, 288 Ark. 269, 704 S.W.2d 617 (1986); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989); Medlock v. Pledger, 305 Ark. 610, 808 S.W.2d 785 (1991); Manatt v. State, 311 Ark. 17, 842 S.W.2d 845 (1992); Cook v. State, 321 Ark. 641, 906 S.W.2d 681 (1995); O'Neill v. State, 322 Ark. 299, 908 S.W.2d 637 (1995); Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996); Strother v. LaCroix Optical, 2013 Ark. App. 719 (2013).

§ 19. Perpetuities and monopolies.

Perpetuities and monopolies are contrary to the genius of a republic, and shall not be allowed; nor shall any hereditary emoluments, privileges or honors ever be granted or conferred in this State.

Research References

U. Ark. Little Rock L.J.

Survey — Property, 12 U. Ark. Little Rock L.J. 225.

U. Ark. Little Rock L. Rev.

Fifty-one Flowers: Post-Perpetuities War Law and Arkansas's Adoption of USRAP, 29 U. Ark. Little Rock L. Rev. 411.

Case Notes

Applicability.

This section does not apply to a governing body. Massongill v. County of Scott, 329 Ark. 98, 947 S.W.2d 749 (1997).

Monopolies.

The anti-monopoly provision in the Constitution is to be read and considered along with the police powers and public welfare powers; but when there is a clear showing of absence of the proper exercise of the police and welfare powers then, the questioned law should not be suffered to stand. North Little Rock Transp. Co. v. City of North Little Rock, 207 Ark. 976, 184 S.W.2d 52 (1944).

The Unfair Practices Act making it unlawful for one engaged in the distribution of a commodity of general use or consumption to discriminate between different sections, communities or cities, or portions thereof, with intent to destroy competition, by selling at a lower rate in one such section than in another after making allowance for difference in grade, quality or quantity and the actual cost of transportation, was a proper exercise of the police power and constitutional. Concrete, Inc. v. Arkhola Sand & Gravel Co., 230 Ark. 315, 322 S.W.2d 452 (1959).

Although the language of this section prohibits monopolies, it does not create a private cause of action. Baxley-Delamar Monuments, Inc. v. American Cem. Ass'n, 843 F.2d 1154 (8th Cir. 1988).

Where a tobacco products manufacturer which did not participate in a settlement between states and tobacco companies alleged that an amendment to § 26-57-261 implementing the settlement had the effect of causing or allowing participating companies to conduct their business as though they were part of an output cartel, to the extent that the amendment might foster monopolistic conduct, the amendment did not violate the state constitution since the regulatory scheme of which the amendment formed a part was created to serve the public interest in combating the serious health effects of smoking. Dos Santos, S.A. v. Beebe, 418 F. Supp. 2d 1064 (W.D. Ark. 2006).

Section 26-57-261 did not violate Ark. Const., Art. 2, § 19 where the emergency clause enacting the regulatory scheme showed that it was created to serve the public interest in protecting public health. Grand River Enters. Six Nations, Ltd. v. Beebe, 418 F. Supp. 2d 1082 (W.D. Ark. 2006).

—Common Carriers.

Monopolies in the field of common carriers are repulsive and unconstitutional as competition is mandatory for the best service of public convenience. North Little Rock Transp. Co. v. City of North Little Rock, 207 Ark. 976, 184 S.W.2d 52 (1944).

—Counties.

There is no legal authority that prevents a county from having the exclusive right to collect solid waste. Massongill v. County of Scott, 329 Ark. 98, 947 S.W.2d 749 (1997).

—Franchises.

A five-year franchise for limousine concession at airport does not violate this section where franchise holder is bound to provide service and there is not enough business for such service to be maintained on a competitive basis. Bridges v. Yellow Cab Co., 241 Ark. 204, 406 S.W.2d 879 (1966).

—Hospitals.

Complaint alleging conspiracy in that plaintiff's chief of staff was denied membership in county medical society, and thereby denied the right to become a member of the staff of certain other hospitals and prevented from receiving referrals of patients from other physicians, did not charge a violation of this section since no allegations were made tending to show the creation of a monopoly. Elizabeth Hosp. v. Richardson, 167 F. Supp. 155 (W.D. Ark. 1958), aff'd, 269 F.2d 167 (8th Cir.), cert. denied, 361 U.S. 884, 80 S. Ct. 155, 4 L. Ed. 2d 120 (1959).

—Liquor Licenses.

The county court has the discretion to grant or entirely refuse license to sell liquor; but, if some persons are licensed, other applicants may not be arbitrarily refused if they comply with the requirements of the statute. Ex parte Levy, 43 Ark. 42 (1884).

—Municipal Ordinances.

The municipal ordinance which requires that all printed matter, blank books, and stationery used by the city bear the union label of the Allied Printing Trades Council created a virtual monopoly in the city's printing business and cannot be reconciled with the controlling provisions of the Constitution and statutes. Upchurch v. Adelsberger, 231 Ark. 682, 332 S.W.2d 242 (1960).

A law demanding competition in the letting of public work is intended to secure unrestricted competition among bidders, and where the effect of an ordinance is to prevent or restrict competition and thus increase the cost of the work, it manifestly violates such law and is void, as are all proceedings had thereunder. Upchurch v. Adelsberger, 231 Ark. 682, 332 S.W.2d 242 (1960).

—Price Fixing.

The state legislature may prohibit foreign insurance companies from doing business within the state if they are members of any rate fixing combination anywhere in the world. Hartford Fire Ins. Co. v. State, 76 Ark. 303, 89 S.W. 42 (1905).

A statute vesting power to fix prices, wages, and hours for barber shops in a state board of health is unconstitutional within the meaning of this section. Noble v. Davis, 204 Ark. 156, 161 S.W.2d 189 (1942).

Statute fixing prices at which liquor could be sold was a valid exercise of the police power and did not violate this section. Gipson v. Morley, 217 Ark. 560, 233 S.W.2d 79 (1950).

—Sanitation Services.

A city is authorized to enter into proper exclusive contracts for sanitation services. Smith v. City of Springdale, 291 Ark. 63, 722 S.W.2d 569 (1987).

Ensuring adequate waste disposal resources was a valid exercise of the state's police power to protect public health, thus, a de facto monopoly, if it did exist, was necessary to carry out the Northwest Arkansas Regional Solid Waste Management District's statutory duties; further, its regulation requiring that solid waste be disposed at either in-district or out-of-state landfills, unless otherwise authorized by the district, did not violate this section. IESI AR Corp. v. Northwest Ark. Reg'l Solid Waste, 433 F.3d 600 (8th Cir. 2006).

—Taxi Companies.

Statute providing that the governing bodies of first class cities shall notify all taxicab operators of the filing of an application by another, giving them time to inaugurate additional required services and rejecting such application upon the furnishing of said services, were unconstitutional in that they created a monopoly. North Little Rock Transp. Co. v. City of North Little Rock, 207 Ark. 976, 184 S.W.2d 52 (1944).

—Zoning.

The refusal to rezone the property in question which was adjacent to property which was already zoned for business was unconstitional for creating a monopoly. City of Blytheville v. Thompson, 254 Ark. 46, 491 S.W.2d 769 (1973).

Perpetuities.

Where a defendant in the federal court claimed that the statute as applied to him violated this section of the Constitution, he raised Arkansas constitutional questions which had not been decided by the Arkansas Supreme Court, and the federal court therefore retained the case on the docket so that appropriate action could be commenced in the state court to determine these constitutional questions. Union Carbide & Carbon Corp. v. White River Distribs., Inc., 118 F. Supp. 541 (E.D. Ark. 1954).

Perpetuities are forbidden by this section. Roemhild v. Jones, 239 F.2d 492 (8th Cir. 1957); Broach v. City of Hampton, 283 Ark. 496, 677 S.W.2d 851 (1984).

This section forbids “perpetuities,” but it does not describe them; the description comes from common law. Otter Creek Dev. Co. v. Friesenhahn, 295 Ark. 318, 748 S.W.2d 344 (1988).

The rule against perpetuities is alive, well, and fully applicable to terminate interests where those interests do not vest within 21 years after some life in being at the time of the creation of the instrument; however, the rule has no application to reversionary interests, which remain in the transferor and heirs. Collins v. Church of God of Prophecy, 304 Ark. 37, 800 S.W.2d 418 (1990).

—Assessment Covenant.

Where the bill of assurance of property owners' association under which the land was purchased provided that the assessment covenant should remain outstanding for a term of 26 years and for successive ten year periods thereafter, until an instrument should be signed and recorded by the then owners of two-thirds of the lots or living units, such covenant did not constitute a perpetuity contrary to this section. Kell v. Bella Vista Village Property Owners' Ass'n, 258 Ark. 757, 528 S.W.2d 651 (1975).

—Options.

Deed reserving option to repurchase said land from the grantee if he should at any time offer the same for sale, at the same price and amount grantee is now paying for same, did not violate the rule against perpetutities where there was nothing to show that the parties intended the option to continue beyond the lifetime of grantee. Roemhild v. Jones, 239 F.2d 492 (8th Cir. 1957).

—Reversions.

Where the deed provided that the property shall revert to the heirs of the grantor when no longer used for school purposes, no interest being expressly reserved to grantor's wife, these words are clearly properly construed words of purchase rather than words of limitation since the condition did happen during the lifetime of the grantor's wife, and the common law rule against perpetuities is applicable. McCrory School Dist. v. Brogden, 231 Ark. 664, 333 S.W.2d 246 (1960).

Cited: Morley v. Berg, 218 Ark. 195, 235 S.W.2d 873 (1951); Union Carbide & Carbon Corp. v. White River Distributors, 224 Ark. 558, 275 S.W.2d 455 (1955); Lincoln v. Ark. Pub. Serv. Comm'n, 313 Ark. 295, 854 S.W.2d 330 (1993); Knight v. Martin, 2018 Ark. 280, 556 S.W.3d 501 (2018).

§ 20. Resident aliens — Descent of property.

No distinction shall ever be made by law, between resident aliens and citizens, in regard to the possession, enjoyment or descent of property.

Case Notes

In General.

An act denying to aliens incapable of becoming citizens the right to acquire, possess, or transfer real estate is unconstitutional. Applegate v. Lum Jung Luke, 173 Ark. 93, 291 S.W. 978 (1927).

§ 21. Life, liberty and property — Banishment prohibited.

No person shall be taken, or imprisoned, or disseized of his estate, freehold, liberties or privileges; or outlawed, or in any manner destroyed, or deprived of his life, liberty or property; except by the judgment of his peers, or the law of the land; nor shall any person, under any circumstances, be exiled from the State.

Research References

ALR.

Validity and application of statute authorizing forfeiture of use or closure of real property from which obscene materials have been disseminated or exhibited. 25 A.L.R.4th 395.

Forfeiture of money to state or local authorities based on its association with or proximity to other contraband. 38 A.L.R.4th 496.

Conviction of offense associated with property seized necessary to support forfeiture. 38 A.L.R.4th 515.

Ark. L. Rev.

Leflar, Liberty and Death: Advance Health Care Directives and the Law of Arkansas, 39 Ark. L. Rev. 375.

LaToya J. Alexander, Case Note: Arkansas Department of Human Services v. Cole: Another Step Toward Same Sex Marriage in Arkansas?, 66 Ark. L. Rev. 527 (2013).

C.J.S. 16A C.J.S., Constitutional Law, § 721 et seq.

U. Ark. Little Rock L. Rev.

Note: Constitutional Law — Privacy and Equal Protection — Arkansas Joins Other States in a Revival of State Constitutions as Guardians of Individual Rights, Establishing New Protections for Arkansas Gays and Lesbians, Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), 25 U. Ark. Little Rock L. Rev. 681.

Case Notes

Exile from State.

The constitutional provision against exile of persons from the state is not violated by a statute allowing the Governor to grant pardons on condition that the convicted person leave the state, never to return. Ex parte Hawkins, 61 Ark. 321, 33 S.W. 106 (1895).

No statute confers the power upon judges in passing sentence to require that defendant leave the state, neither does the Constitution grant such power. Millsaps v. Strauss, 208 Ark. 265, 185 S.W.2d 933 (1945).

A condition of probation would be stricken as improper court-ordered exile where the condition required that the appellant leave the state for seven years, except for two specified return trips each year of three days each. Reeves v. State, 339 Ark. 304, 5 S.W.3d 41 (1999).

Judgment of Peers.

The suspension of a county or township officer against whom an indictment or presentment is filed does not deprive the officer of property without the judgment of his peers or the law of the land. Sumpter v. State, 81 Ark. 60, 98 S.W. 719 (1906).

Statutes permitting the court to fix the punishment under certain circumstances are not unconstitutional. Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960).

This section and Ark. Const., Art. 2, §§ 7 and 10 are not to be interpreted to prevent a court from fixing punishment in certain cases. Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988).

—Minors.

The trial by the juvenile court of a minor is not a violation of his constitutional rights. Martin v. State, 213 Ark. 507, 211 S.W.2d 116 (1948).

The committing of a minor to the boys industrial school for delinquency is not detention, a punishment for crime, but discipline, education, and reformation. Martin v. State, 213 Ark. 507, 211 S.W.2d 116 (1948).

Judicial Powers.

Defendant's argument that the prohibition of Ark. Sup. Ct. & Ct. App. R. 5-2, prohibiting citation to unpublished opinions, violated his right of due process under Ark. Const., Art. 2, §§ 8 and 21, was rejected because the federal judicial power clause had never before been construed to limit courts in the manner in which they conduct their business, and the same could be said for Arkansas's judicial article. Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2003).

Opportunity to Be Heard.

A statute regulating the sale of firearms does not deprive any man of his property, or of a privilege not subject to restraints prescribed by the state for the common good. Dabbs v. State, 39 Ark. 353 (1882).

The section of the anti-trust act which provides that a defendant's answer be stricken out under certain circumstances relates to a matter of procedure and does not violate the Constitution. Hammond Packing Co. v. State, 81 Ark. 519, 100 S.W. 407 (1907), aff'd, 212 U.S. 322, 29 S. Ct. 370, 53 L. Ed. 530 (1909).

If an act repealing certain acts and providing for the allowance of claims against the district involved be presumed a legislative assessment of benefits exceeding the cost of the improvement, then the act of the legislature in abolishing the district and burdening property owners with preliminary expenses is unconstitutional as depriving property owners of their property without due process of law. Thibault v. McHaney, 119 Ark. 188, 177 S.W. 877 (1915).

An act providing for the appointment of appraisers whose appraisal of land taken for a street is conclusive as to the value of property taken, and without appeal, is unconstitutional as taking property without due process. Hoxie v. Gibson, 155 Ark. 338, 245 S.W. 332 (1922).

Statute providing for extinguishing estates tail did not violate this section. Anderson v. Webb, 241 Ark. 233, 406 S.W.2d 871 (1966).

Repossession of collateral by a secured party does not violate any of the rights guaranteed by this section where the repossession procedure arises out of the express written agreement of the parties and where the collateral is repossessed peacefully. Teeter Motor Co. v. First Nat'l Bank, 260 Ark. 764, 543 S.W.2d 938 (1976).

Fundamental requirements of due process require the opportunity to be heard at a meaningful time and a meaningful place before a person may be deprived of life, liberty, or property. Franklin v. State, 267 Ark. 311, 590 S.W.2d 28 (1979).

Where in a divorce action the husband did not have prior notice that he might have to post a performance bond, nor was he permitted the right to a hearing on the posting of the bond, the trial court lacked jurisdiction to require him to post a performance bond of $4,000 before leaving the courtroom since, before the husband could be denied his rights, he had to be given notice and an opportunity to be heard. Godwin v. Godwin, 268 Ark. 364, 596 S.W.2d 695 (1980).

Circuit court properly denied a voter's disqualification petition and granted a judicial candidate's third-party complaint because she was an eligible candidate under the Arkansas Constitution where the alleged administrative suspension of her as a delinquent lawyer was done without notice or a hearing in violation of her state and federal due process rights. Williams v. Martin, 2014 Ark. 210 (2014).

In an Arkansas Civil Rights Act case, the company's due process rights in the operation of the apartment complex that it owned were violated because it was deprived of its property interest by the fire chief's order that it cease its operations and that its tenants vacate the property; the fire chief was acting under color of the fire code in issuing that order; and the city did not provide any pre- or postdeprivation mechanism for the company to challenge the closure. City of Little Rock v. Alexander Apts., LLC, 2020 Ark. 12, 592 S.W.3d 224 (2020).

In an Arkansas Civil Rights Act case, the city violated the tenants' due process rights because the tenants had a property interest in the exclusive possession of their apartments; the letter and notice instructing them to vacate by, and that utilities would be turned off on, December 28, 2015, interfered with that exclusive possession; and the tenants were not provided with any pre- or postdeprivation mechanism for challenging their apartments' closure. City of Little Rock v. Alexander Apts., LLC, 2020 Ark. 12, 592 S.W.3d 224 (2020).

Price Fixing.

Statute fixing prices at which liquor could be sold was a valid exercise of the police power and did not violate this section. Gipson v. Morley, 217 Ark. 560, 233 S.W.2d 79 (1950).

Taking of Property.

The seizure of a gun was not a taking proscribed by the Constitution where the gun was evidence of a violation of the law. Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999).

Insureds had no protected property right in any coverage beyond the lapse date and, thus, there was no protected property or liberty interest that could have given rise to a due process claim, as contended by the insureds, who argued that their rights were violated when the insurer failed to give them actual notice of non-renewal; there was no state action because the action was taken by an insurance company, and the use of the United States mail to give notice under § 23-89-306 did not rise to the level of state action. Johnson v. Encompass Ins. Co., 355 Ark. 1, 130 S.W.3d 553 (2003).

Where an amendment to a statute implementing a settlement between states and tobacco companies required a non-participating manufacturer to pay amounts in escrow pending any finding of future liability, the post-deprivation remedy of either returning the escrowed funds at the end of 25 years or litigation if the right to return was disputed was constitutionally sufficient. Dos Santos, S.A. v. Beebe, 418 F. Supp. 2d 1064 (W.D. Ark. 2006).

Where a tobacco products manufacturer which did not participate in a settlement between states and tobacco companies alleged that an amendment to a statute implementing the settlement improperly eliminated a refund of the manufacturer's escrowed overpayments in the settlement account for the prior year, the retroactive application of the amendment properly stated a claim for violation of the manufacturer's constitutional right to substantive due process. Dos Santos, S.A. v. Beebe, 418 F. Supp. 2d 1064 (W.D. Ark. 2006).

Cited: McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989); Honor v. Yamuchi, 307 Ark. 324, 820 S.W.2d 267 (1991); Johnson v. State, 328 Ark. 526, 944 S.W.2d 115 (1997); Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002); In re Brandenburg, 83 Ark. App. 298, 126 S.W.3d 732 (2003).

§ 22. Property rights — Taking without just compensation prohibited.

The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.

Research References

ALR.

Validity and construction of statute or ordinance establishing rent control benefit or rent subsidy for elderly tenants. 5 A.L.R.4th 922.

Assemblage or plottage as factor affecting value in eminent domain proceedings. 8 A.L.R.4th 1202.

Measure and elements of lessee's compensation for condemnor's taking or damaging of leasehold, generally. 17 A.L.R.4th 337.

Zoning regulations limiting use of property near airport as taking of property. 18 A.L.R.4th 542.

Local use zoning of wetlands or flood plain as taking without compensation. 19 A.L.R.4th 756.

Sufficiency of condemnor's negotiations required as preliminary to taking in eminent domain. 21 A.L.R.4th 765.

Possibility of overcoming specific obstacles as element in determining existence of necessary public use. 22 A.L.R.4th 840.

Airport operations or flight of aircraft as constituting taking or damaging of property. 22 A.L.R.4th 863.

Public improvements damages resulting from temporary conditions incident to public improvements or repairs as compensable taking. 23 A.L.R.4th 674.

Validity and application of statute authorizing forfeiture of use or closure of real property from which obscene materials have been disseminated or exhibited. 25 A.L.R.4th 395.

Compensability of loss of view from owner's property — state cases. 25 A.L.R.4th 671.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific owner. 26 A.L.R.4th 68.

Public taking of sports or entertainment franchise or organization as taking for public purpose. 30 A.L.R.4th 1226.

Towing, impounding, or destruction of motor vehicles parked or abandoned on streets or highways. 32 A.L.R.4th 728.

Measure and elements of damages or compensation for condemnation of public transportation system. 35 A.L.R.4th 1263.

Forfeiture of money to state or local authorities based on its association with or proximity to other contraband. 38 A.L.R.4th 496.

Conviction of offense associated with property seized necessary to support forfeiture. 38 A.L.R.4th 515.

Seizure of property as evidence in criminal prosecution or investigation as compensable taking. 44 A.L.R.4th 366.

Elements and Measure of Compensation in Eminent Domain Proceeding for Temporary Taking of Property. 49 A.L.R.6th 205.

Zoning Scheme, Plan, or Ordinance as Temporary Taking. 55 A.L.R.6th 635.

Determination Whether Exaction for Property Development Constitutes Compensable Taking. 8 A.L.R.7th Art. 7 (2015).

Fifth Amendment Takings Claims Based on Conversion of Rail Corridor to Recreational Trail Pursuant to National Trails System Act (16 U.S.C. §§ 1241 et seq.), 28 A.L.R. Fed. 3d Art. 6 (2018).

Am. Jur. 16B Am. Jur. 2d, Constitutional Law, § 628 et seq.

26 Am. Jur. 2d, Em. Dom., § 6 et seq.

Ark. L. Notes.

Carl J. Circo, Land Use Impact Fees: Does Koontz v. St. Johns River Water Management District Echo an Arkansas Philosophy of Property Rights?, 2014 Ark. L. Notes 1626.

Ark. L. Rev.

Regulation of Urban Non-Conforming Uses in Arkansas: Limitation and Termination, 16 Ark. L. Rev. 270.

Recent Developments in Eminent Domain in Arkansas, 19 Ark. L. Rev. 121.

Eminent Domain — Highway Location and Existing Restrictive Covenants, 19 Ark. L. Rev. 183.

State Immunity and the Arkansas Claims Commission, 21 Ark. L. Rev. 180.

Reimbursement of Attorney's Fees in Arkansas upon Dismissal of Condemnation Proceedings, 22 Ark. L. Rev. 181.

Zoning — The Expanding Business District Doctrine in Arkansas: An Obstacle to Land Use Planning, 28 Ark. L. Rev. 262.

Acquisition of Public Recreational Access to Privately Owned Property: Devices, Problems, and Incentives, 29 Ark. L. Rev. 514.

Riggs, Case Note: Zoning — Termination of Preexisting Nonconforming Uses, 32 Ark. L. Rev. 797.

Wright, Damages or Compensation for Unconstitutional Land Use Regulations, 37 Ark. L. Rev. 612.

“Taking” a Look at Inverse Condemnation in Arkansas: Robinson v. City of Ashdown, 44 Ark. L. Rev. 519.

Note, Compound Pre-Judgment Interest as an Element of Just Compensation: Wilson v. City of Fayetteville, 47 Ark. L. Rev. 937.

The New Judicial Federalism Takes Root in Arkansas, 58 Ark. L. Rev. 883.

Post-Kelo Determination of Public Use and Eminent Domain in Economic Development Under Arkansas Law, 59 Ark. L. Rev. 43.

Lynn Foster, The Hands of the State: The Failure to Vacate Statute and Residential Tenants’ Rights In Arkansas, 36 U. Ark. Little Rock L. Rev. 1 (2013).

C.J.S. 29A C.J.S., Em. Dom., § 3 et seq.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Public Law, 1 U. Ark. Little Rock L.J. 230.

Owen, Note: Local Government — Municipal Corporation — Annexation Invalidation, 2 U. Ark. Little Rock L.J. 105.

Survey, Attorney and Client, 14 U. Ark. Little Rock L.J. 257.

Note, Constitutional Law — Indigent Defense — Arkansas Statutory Fee and Expense Limitations Unconstitutional. Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991), 14 U. Ark. Little Rock L.J. 595.

Case Notes

In General.

The right of eminent domain is inherent in the government but the legislature is bound to provide a fair compensation to the individual whose property is taken and, until a just indemnity is afforded, the power cannot be legally exercised. Ex parte Martin, 13 Ark. 198 (1853).

Private property cannot be taken for private use without consent of the owner, nor for public use without providing for just compensation. Roberts v. Williams, 15 Ark. 43 (1854).

The sovereign right of a state to condemn private property for public use involves the correlative right of an individual to just compensation for the property thus condemned. Young v. Gurdon, 169 Ark. 399, 275 S.W. 890 (1925).

It is the actual taking or damage of lands for public use which must be compensated under the Constitution, and not a plan to take or damage the land. Watson v. Harris, 214 Ark. 349, 216 S.W.2d 784 (1949); Southwestern Water Co. v. Merritt, 224 Ark. 499, 275 S.W.2d 18 (1955).

It is not necessary that the property should be completely taken in order to bring the case within the protection of the constitutional guaranty, it is only necessary that there be such serious interruption of the common and necessary use of the property as to interfere with the rights of the owner. Shellnut v. Ark. State Game & Fish Comm'n, 222 Ark. 25, 258 S.W.2d 570 (1953).

This section does not mean that an individual is constitutionally guaranteed the right to do with such property as he wishes in all circumstances. The police power and health and welfare doctrines clearly permit restrictions on property use so as to prevent detriment to the rights of the public, and the private use of property can be restricted by zoning regulations. Richardson v. City of Little Rock Planning Comm'n, 295 Ark. 189, 747 S.W.2d 116 (1988).

Adverse Possession.

Where a railroad company acquired a right of way by prescription merely, its title is limited in extent to the land actually taken. Little Rock & Fort Smith Ry. v. Greer, 77 Ark. 387, 96 S.W. 129 (1906).

Where an owner permits what might otherwise have been a private road to be used as a school bus route for upwards of ten years and permits the county to repair and maintain the road for a comparable period, he cannot be heard to complain that his property has been taken without compensation when the county judge declares the road to be a county road pursuant to statute and the declaration of public usage simply recognizes what the owner's actions have already created by sufferance. Johnson v. Wylie, 284 Ark. 76, 679 S.W.2d 198 (1984).

Annexation.

Statute is not unconstitutional on the ground that it did not provide for notice in annexation proceedings. Hamilton v. Johnson County Bd. of Educ., 223 Ark. 803, 268 S.W.2d 873 (1954).

The annexation of lands for purposes of taxation only is prohibited by the Constitution. Saunders v. City of Little Rock, 262 Ark. 256, 556 S.W.2d 874 (1977), overruled in part, Chappell v. City of Russellville, 288 Ark. 261, 704 S.W.2d 166 (1986).

Automobile Graveyards.

Statute which imposed a penalty for each day a person kept or maintained five nonoperative automobiles within one-half mile of a paved highway regardless of whether they could be seen or not was arbitrary and unreasonable. Bachman v. State, 235 Ark. 339, 359 S.W.2d 815 (1962).

Compensation.

The owner of land taken for railroad purposes is entitled to compensation immediately for all damages sustained, present and prospective. Little Rock & Fort Smith Ry. v. Greer, 77 Ark. 387, 96 S.W. 129 (1906).

The effect of the passage of an act requiring the payment of a fine by a railroad for its failure to erect a depot where the erection is impossible is to arbitrarily take property without just compensation. State v. St. Louis, Iron Mountain & S. Ry., 85 Ark. 422, 108 S.W. 508 (1908).

The condemnation of land for highway purposes by a county court creates ipso facto a valid claim for compensation in favor of the landowner against the county. Independence County v. Lester, 173 Ark. 796, 293 S.W. 743 (1927).

All damages incident to the construction of a sewer system and the digging of outlet ditches may be recovered by the property owners damaged. Sewer Improv. Dist. No. 1 v. Jones, 199 Ark. 534, 134 S.W.2d 551 (1939).

In condemnation cases the landowner is limited to five items of damage: (1) the fair market value of the land appropriated; (2) damage which the construction of the levee will cause by the obstruction of natural drainage; (3) inconvenience of passing over the levee, ditch, drain or canal; (4) the value of crop and houses on the right of way injured or destroyed; and (5) damages shall be paid for any easement or flowage right or increased use or servitude. Board of Dirs. v. Morledge, 231 Ark. 815, 332 S.W.2d 822 (1960).

The landowner is entitled to damages as of the date when the act of taking is complete, that is, when his lands are actually entered and taken under the court order. Ark. State Hwy. Comm'n v. Dobbs, 232 Ark. 541, 340 S.W.2d 283 (1960).

When the housing authority forces a property owner into state court to ask a jury to fix the price it must pay the owner and chooses to renege merely because the jury verdict is not to its liking, the trial court has the inherent right to require the housing authority to reimburse the owner. Housing Auth. v. Amsler, 239 Ark. 592, 393 S.W.2d 268 (1965).

Circuit court properly denied the Arkansas Game and Fish Commission's (AGFC) motion to dismiss because there was no basis for the assertion of sovereign immunity based on the fact that a plaintiff could not seek monetary damages from the State; while the complaint stated that AGFC had to compensate the owners, the prayer for relief did not include a request for monetary damages, and the owners stated in their brief that they were not seeking monetary damages. Ark. Game & Fish Comm'n v. Heslep, 2019 Ark. 226, 577 S.W.3d 1 (2019).

—Attorney’s Fees and Costs.

Landowners whose property was condemned by the State Highway Commission and who litigated the property values determined by the commission had no constitutional right to recover attorney’s fees as part of their compensation in the absence of an authorizing statute. Ark. State Highway Comm'n v. Johnson, 300 Ark. 454, 780 S.W.2d 326 (1989).

In a condemnation action, the property owners incurred expenses in successfully defending the appeal. To place them in the same position they were in prior to the taking by the water district, the appellate court granted their request for attorney's fees and costs that were incurred during their defending of the appeal. Beaver Water Dist. v. Garner, 102 Ark. App. 188, 283 S.W.3d 595 (2008).

—Compensation of Court-Appointed Counsel.

The expense and fee caps, contained in § 16-92-108 [repealed], imposed upon court-appointed attorneys who represent indigent clients accused of crime are unconstitutional. Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991).

The statutory limitation of expenses in the sum of $100.00, pursuant to § 16-92-108 [repealed], did not provide the necessary funds for the clients' defense and it would have constituted a taking to force the attorneys to finance these expenses out of their own pockets in order to provide effective assistance of counsel. Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991).

—Contribution.

The city would be liable for piling trees on plaintiff's property since the city cannot damage private property without paying just compensation and the contractor was liable as a joint tortfeasor if he negligently piled the trees on the property and the trees had not been removed. Waldron v. Huston, 235 Ark. 553, 361 S.W.2d 556 (1962).

—Divided Ownership.

In deciding “just compensation” when there is a divided ownership in property in the condemnation suit, it is plain that a lease may be so advantageous to both parties that the combined market value of their separate estates exceeds what the land would be worth if the lease had not been made, thus, the “whole” of single ownership is not necessarily the “whole” of separate ownerships. Ark. State Hwy. Comm'n v. Fox, 230 Ark. 287, 322 S.W.2d 81 (1959).

—Interest.

Under eminent domain proceedings just compensation includes interest from the date of entry. Ark. State Hwy. Comm'n v. Stupenti, 222 Ark. 9, 257 S.W.2d 37 (1953).

For case discussing issue of whether just compensation under the Arkansas Constitution includes compound interest in land condemnation cases, see Wilson v. City of Fayetteville, 310 Ark. 154, 835 S.W.2d 837 (1992), modified on reh’g, 310 Ark. 164-A, 838 S.W.2d 366 (1992).

Where there was no need to enter the land to accomplish an objective and thus there was no actual entry onto the land, the date of taking was the date the condemnation was filed and the property valued, and interest was due therefrom. Board of Comm'rs v. Rollins, 57 Ark. App. 241, 945 S.W.2d 384 (1997).

—Just Compensation.

The words just compensation as used within the constitutional provision mean full compensation. Ark. State Hwy. Comm'n v. Stupenti, 222 Ark. 9, 257 S.W.2d 37 (1953).

Although the majority of owners of a private water line voted in favor of selling it to a city for non-interest bearing second mortgage bonds payable solely from water revenues of the city, forcing the opposed minority to accept such offer would have violated their right to just compensation for their property. Partlow v. Keasler, 250 Ark. 219, 464 S.W.2d 589 (1971).

Jury verdict as to just compensation was not contrary to the evidence presented at trial and was not insufficient to indemnify landowner. Baumeister v. City of Ft. Smith, 23 Ark. App. 102, 743 S.W.2d 396 (1988).

—Manner of Payment.

The prohibition of the taking of land without compensation contemplated the payment in the usual method, which, in the case of demands against a county, is by warrant on the treasury. Barton v. Edwards, 120 Ark. 239, 179 S.W. 354 (1915).

Payment for lands taken for highway purposes or damaged incidentally must be from revenues of the fiscal year in which the obligation accrues. Miller County v. Beasley, 203 Ark. 370, 156 S.W.2d 791 (1941).

Power of the county to provide for payment of compensation to landowner whose land is condemned for highway purposes is limited by amendment No. 10 of the Constitution, which prohibits making of such payment except from current revenues coming in during the year in which the order of condemnation is entered, or possibly during the year in which the land is actually taken, and power of county to provide compensation is also limited by this section, which prohibits taking of private property for public use without just compensation. Lee County v. Holden, 82 F. Supp. 353 (E.D. Ark. 1949).

—Market Value.

The market value of property taken for a public use is to be determined from its availability for all valuable purposes. Thus, in an action to determine the value of property taken for a right of way of a railroad, it is competent to show its advantageous location for railroad purposes. Gurdon & Fort Smith R.R. v. Vaught, 97 Ark. 234, 133 S.W. 1019 (1911).

Compensation for land taken by condemnation proceedings should be measured by the fair cash market value. Rinke v. Union Special School Dist. No. 19, 174 Ark. 59, 294 S.W. 410 (1927).

The market value of the property taken for public use is to be determined by its availability for all valuable purposes. Board of Dirs. v. Morledge, 231 Ark. 815, 332 S.W.2d 822 (1960).

The measure of damages for the taking of private property for highway purposes is the difference in the fair market value of the lands immediately before the taking and immediately after, less any enhancement in value resulting from the taking; in arriving at before and after value of the lands, a jury may consider every element that can fairly enter into the question of market value and which a businessman of ordinary prudence would consider before purchasing the property. Barnes v. Ark. State Hwy. Comm'n, 10 Ark. App. 375, 664 S.W.2d 884 (1984).

—Measure of Damages.

Injury to personal property is not an element of damages. Kansas City S. Ry. v. Anderson, 88 Ark. 129, 113 S.W. 1030 (1908).

The determination of the value of land taken by eminent domain is a question for the jury. Fort Smith & Van Buren Dist. v. Scott, 103 Ark. 405, 147 S.W. 440 (1912).

Where statute limits the amounts of damage for obstruction of landowner's natural drainage to an amount not to exceed the cost of artificial drainage, it is invalid since it fails to provide for just compensation. Staub v. Mud Slough Drainage Dist. No. 1, 216 Ark. 706, 227 S.W.2d 140 (1950).

The measure of damages for taking of land adjacent to highway is the value of the land taken plus damage to the land not taken less accruing benefits. Clark County v. Mitchell, 223 Ark. 404, 266 S.W.2d 831 (1954).

Net profit of a business operated on the damaged land is not a proper factor for consideration by the jury in assessing the damages. Hot Spring County v. Crawford, 229 Ark. 518, 316 S.W.2d 834 (1958).

In condemnation proceedings, the determination of the damage is to be measured by what the property was reasonably worth before the taking and what the remainder of the property is worth after the taking. Board of Dirs. v. Morledge, 231 Ark. 815, 332 S.W.2d 822 (1960).

Private property may not be damaged or appropriated for any public use by any agency, whether state or municipal, without just compensation, which is the fair market value of the property involved. Burford v. Upton, 232 Ark. 456, 338 S.W.2d 929 (1960); Collier v. City of Springdale, 733 F.2d 1311 (8th Cir.), cert. denied, 469 U.S. 857, 105 S. Ct. 186, 83 L. Ed. 2d 120 (1984).

In arriving at the purchase price or the market price of condemned leased property, the use of the premises for agricultural purposes was at most only incidental to the market price, and the real basis was each respective ownership. Ark. State Hwy. Comm'n v. Polk, 250 Ark. 377, 465 S.W.2d 671 (1971).

—Negligence.

Where property is taken for public use, districts are not liable for damage resulting from negligence of those acting for the public. Gordon v. Camden Curb & Gutter Dist. No. 1, 172 Ark. 94, 287 S.W. 761 (1926).

—Prior Payment.

If an adequate remedy exists for the landowner, a railroad may enter upon land required for a right of way before the assessment and payment of compensation. Cairo & Fulton R.R. v. Turner, 31 Ark. 494 (1876).

A county must be able to pay claims resulting from condemnation proceedings before engaging therein. Independence County v. Lester, 173 Ark. 796, 293 S.W. 743 (1927).

State highway commission may not enter into possession of private property under the right of eminent domain without first compensating the owner for damages sustained. Ark. State Hwy. Comm'n v. Partain, 192 Ark. 127, 90 S.W.2d 968 (1936).

A condemnation judgment where the state assumed payment of bonds secured by a mortgage on a toll bridge is not void because it does not provide for the payment of the bondholders before taking the property. White River Bridge Corp. v. State, 192 Ark. 485, 92 S.W.2d 856 (1936).

Where property has been taken without the owner first being compensated for such taking, the owner may not coerce compensation by retaking the property, but is left without a remedy. Federal Land Bank v. Ark. State Hwy. Comm'n, 194 Ark. 616, 108 S.W.2d 1077 (1937).

An order condemning lands for public irrigation purposes should be granted to a corporation even though its assets are not at that time sufficient to pay for later damages to the land because the corporation cannot enter on the land until the compensation has been paid or secured. Southwestern Water Co. v. Merritt, 224 Ark. 499, 275 S.W.2d 18 (1955).

Advance payment is required as a condition precedent for taking land under an eminent domain proceeding. Ark. State Hwy. Comm'n v. Rich, 235 Ark. 858, 362 S.W.2d 429 (1962).

— —Enjoining Entry.

Adjacent property owners may enjoin viaduct construction when tender of payment for damages is not properly made. Ark. State Hwy. Comm'n v. Partain, 192 Ark. 127, 90 S.W.2d 968 (1936).

A property owner may not sue the state or highway commission for damages but may restrain the taking of property until damages are paid or provisions made for payment. Ark. State Hwy. Comm'n v. Kincannon, 193 Ark. 450, 100 S.W.2d 969 (1937); Federal Land Bank v. Ark. State Hwy. Comm'n, 194 Ark. 616, 108 S.W.2d 1077 (1937).

Entry upon condemned land affords the property owner an opportunity to exact payment or a guaranteeing deposit, and if neither is forthcoming, to seek an injunction; but if the owner allows the improvement to proceed, he must seek recovery from the county's credit from revenues for the current year. Ark. State Hwy. Comm'n v. Bush, 195 Ark. 920, 114 S.W.2d 1061 (1938); Miller County v. Beasley, 203 Ark. 370, 156 S.W.2d 791 (1941).

Where state highway commission undertakes to appropriate land under condemnation decree, the owner has the right under the constitution, if the financial condition of the county is such that he may not receive the compensation from the county, to go into chancery and enjoin the appropriation of the land until the amount of compensation is agreed upon and either paid or secured. Lee County v. Holden, 82 F. Supp. 353 (E.D. Ark. 1949).

Action of trial court in issuing temporary restraining order against state highway commission restraining the letting of a contract for construction of a viaduct for which city was to acquire right-of-way was proper upon allegation of landowners that city was without funds to pay the damages of acquiring such right-of-way. Keith v. Ark. State Hwy. Comm'n, 225 Ark. 86, 279 S.W.2d 292 (1955).

—Property Not Taken.

The reduction of value of property is the taking thereof and an owner whose property has been damaged but not physically taken has the same right to compensation as the owner whose property has been actually occupied. Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 20 L. Ed. 557 (1871); Little Rock & Fort Smith Ry. v. Greer, 77 Ark. 387, 96 S.W. 129 (1906); Ark. State Hwy. Comm'n v. Kincannon, 193 Ark. 450, 100 S.W.2d 969 (1937).

The owner of property abutting a street is entitled to recover compensation for damage done to the property in lowering the grade of the street. Little Rock & Fort Smith Ry. v. Greer, 77 Ark. 387, 96 S.W. 129 (1906); Dickerson v. Town of Okolona, 98 Ark. 206, 135 S.W. 863 (1911); Hot Spring County v. Bowman, 229 Ark. 790, 318 S.W.2d 603 (1958).

When a railway condemned a right of way through the appellee's land, damages may be awarded for the value of the land and damages, if any, to the balance of the appellee's land. Fort Smith Light & Traction Co. v. Schulte, 109 Ark. 575, 160 S.W. 855 (1913).

The pollution of air over private property by offensive odors escaping from a septic tank, which impairs the land as residential property, is damage within the constitutional prohibition. Sewer Improv. Dist. No. 1 v. Fiscus, 128 Ark. 250, 193 S.W. 521 (1917).

A landowner whose home was surrounded by a new levee may recover for the market value of the land actually taken, damages sustained because of inconvenience and obstruction of drainage, and also for damages to crops and his home. Miller Levee Dist. No. 2 v. Wright, 195 Ark. 295, 111 S.W.2d 469 (1937).

The owner of land through which sewage ditches are dug is entitled to damages to extent that effluvium diminished the value of the land. Sewer Improv. Dist. No. 1 v. Jones, 199 Ark. 534, 134 S.W.2d 551 (1939).

The operation of a zoning ordinance to reduce the value of property by restricting its use is not the constitutionally prohibited taking of property, and compensation need not be made. Little Rock v. Sun Bldg. & Developing Co., 199 Ark. 333, 134 S.W.2d 582 (1939).

Violation of restrictive covenant in residential area by proposed cloverleaf interchange upon highway would not render state liable for decreased value of adjoining landowner's property caused by completion of the interchange on adjacent land which had been appropriated since the owners would have had no right of action otherwise. Ark. State Hwy. Comm'n v. McNeill, 238 Ark. 244, 381 S.W.2d 425 (1964).

The imposition of the cost of screening appellee's junkyard was a deprivation of his vested property rights without just compensation and was unconstitutional as applied to him. Ark. State Hwy. Comm'n v. Turk's Auto Corp., 254 Ark. 67, 491 S.W.2d 387 (1973).

There was no compensable taking, appropriation, or damage where residential properties were devalued because the county had built a jail in the neighborhood. Minton v. Craighead County, 304 Ark. 141, 800 S.W.2d 707 (1990).

—Reduction in Value.

Where testing under § 2-40-801 et seq., governing equine testing, caused a reduction in the value of defendant's horse but not a total diminution of value, there was no unconstitutional taking. Winters v. State, 301 Ark. 127, 782 S.W.2d 566 (1990).

—Signs and Billboards.

Where a provision of an ordinance governing signs stated that existing, nonconforming signs would be amortized by the city over a seven-year period, such provision amounted to a taking of property without just compensation in violation of this section. City of Fayetteville v. S & H, Inc., 261 Ark. 148, 547 S.W.2d 94 (1977).

There is no reason to treat the loss of a profit generated by a competitive monopoly on nonconforming billboards any differently than the loss of the asset; the principle of amortization rests on the reasonable exercise of the police power, and the financial detriment imposed upon a property owner by the reasonable exercise of the police power does not constitute the taking of private property within the inhibition of the Constitution. Donrey Communications Co. v. City of Fayetteville, 280 Ark. 408, 660 S.W.2d 900 (1983), cert. denied, 466 U.S. 959, 104 S. Ct. 2172, 80 L. Ed. 2d 555 (1984).

Trial court erred in awarding summary judgment to the Arkansas State Highway Commission in its condemnation action against a lessee that had a billboard on the condemned property where the facts were not sufficiently developed to make a ruling as to whether the income that the lessee sought to recover was business income or rental income. Lamar Advantage Holding Co. v. Ark. State Hwy. Comm'n, 369 Ark. 295, 253 S.W.3d 914 (2007).

—Validity of Appropriation.

Where Fish and Game Commission was granted funds by the legislature for preserving wildlife, and commission issued a voucher within two years from date of appropriation and paid same into court, and project was approved by a federal agency, the Supreme Court will not determine whether appropriation act was invalid due to want of specific words of appropriation, or whether requirement for federal agency approval was likewise indefinite, as compensation for property to be taken for game preserve was adequately provided for as required by Constitution. W.R. Wrape Stave Co. v. Ark. State Game & Fish Comm'n, 215 Ark. 229, 219 S.W.2d 948 (1949).

—Value Enhanced.

Where the public use for which a portion of land is taken makes the balance more valuable than the entire land before taking, the owner has received just compensation. Such benefit must be local, peculiar and special to the owner's land. City of Paragould v. Milner, 114 Ark. 334, 170 S.W. 78 (1914); Cate v. Crawford County, 176 Ark. 873, 4 S.W.2d 516 (1928).

The general rule, that the owner of land which is enhanced in value by the taking of a part for public use has received just compensation, does not apply in a case where assessments were made according to benefits received. Driver v. Road Improv. Dist. No. 1, 172 Ark. 340, 288 S.W. 711 (1926).

If benefits exceed damages, the property owner is not entitled to an award. Cullum v. Van Buren County, 223 Ark. 525, 267 S.W.2d 14 (1954); McMahan v. Carroll County, 238 Ark. 812, 384 S.W.2d 488 (1964).

Contraband.

Gaming devices may be destroyed under authority of statute, since they are a nuisance which the state has the power to control, without violating the taking of property without compensation provision of the Constitution. Garland Novelty Co. v. State, 71 Ark. 138, 71 S.W. 257 (1902); Furth v. State, 72 Ark. 161, 78 S.W. 759 (1904); Bell v. State, 212 Ark. 337, 205 S.W.2d 714 (1947).

Private property enjoys no constitutional privilege when it is knowingly used to traffic in drugs. One 1982 Datsun 280ZX v. Bentley ex rel. North Little Rock Police Dep't, 285 Ark. 121, 685 S.W.2d 498 (1985).

Drainage Ditches.

The owner of property damaged by the construction of drainage ditches is entitled to compensation. Sain v. Cypress Creek Drainage Dist., 161 Ark. 529, 257 S.W. 49 (1923), cert. denied, 265 U.S. 589, 44 S. Ct. 634, 68 L. Ed. 1194 (1924), dismissed, 268 U.S. 675, 45 S. Ct. 508, 69 L. Ed. 1151 (1925).

Owners of land adjoining drainage ditch could not recover for damages to crops caused by poison used by drainage district to kill willows growing on the drainage ditch right-of-way which drifted through the air and came in contact with some of the crops being grown by plaintiffs since the crops were not damaged for public use. Saint Francis Drainage Dist. v. Austin, 227 Ark. 167, 296 S.W.2d 668 (1956).

Eminent Domain Proceedings.

The sole object of proceedings for the condemnation of land is to ascertain the compensation the company shall pay for the right of way. Mountain Park Term. Ry. v. Field, 76 Ark. 239, 88 S.W. 897 (1905); Pine Bluff & W. Ry. v. Kelly, 78 Ark. 83, 93 S.W. 562 (1906); St. Louis, Iron Mountain & S. Ry. v. Faisst, 99 Ark. 61, 137 S.W. 815 (1911); Sloan v. Lawrence County, 134 Ark. 121, 203 S.W. 260 (1918).

The legislature may provide the procedure for the condemnation of private property for public use within constitutional bounds. Helena v. Ark. Utils. Co., 208 Ark. 442, 186 S.W.2d 783 (1945).

Commission was entitled to summary judgment in an owner's suit to establish a road across the commission's land because the proposed easement would have divested the state, via the commission, of the sole right to occupy the property at issue; Ark. Const., Art. 7, § 28, by itself, did not grant eminent domain power to county court to establish roads. The owner did not plead as part of his petition to establish a road that the commission was taking his property by withholding access in violation of the takings clause of the constitution. Ark. Game & Fish Comm'n v. Eddings, 2011 Ark. 47, 378 S.W.3d 694 (2011).

—Construction.

Statutes delegating the powers of eminent domain are to be strictly construed in favor of the landowner. Nature Conservancy v. Kolb, 313 Ark. 110, 853 S.W.2d 864 (1993).

—Dismissal.

A corporation's petition for condemning lands for public irrigation should not be dismissed for delay where the same cause was filed in 1944, dismissed in 1949, and refiled in 1950 unless the corporation is given opportunity to explain. Southwestern Water Co. v. Merritt, 224 Ark. 499, 275 S.W.2d 18 (1955).

—Mandamus.

The State Highway Commission cannot be compelled by mandamus to institute an eminent domain proceeding against the landowners, to the end that a forum may be provided for the recovery of damages. Bryant v. Ark. State Hwy. Comm'n, 233 Ark. 41, 342 S.W.2d 415 (1961).

—Notice and Hearing.

The condemnation of land involves a jury trial only at the final assessment of compensation, and where a court in vacation determines the amount of deposit to be made to guard the interests of a landowner, the landowner is entitled to notice. Ex parte Reynolds, 52 Ark. 330, 12 S.W. 570 (1889).

Where abutting property owners sought to enjoin state from widening highway right of way, burden was on the state to prove notice to the abutting owners rather than upon owners to show no notice of the unpublished condemnation order under which the state purported to be moving. Ark. State Hwy. Comm'n v. Anderson, 234 Ark. 774, 354 S.W.2d 554 (1962).

—Parties.

Where land sold but not paid for was taken by a railroad company for right of way and subsequently the purchase money was paid and a deed executed to the purchaser's widow, the vendor is not a necessary party to a suit to recover damages for the right of way taken. Brown v. Ark. Cent. R.R., 72 Ark. 456, 81 S.W. 613 (1904).

Where funds are set aside to compensate the defendants in a compensation proceeding, property owners against whom no action has been taken will not be allowed to intervene to force the defendants to share with them the fund set aside. Ark. State Hwy. Comm'n v. Kincannon, 193 Ark. 450, 100 S.W.2d 969 (1937).

—Statute of Limitations.

An action to recover damages from the digging of outlet ditches through one's land must be brought within three years of construction and exercise of eminent domain. Sewer Improv. Dist. No. 1 v. Jones, 199 Ark. 534, 134 S.W.2d 551 (1939).

A landowner has a limited time to file a claim for land condemned for public purposes under a lawful court order, and this limited time begins to run when the land is actually taken, that is, when an entry is made by the condemner. Ark. State Hwy. Comm'n v. Dobbs, 232 Ark. 541, 340 S.W.2d 283 (1960).

Where the State Highway Commission admitted appropriating land under eminent domain procedure, and the real owner of the land could not be held responsible for failure of commission to name the correct owner of the title, failure of real owner to intervene until seven days after an erroneously named owner received the money did not disentitle him to protection of the constitution for the value of the land, having been guilty of no laches, negligence, or delay. Ark. Real Estate Co. v. Ark. State Hwy. Comm'n, 237 Ark. 1, 371 S.W.2d 1 (1963).

Federal Constitution.

The provision in the United States Constitution that private property shall not be taken for public use without just compensation only applies to the exercise of the right of eminent domain by the United States. Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672 (1833); Cairo & Fulton R.R. v. Turner, 31 Ark. 494 (1876).

Fence Districts.

Statute which authorizes the annexation of lands in a city or town to a fence district is not unconstitutional as an appropriation of property without just compensation. Reed v. Huntley, 208 Ark. 924, 188 S.W.2d 117 (1945).

Fish and Game.

Regulation of the Game and Fish Commission providing that it shall be unlawful for any person to abandon or permit to go to waste the eatable portion of any game or fish in the state at any season of the year was invalid as an arbitrary taking of property without due process of law insofar as it related to fish farmers. Farris v. Ark. State Game & Fish Comm'n, 228 Ark. 776, 310 S.W.2d 231 (1958).

Regulation of Game and Fish Commission prohibiting the sale of game fish was not in violation of this section even though applied to fish farmers who raised such game fish in their private waters. Farris v. Ark. State Game & Fish Comm'n, 228 Ark. 776, 310 S.W.2d 231 (1958).

A partial fish kill as a conservation measure was held not to violate private property rights where the state owned the lake, used safe methods, and the public interest was only in fishing privileges. Ark. State Game & Fish Comm'n v. Eubank, 256 Ark. 930, 512 S.W.2d 540 (1974).

Even though Ark. Const. Amend. 35 gives broad powers to the Fish and Game Commission, the Commission is subservient to, and bound by, this section. Ark. Game & Fish Comm'n v. Lindsey, 299 Ark. 249, 771 S.W.2d 769 (1989).

Judicial Immunity.

In a private probation company’s 42 U.S.C. § 1983 action, stemming from two Craighead County district court judges’ implementation of an amnesty program forgiving probation fees, the judges were entitled to judicial immunity because such action was related to district courts’ authorized functions; Arkansas law provided that the district courts had jurisdiction to modify or dismiss probation sentences and conditions of misdemeanor offenders. Justice Network Inc. v. Craighead Cty., 931 F.3d 753 (8th Cir. 2019).

Levee Districts.

A levee district is not liable for damage by water to lands lying between the levee and the river resulting from the water being raised higher than before the levee was constructed. McCoy v. Board of Dirs., 95 Ark. 345, 129 S.W. 1097 (1910).

Levees.

A landowner is not entitled to damages for the failure to so construct a levee as to protect his land from the waters of the river. City Oil Works v. Helena Improv. Dist. No. 1, 149 Ark. 285, 232 S.W. 28 (1921).

Damage that may be awarded a land owner for the building of a levee is not necessarily limited to payment for land actually occupied by the levee, as any additional easement, use, or servitude required for the levee project and placed upon the land would amount to a damage or taking pro tanto for which the landowner must be compensated. Garland Levee Dist. v. Hutt, 207 Ark. 784, 183 S.W.2d 296 (1944).

Pipelines.

Section 23-15-101 did not violate this section because it had not granted the power of eminent domain to a pipeline company for a private use; the pipeline was available to multiple natural gas producers and was to be operated by the pipeline company as a common carrier so that the public had equal rights to its use. Smith v. Ark. Midstream Gas Servs. Corp., 2010 Ark. 256, 377 S.W.3d 199 (2010).

Planning.

Mere plotting or planning in anticipation of an improvement does not constitute a taking or damaging of the property affected where the government has not imposed a restraint on the use of the property. National By-Products, Inc. v. City of Little Rock ex rel. Little Rock Reg'l Airport Comm'n, 323 Ark. 619, 916 S.W.2d 745 (1996).

Police Power.

An ordinance's prohibition against flashing or blinking signs fell within the area of police regulation and owners of existing signs had no vested right protected by this section. City of Fayetteville v. S & H, Inc., 261 Ark. 148, 547 S.W.2d 94 (1977); City of Fayetteville v. McIlroy Bank & Trust Co., 278 Ark. 500, 647 S.W.2d 439 (1983); Hatfield v. City of Fayetteville, 278 Ark. 544, 647 S.W.2d 450 (1983).

Subchapter governing equine testing, § 2-40-801 et seq., is a valid exercise of police power. Winters v. State, 301 Ark. 127, 782 S.W.2d 566 (1990).

Circuit court did not err in affirming an order of the Oil and Gas Commission integrating an owner's unleased mineral interests into a drilling unit because the owner failed to satisfy his burden of showing that §§ 15-72-303 and 15-72-304 clearly violated the Arkansas Constitution; the Commission's integration of the owner's mineral interest was not a compensable taking but a constitutional exercise of the State's police power. Gawenis v. Ark. Oil & Gas Comm'n, 2015 Ark. 238, 464 S.W.3d 453 (2015).

Pollution Control Regulations.

The lumber company did not show that compliance with the Water and Air Pollution Control Act would be commensurate to a taking of its property where there was no proof of the company's net worth, nor anything to show a before and after value relative to the cost of compliance, and there was no proof that other options were open to the company. J.W. Black Lumber Co. v. Ark. Dep't of Pollution Control & Ecology, 290 Ark. 170, 717 S.W.2d 807 (1986).

The mere fact that a partial use of property is burdened by regulation does not amount to a taking. J.W. Black Lumber Co. v. Ark. Dep't of Pollution Control & Ecology, 290 Ark. 170, 717 S.W.2d 807 (1986).

Private Use.

Property can not be taken by eminent domain for private use. Ozark Coal Co. v. Pennsylvania Anthracite R.R., 97 Ark. 495, 134 S.W. 634 (1911).

Creating an improvement district to build a bridge for a railroad is taking property for a private use. Nakdimen v. Fort Smith & Van Buren Bridge Dist., 115 Ark. 194, 172 S.W. 272 (1914).

Public Use.

The fact that private ends will be advanced by the condemnation of property will not defeat the right of condemnation if the use for which the property is desired is a public one. Cloth v. Chicago, Rock Island & Pac. Ry., 97 Ark. 86, 132 S.W. 1005 (1910).

Under the power of eminent domain, private property can be taken only for a public use, and whether or not the property taken is for a public use is a judicial question which the owner has the right to have determined by the courts. Cloth v. Chicago, Rock Island & Pac. Ry., 97 Ark. 86, 132 S.W. 1005 (1910).

It is a judicial question for the courts to determine whether a particular use for which private property is about to be taken under legislative sanction is a public one. Ozark Coal Co. v. Pennsylvania Anthracite R.R., 97 Ark. 495, 134 S.W. 634 (1911).

Although the principal object in constructing a certain railroad may be the development of the coal mine of a certain corporation, if the public has the right to use the railroad for shipping purposes, the railroad is a public highway and entitled to exercise the power of eminent domain. Ozark Coal Co. v. Pennsylvania Anthracite R.R., 97 Ark. 495, 134 S.W. 634 (1911).

Where the owner of land desires to restrain the taking thereof for an unlawful use, he should file a plea in the condemnation suit setting out the facts entitling him to relief and ask for a transfer to equity. St. Louis, Iron Mountain & S. Ry. v. Faisst, 99 Ark. 61, 137 S.W. 815 (1911).

Everything which tends to enlarge the resources and promote the productive power of any considerable number of the inhabitants of a section of the state contributes either directly or indirectly to the general welfare and prosperity of the whole community. Lee Wilson & Co. v. William R. Compton Bond & Mtg. Co., 103 Ark. 452, 146 S.W. 110 (1912).

The fact that a proposed canal for which a water district sought to acquire a right of way under eminent domain would at first serve only one user did not make such exercise of the right of eminent domain for private rather than public use where such water would be rendered available to many prospective users on the same terms. Hale v. Southwest Ark. Water Dist., 244 Ark. 647, 244 Ark. 647, 427 S.W.2d 14 (1968).

Statute is not unconstitutional as allowing a taking for private use since a road established under this section is deemed a public road because anyone may use it; an individual who is landlocked and proceeds under this section has no other alternatives available to him and, if he were not granted access to his land under such a statute, he would have no remedy. Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983).

By failing to remedy the overflow of city sewage into plaintiff's home, the city effectively chose to purchase the property diminished by its actions; the public benefitted being not having to spend the money it would have taken to prevent the sewage overflow. Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990).

Section 23-15-101 was constitutional as applied and did not violate this section where it granted a private gas company the right of eminent domain to construct and maintain a natural gas pipeline over private land and the gas company operated the pipeline as a common carrier, giving the public the equal right to use the pipeline. Linder v. Ark. Midstream Gas Servs. Corp., 2010 Ark. 117, 362 S.W.3d 889 (2010).

Landowners' property was taken for public use in compliance with this section; by electing to operate its gathering line as a common carrier, a pipeline company gave the public the equal right to use the pipeline to transport natural gas to the market. Ralph Loyd Martin Revocable Trust Declaration v. Ark. Midstream Gas Servs. Corp., 2010 Ark. 480, 377 S.W.3d 251 (2010).

Public Welfare.

An individual's use and enjoyment of property is always subject to reasonable regulations in order to preserve the welfare of the public at large; therefore, regulations promulgated by the State Highway Commission pursuant to the Highway Beautification Act for the control of outdoor advertising devices along certain highways did not constitute an unlawful taking of property without compensation. Yarbrough v. Ark. State Hwy. Comm'n, 260 Ark. 161, 539 S.W.2d 419 (1976).

Railroads.

A statute punishing railroad employees for burning, mutilating, hauling off or burying stock killed by trains is constitutional. Bannon v. State, 49 Ark. 167, 4 S.W. 655 (1887).

The Railroad Commission (now Public Service Commission) has the power to establish a depot or station in the first place and to change the location of depots that have formerly been established. St. Louis, Iron Mountain & S. Ry. v. Bellamy, 113 Ark. 384, 169 S.W. 322 (1914).

Redevelopment.

The Urban Development Law is not unconstitutional on the ground that it takes private property without just compensation. Rowe v. Housing Auth., 220 Ark. 698, 249 S.W.2d 551 (1952).

An urban renewal plan does not violate this section and, if the agency cannot reach an agreement on price with landowners in project area, then procedures under eminent domain statutes must be invoked and land and property cannot be taken without just compensation. Adams v. Sims, 238 Ark. 696, 385 S.W.2d 13 (1964).

Riparian Rights.

The turning of sewage into a stream and polluting the waters thereof to the damage of lower riparian owners is a damage done for public use within the meaning of the Constitution, and the city must make compensaton for such damage. McLaughlin v. City of Hope, 107 Ark. 442, 155 S.W. 910 (1913).

Damage to lower riparian owners by the turning of sewage into a stream should be assessed on a theory of a permanent taking under a right of eminent domain. Jones v. Sewer Improv. Dist. No. 3, 119 Ark. 166, 177 S.W. 888 (1915).

Taking of Property.

“Fault” has nothing to do with eminent domain, and it is not bare trespass or negligence which results in inverse condemnation but something which amounts to a de facto or common law “taking.” Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990).

A taking does not require permanency or an irrevocable injury. City of Fayetteville v. Stanberry, 305 Ark. 210, 807 S.W.2d 26 (1991).

The plaintiffs failed to show that there was a taking of their property by the defendant city where (1) shortly after the parties entered into negotiations for the sale of the property to the city, a fire occurred at the property, (2) there was a delay in responding to the report of the fire, (3) the building on the property was destroyed, and (4) the zoning board thereafter refused the plaintiffs' request for a building permit to rebuild or to rezone the property; the plaintiffs were not deprived of all beneficial enjoyment of their property, and there was no proof that the city received some public benefit. Thompson v. City of Siloam Springs, 333 Ark. 351, 969 S.W.2d 639 (1998).

The seizure of a gun was not a taking proscribed by the Constitution where the gun was evidence of a violation of the law. Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999).

Circuit court properly dismissed the neighbors' nuisance lawsuit against a charitable organization's operation of a shooting range on its property because the organization was statutorily immune from suit under § 16-105-502, where no local noise control ordinances existed at the time the shooting range began operation, and the burden on the neighbors' use of their property, and its diminution in value, was insufficient to rise to the level of a taking under this section. 3 Rivers Logistics, Inc. v. Brown-Wright Post No. 158, 2018 Ark. 91, 548 S.W.3d 137 (2018).

Tort Liability.

A drainage district's degree of liability in tort is not subject to the provisions of this section covering the taking of property without compensation. Wood v. Drainage Dist., No. 2, 110 Ark. 416, 161 S.W. 1057 (1913).

When a municipality acts in a manner which substantially diminishes the value of a landowner's land, and its actions are shown to be intentional, it cannot escape its constitutional obligation to compensate for a taking of property on the basis of its immunity from tort action. Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990).

Utility Rates.

Where the telephone company did not clearly show that the rate of return allowed upon its investment was confiscatory or that its income was so drastically affected that its credit was impaired, the commission's order did not violate this section. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Zoning.

When the owners refused to renew the lease on a game reserve, the commission promulgated special regulations called zoning laws which kept the appellants from protecting their property from the wild game, which regulations constituted a taking of land without compensation. Shellnut v. Ark. State Game & Fish Comm'n, 222 Ark. 25, 258 S.W.2d 570 (1953).

Where testimony shows commercial use of property is the only way it has reasonable and satisfactory value, refusal to rezone property for such use was arbitrary, unlawful, and discriminatory. City of Little Rock v. Gardner, 239 Ark. 54, 386 S.W.2d 923 (1965).

Where defendant had partially developed a five acre tract of land as a mobile home park prior to annexation by the city and the passage of a zoning ordinance making such use non-conforming, the spaces that had been at least partially developed gave the defendant vested rights in non-conforming use of the land and, as zoning ordinances must be strictly construed in favor of the property owner, attempts to deprive the owner of such a pre-existing use were regarded as unconstitutional as a taking of property without compensation or in violation of due process of law. Blundell v. City of West Helena, 258 Ark. 123, 522 S.W.2d 661 (1975).

Where the plaintiff property owners purchased the property knowing that it was zoned single family, the city's refusal to rezone the property to an apartment classification did not constitute a taking for public use without compensation and was not an unreasonable limitation placed upon the use of the property. McMinn v. City of Little Rock, 275 Ark. 458, 631 S.W.2d 288 (1982).

A city's requirement that a property owner dedicate part of his property to the city as a condition for approval of his rezoning application constituted a taking of private property without just compensation since, although there was a nexus between the dedication and the city's interest in declining to rezone the property, the city failed to carry its burden of proving rough proportionality between the dedication and the impact of the proposed rezoning. Beavers v. Ark. State Bd. of Dental Exam'rs, 151 F.3d 838 (8th Cir. 1998).

Cited: House v. City of Texarkana, 225 Ark. 162, 279 S.W.2d 831 (1955); Ark. State Highway Comm'n v. Bingham, 231 Ark. 934, 333 S.W.2d 728 (1960); Roesler v. Denton, 239 Ark. 462, 390 S.W.2d 98 (1965); American Television Co. v. City of Fayetteville, 253 Ark. 760, 489 S.W.2d 754 (1973); Greig v. Crawford County, 256 Ark. 202, 506 S.W.2d 523 (1974); Ark. State Hwy. Comm'n v. Wood, 264 Ark. 425, 572 S.W.2d 583 (1978); Hall v. Board of Trustees, 671 F.2d 269 (8th Cir. 1982); Ark. State Hwy. Comm'n v. Security Sav. Ass'n, 19 Ark. App. 133, 718 S.W.2d 456 (1986); Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989); Mahurin v. Oaklawn Jockey Club, 299 Ark. 13, 771 S.W.2d 19 (1989); In re Switzer, 303 Ark. 288, 796 S.W.2d 341 (1990).

§ 23. Eminent domain and taxation.

The State's ancient right of eminent domain and of taxation, is herein fully and expressly conceded; and the General Assembly may delegate the taxing power, with the necessary restriction, to the State's subordinate political and municipal corporations, to the extent of providing for their existence, maintenance and well being, but no further.

Research References

ALR.

Zoning regulations limiting use of property near airport as taking of property. 18 A.L.R.4th 542.

Sufficiency of condemnor's negotiations required as preliminary to taking in eminent domain. 21 A.L.R.4th 765.

Airport operations or flight of aircraft as constituting taking or damaging of property. 22 A.L.R.4th 863.

Measure and elements of damages or compensation for condemnation of public transportation system. 35 A.L.R.4th 1263.

Elements and Measure of Compensation in Eminent Domain Proceeding for Temporary Taking of Property. 49 A.L.R.6th 205.

Zoning Scheme, Plan, or Ordinance as Temporary Taking. 55 A.L.R.6th 635.

Ark. L. Rev.

Reimbursement of Attorney's Fees in Arkansas upon Dismissal of Condemnation Proceedings, 22 Ark. L. Rev. 181.

Acquisition of Public Recreational Access to Privately Owned Property: Devices, Problems, and Incentives, 29 Ark. L. Rev. 514.

Post-Kelo Determination of Public Use and Eminent Domain in Economic Development Under Arkansas Law, 59 Ark. L. Rev. 43.

U. Ark. Little Rock L.J.

Owen, Note: Local Government — Municipal Corporation — Annexation Invalidation, 2 U. Ark. Little Rock L.J. 105.

McCorkle, Constitutional Law — Arkansas' Nondelegation Doctrine: The Arkansas Supreme Court Defines a Limit on the Delegation of Legislative Authority to a Private Party, 23 U. Ark. Little Rock L. Rev. 297.

Case Notes

In General.

Because the property owner failed to perfect his appeal within 30 days under former Ark. Inferior Ct. R. 9, the trial court did not have jurisdiction to hear the issues that arose out of the city's resolution to destroy his building; no due process violation occurred where the owner had an opportunity to be heard at a meaningful time and in a meaningful manner. Ingram v. City of Pine Bluff, 355 Ark. 129, 133 S.W.3d 382 (2003).

Eminent Domain.

The legislature, acting for the state, may take any kind of property for public use by the exercise of eminent domain. Cloth v. Chicago, Rock Island & Pac. Ry., 97 Ark. 86, 132 S.W. 1005 (1910).

The power of eminent domain is an attribute of sovereignty. The procedure for exercising the power is a matter of legislative regulation. Cannon v. Felsenthal, 180 Ark. 1075, 24 S.W.2d 856 (1930).

Ark. Const., Art. 12, § 9, does not suggest the right of eminent domain is limited to corporations; to read that section with such implied restrictions would be contrary to the court's interpretation of the general grant of eminent domain to the state in this constitutional provision. Young v. Energy Transp. Sys., 278 Ark. 146, 644 S.W.2d 266 (1983), cert. denied, 465 U.S. 1105, 104 S. Ct. 1606, 80 L. Ed. 2d 135 (1984).

The legislature may confer on an individual or a partnership the power to condemn private property for public purposes. Young v. Energy Transp. Sys., 278 Ark. 146, 644 S.W.2d 266 (1983), cert. denied, 465 U.S. 1105, 104 S. Ct. 1606, 80 L. Ed. 2d 135 (1984).

The General Assembly was within its province in authorizing the county court to exercise the power of eminent domain to give access to landlocked tracts, and clearly did so in § 27-66-401. Yates v. Sturgis, 311 Ark. 618, 846 S.W.2d 633 (1993).

Taxation.

Legislature has the power to make all property in the state subject to taxation, except property specifically exempted by the Constitution, and to provide where and in what manner taxes shall be levied and collected. Arco Auto Carriers, Inc. v. State, 232 Ark. 779, 341 S.W.2d 15 (1960), appeal dismissed and cert. denied, 365 U.S. 770, 81 S. Ct. 912, 6 L. Ed. 2d 189 (1961).

Where the objects of the taxation are municipalities and counties which are entities created by the state, the legislature was acting well within its power when it imposed the tax. County of Howard v. Rotenberry, 286 Ark. 29, 688 S.W.2d 937 (1985).

The improper adoption of a tax by a county does not prohibit the subsequent imposition of the same or similar tax by the proper authority. City of Little Rock v. Waters, 303 Ark. 363, 797 S.W.2d 426 (1990), overruled, Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998).

Circuit court properly granted summary judgment in favor of the University of Arkansas because the University was an instrumentality of the State of Arkansas and possessed sovereign immunity from ad valorem taxation; based on the plain language of the Arkansas Constitution, the Constitution does not state that sovereign property is subject to ad valorem taxation. Washington County v. Bd. of Trs. of the Univ. of Ark., 2016 Ark. 34, 480 S.W.3d 173 (2016).

Arkansas Constitution delegates the power to enact laws regarding taxation; the General Assembly has not enacted a law subjecting property owned by the State to ad valorem taxation, nor has the General Assembly delegated that power to subordinate political and municipal corporations. Washington County v. Bd. of Trs. of the Univ. of Ark., 2016 Ark. 34, 480 S.W.3d 173 (2016).

—Annexation for Taxation.

The annexation of lands for purposes of taxation only is prohibited by the Constitution. Saunders v. City of Little Rock, 262 Ark. 256, 556 S.W.2d 874 (1977), overruled in part, Chappell v. City of Russellville, 288 Ark. 261, 704 S.W.2d 166 (1986).

—Assessment of Benefits.

The act establishing a drainage district does not deprive the individual of his property, nor tax it for the benefit of other landowners, but only requires the payment of benefits assessed against the land resulting from the improvement for the common interest of all landowners of the district. Less Land Co. v. Fender, 119 Ark. 20, 173 S.W. 407 (1915).

—Classification for Tax Purposes.

Legislature may classify corporations and corporate interests for purpose of taxation and specify the mode of assessment, levy, and collection of taxes on corporate properties and interests. Arco Auto Carriers, Inc. v. State, 232 Ark. 779, 341 S.W.2d 15 (1960), appeal dismissed and cert. denied, 365 U.S. 770, 81 S. Ct. 912, 6 L. Ed. 2d 189 (1961)..

—Delegation of Power.

The right to tax may be restricted by the Constitution but needs no clause to confer the right. Ouachita County v. Rumph, 43 Ark. 525 (1884).

The legislature may delegate the taxing power, with the necessary restrictions, on the state's subordinate political and municipal corporations to the extent of providing for their existence, maintenance, and well-being, but no further. City of Little Rock v. Prather, 46 Ark. 471 (1885); Carson v. St. Francis Levee Dist., 59 Ark. 513, 27 S.W. 590 (1894); Waldrop v. Kansas City S. Ry., 131 Ark. 453, 199 S.W. 369 (1917).

A local improvement district is not a subordinate political agency to which tax privileges may be delegated. Whaley v. Northern Rd. Improv. Dist., 152 Ark. 573, 240 S.W. 1 (1922).

Where the assessments by the property owners' association on properties owned by its members arose out of contract and constituted a benefit to the property owners, such assessments did not amount to an unlawful delegation of the state's taxing power in violation of this section. Kell v. Bella Vista Village Property Owners' Ass'n, 258 Ark. 757, 528 S.W.2d 651 (1975).

Former § 2-20-511 was an unconstitutional delegation of taxing authority. Leathers v. Gulf Rice Ark., Inc., 338 Ark. 425, 994 S.W.2d 481 (1999).

—State Authority.

A state's power to impose a use tax is not conferred; it inheres in the sovereign and is plenary. City of Little Rock v. Waters, 303 Ark. 363, 797 S.W.2d 426 (1990), overruled, Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998).

The state's taxing authority is much broader than the limited authority delegated to the counties under §§ 26-74-201 et seq. and 26-74-301. City of Little Rock v. Waters, 303 Ark. 363, 797 S.W.2d 426 (1990), overruled, Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998).

Cited: City of Mt. Home v. Drake, 281 Ark. 336, 663 S.W.2d 738 (1984); Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574 (1997); Stilley v. Henson, 342 Ark. 346, 28 S.W.3d 274 (2000).

§ 24. Religious liberty.

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can, of right, be compelled to attend, erect, or support any place of worship; or to maintain any ministry against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship, above any other.

Cross References. Atheists, Ark. Const, Art. 19, § 1.

Research References

ALR.

Validity, construction and effect of Sunday closing or blue laws. 10 A.L.R.4th 246.

Validity, under federal and state establishment of religion provisions, of prohibition of sale of intoxicating liquors on specific religious holidays. 27 A.L.R.4th 1155.

Validity, under state constitution, of private shopping center's prohibition or regulation of political, social, or religious expression or activity. 52 A.L.R.5th 195.

Power of court or other public agency to order vaccination over parental religious objection. 94 A.L.R.5th 613.

Landlord's refusal to rent to unmarried couple as protected by landlord's religious beliefs. 10 A.L.R.6th 513.

Constitutionality of Legislative Prayer Practices. 30 A.L.R.6th 459.

Application of First Amendment's “Ministerial Exception” or “Ecclesiastical Exception” to State Civil Rights Claims. 53 A.L.R.6th 569.

Prohibition of Federal Agency's Keeping of Records on Methods of Individual Exercise of First Amendment Rights, Under Privacy Act of 1974 (5 USC § 552a(e)(7)). 20 A.L.R. Fed. 2d 437.

Prisoner Beard Regulations as Religious Discrimination Under First Amendment or Religious Land Use and Institutionalized Persons Act. 93 A.L.R. Fed. 2d 439 (2015).

Am. Jur. 16A Am. Jur. 2d, Constitutional Law, § 432 et seq.

Ark. L. Rev.

The New Judicial Federalism Takes Root in Arkansas, 58 Ark. L. Rev. 883.

C.J.S. 16A C.J.S., Constitutional Law, § 855 et seq.

U. Ark. Little Rock L.J.

Survey — Constitutional Law, 12 U. Ark. Little Rock L.J. 161.

Note, Constitutional Law — Free Exercise Clause — Sacrificial Rites Become Constitutional Rights on the Altar of Babalu Aye, 16 U. Ark. Little Rock L.J. 623.

Case Notes

In General.

There is a distinction between an infringement upon a religious belief, which is absolutely prohibited, and a limitation upon a religious action, which is subject to reasonable laws designed to protect the public health or welfare; those laws may limit the time, place, and manner of action. Abram v. City of Fayetteville, 281 Ark. 63, 661 S.W.2d 371 (1983).

Where a state conditions receipt of an important benefit upon conduct proscribed by a religious faith or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on adherents to modify their behavior and to violate their beliefs, a burden upon religion exists; while the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial. Guaranteed Auto Fin., Inc. v. Dir., ESD, 92 Ark. App. 295, 213 S.W.3d 39 (2005).

Children.

Because parents were permitted to contract regarding the religious upbringing of their children, a trial court did not err in refusing to find that an order enjoining a former husband from promoting a different faith to his children, in violation of this type of agreement, constituted a miscarriage of justice under Ark. R. Civ. P. 60(a). Moreover, it did not violate his First Amendment rights, the Establishment Clause, or any correlating provision of the Arkansas Constitution. Rownak v. Rownak, 103 Ark. App. 258, 288 S.W.3d 672 (2008).

Department of Human Services did not violate a father's free exercise of religion by creating a reunification plan which required the father to obtain housing and employment separate and apart from a ministry compound because the state's interest in preventing potential harm to the father's minor children outweighed the father's conscientious choice to live on ministry property, work for the ministry, and depend on the ministry for the family's every need. Thorne v. Ark. Dep't of Human Servs., 2010 Ark. App. 443, 374 S.W.3d 912 (2010), overruled in part, Myers v. Ark. Dep't of Human Servs., 2011 Ark. 182, 380 S.W.3d 906 (2011).

Christian Religion.

The Christian religion is part of the common law, and its institutions may be protected by law. Shover v. State, 10 Ark. 259 (1850) (decision under prior Constitution).

Commercial Activities.

Religious organizations entering the commercial and secular world necessarily do so with the understanding that they no longer enjoy the constitutional protection afforded religious organizations. There are no shields once they cross the line that separates church and state; they are no longer considered a church or religious organization, because they are not acting like one. Tony & Susan Alamo Found., Inc. v. Ragland, 295 Ark. 12, 746 S.W.2d 45, cert. denied, Alamo Foundation v. Ragland, 488 U.S. 852, 109 S. Ct. 137, 102 L. Ed. 2d 109 (1988).

Election of Board of Directors.

Circuit court did not violate the First Amendment nor this section by applying neutral law principles concerning a Buddhist temple's election procedures; provisional ballots were counted and did not change the election results and the temple board of directors, as duly appointed representative of membership, had authority to dismiss the abbot and monks. Viravonga v. Wat Buddha Samakitham, 372 Ark. 562, 279 S.W.3d 44 (2008).

Employment.

Board of Review properly held that employee was entitled to unemployment benefits under § 11-10-513 where the employee had good cause to leave once his constitutionally protected religious beliefs diverged with his job requirement of working on Saturdays as an automobile salesman; the employee could not be denied unemployment compensation solely because he chose his religion over his job. Guaranteed Auto Fin., Inc. v. Dir., ESD, 92 Ark. App. 295, 213 S.W.3d 39 (2005).

Incorporation.

Internal church disputes relating to the disclosure of church business should not be subject to the legal concerns of a court; however, when a church decides to incorporate, it submits itself to certain corporate laws of this state, and certain statutory duties apply unless they conflict with a constitutional prohibition. Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986).

Where members of a church, incorporated as a nonprofit corporation, sought disclosure of financial data and other business information relating to the church and asserted that, as members of a nonprofit corporation, they were entitled to this knowledge as a matter of statutory right and the church elders claimed first amendment protection since under church doctrine, the decision whether to disclose church financial information rested with the elders, an evidentiary hearing was necessary to determine the merits of the church elders' claim of constitutional protection against ordered disclosure of church information. Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986).

Religious Beliefs.

To claim the protection of the freedom of religion clauses of the U.S. and Arkansas Constitutions, a party's position must be rooted in religious belief; the determination of what is a “religious belief” is a delicate matter and state courts can only become involved in church disputes when “neutral principles” of law can be applied to resolve the dispute. Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986).

Sabbath Breaking.

The statute punishing the breaking of the Sabbath is not in derogation of the liberty of conscience secured by the declaration of rights. Shover v. State, 10 Ark. 259 (1850) (decision under prior Constitution).

The Sabbath statute is a civil regulation providing for a day of rest and imposes on no one any religious ceremony or form of worship. Scales v. State, 47 Ark. 476, 1 S.W. 769 (1886).

Schools.

This section does not prohibit the state from compelling children to attend school nor from appointing a guardian to have children vaccinated against smallpox in order to permit them to attend even though the parents contend that vaccination is contrary to their religious beliefs. Cude v. State, 237 Ark. 927, 377 S.W.2d 816 (1964).

The opening of a parochial school falls within the ambit of a religious action and is subject to reasonable limitation upon the time, place, and manner of operation; as a general rule, land use regulation by zoning may be a reasonable limitation upon the place of operation of a parochial school. Abram v. City of Fayetteville, 281 Ark. 63, 661 S.W.2d 371 (1983).

Where zoning ordinance clearly manifested the city's legislative decision to use different criteria when considering an application for a conditional use permit for a church than when considering such a permit for a school, the ordinance was intended as a land use regulation, and the distinction between churches and schools was valid since a school is a more intensive use of land than a church. There is no constitutional prohibition against different requirements for different uses. Abram v. City of Fayetteville, 281 Ark. 63, 661 S.W.2d 371 (1983).

Cited: Lendall v. Cook, 432 F. Supp. 971 (E.D. Ark. 1977); Windsor Park Baptist Church v. Ark. Activities Ass'n, 658 F.2d 618 (8th Cir. 1981); Cortez v. Independence County, 287 Ark. 279, 698 S.W.2d 291 (1985); Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988).

§ 25. Protection of religion.

Religion, morality and knowledge being essential to good government, the General Assembly shall enact suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship.

Cross References. Atheists, Ark. Const, Art. 19, § 1.

Research References

ALR.

Constitutionality of Legislative Prayer Practices. 30 A.L.R.6th 459.

Prohibition of Federal Agency's Keeping of Records on Methods of Individual Exercise of First Amendment Rights, Under Privacy Act of 1974 (5 USCS § 552a(e)(7)). 20 A.L.R. Fed. 2d 437.

Ark. L. Rev.

Property Tax Exemptions in Arkansas, 4 Ark. L. Rev. 433.

U. Ark. Little Rock L.J.

Survey — Constitutional Law, 12 U. Ark. Little Rock L.J. 161.

Case Notes

Cited: Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986).

§ 26. Religious tests.

No religious test shall ever be required of any person as a qualification to vote or hold office; nor shall any person be rendered incompetent to be a witness on account of his religious belief; but nothing herein shall be construed to dispense with oaths or affirmations.

Cross References. Atheists, Ark. Const., Art. 19, § 1.

§ 27. Slavery — Standing armies — Military subordinate to civil power.

There shall be no slavery in this State, nor involuntary servitude, except as a punishment for crime. No standing army shall be kept in time of peace; the military shall, at all times, be in strict subordination to the civil power; and no soldier shall be quartered in any house, or on any premises, without the consent of the owner, in time of peace; nor in time of war, except in a manner prescribed by law.

Research References

ALR.

Application of Section 1 of 13th Amendment to United States Constitution, U.S. Const. Amend. XIII, § 1, Prohibiting Slavery and Involuntary Servitude — Labor Required as Punishment for Crime. 87 A.L.R.6th 109.

Application of Section 1 of 13th Amendment to United States Constitution, U.S. Const. Amend. XIII, § 1, Prohibiting Slavery and Involuntary Servitude — Labor Required by Law or Force Not as Punishment for Crime. 88 A.L.R.6th 203.

§ 28. Tenure of lands.

All lands in this State are declared to be allodial; and feudal tenures of every description, with all their incidents, are prohibited.

Research References

Ark. L. Rev.

Medieval Law in the Age of Space: Some “Rules of Property” in Arkansas, 22 Ark. L. Rev. 248.

§ 29. Enumeration of rights of people not exclusive of other rights — Protection against encroachment.

This enumeration of rights shall not be construed to deny or disparage others retained by the people; and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything in this article is excepted out of the general powers of the government; and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void.

Research References

Ark. L. Rev.

LaToya J. Alexander, Case Note: Arkansas Department of Human Services v. Cole: Another Step Toward Same Sex Marriage in Arkansas?, 66 Ark. L. Rev. 527 (2013).

Philip A. Elmore, Comment: “That's Just Pillow Talk, Baby”: Spousal Privileges and the Right to Privacy in Arkansas, 67 Ark. L. Rev. 961 (2014).

Richard Albert, American Exceptionalism in Constitutional Amendment, 69 Ark. L. Rev. 217 (2016).

U. Ark. Little Rock L. Rev.

Note: Constitutional Law — Privacy and Equal Protection — Arkansas Joins Other States in a Revival of State Constitutions as Guardians of Individual Rights, Establishing New Protections for Arkansas Gays and Lesbians, Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), 25 U. Ark. Little Rock L. Rev. 681.

Case Notes

Abortion.

A state may proscribe any abortion by a person who is not a physician, and a layman charged with inducing an abortion has no standing in court to attack the constitutionality of such a statute. May v. State, 254 Ark. 194, 492 S.W.2d 888, cert. denied, 414 U.S. 1024, 94 S. Ct. 448, 38 L. Ed. 2d 315 (1973).

Constitutional Convention.

Statute which provided for a limited constitutional convention not ratified by the electorate was unconstitutional under this section in that it would permit the delegates to such convention to exercise a power reserved to the electorate without a ratification by the electorate. Pryor v. Lowe, 258 Ark. 188, 523 S.W.2d 199 (1975).

Governmental Immunity.

Statute which grants immunity from tort liability to subdivisions of the State are not unconstitutional as a violation of this section, which declares all laws contrary to the Constitution to be void. Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984).

Regulation of Business.

The state has the right to grant or withhold the privilege of the authority to sell liquor, and may impose any conditions it sees fit on such sale. Wade v. Horner, 115 Ark. 250, 170 S.W. 1005 (1914).

A statute fixing the price, wages, and hours of barbers violates the constitutional enumeration of the rights of the people. Noble v. Davis, 204 Ark. 156, 161 S.W.2d 189 (1942).

Right of Privacy.

Enforcement of statute establishing the crime of sodomy and buggery did not violate any constitutional right of privacy where the act defendant was accused of was not committed in privacy but took place in an automobile on a public road adjacent to an interstate highway. Connor v. State, 253 Ark. 854, 490 S.W.2d 114, appeal dismissed, 414 U.S. 991, 94 S. Ct. 342, 38 L. Ed. 2d 230 (1973).

The portion of an Arkansas statute criminalizing specific acts of private, consensual sexual intimacy between persons of the same sex is unconstitutional as it infringes upon an individual's fundamental right to privacy. Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002).

Cited: Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978); Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989); Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995); Strother v. LaCroix Optical, 2013 Ark. App. 719 (2013).

Article 3 Franchise and Elections

Research References

Am. Jur. 25 Am. Jur. 2d, Elections, § 2 et seq.

C.J.S. 29 C.J.S., Elections, § 1 et seq.

§ 1. Qualifications of electors.

  1. Except as otherwise provided by this Constitution, any person may vote in an election in this state who is:
    1. A citizen of the United States;
    2. A resident of the State of Arkansas;
    3. At least eighteen (18) years of age; and
    4. Lawfully registered to vote in the election.
    1. In addition to the qualifications under subsection (a) of this section, the General Assembly shall provide by law that a voter shall:
      1. Present valid photographic identification before receiving a ballot to vote in person; and
      2. Enclose a copy of valid photographic identification with his or her ballot when voting by absentee ballot.
    2. The General Assembly shall establish by law the types of photographic identification that a person may present to comply with subdivision (b)(1) of this section.
  2. The State of Arkansas shall issue photographic identification at no charge to an eligible voter who does not have a form of photographic identification meeting the requirements of the law enacted by the General Assembly under this section.
      1. A voter unable to present valid photographic identification when voting in person shall be permitted to vote a provisional ballot.
      2. An absentee ballot that is not accompanied by a copy of valid photographic identification shall be considered a provisional ballot.
    1. A provisional ballot under subdivision (d)(1) of this section shall be counted only if the voter subsequently certifies the provisional ballot in a manner provided by law.
    1. The General Assembly shall implement the provisions of this amendment by law.
    2. The General Assembly may provide by law for exceptions to the requirement that a voter:
      1. Present valid photographic identification before receiving a ballot to vote in person; and
      2. Enclose a copy of valid photographic identification with his or her ballot when voting by absentee ballot.
  3. A voter meeting the requirements of this section also shall comply with all additional laws regulating elections necessary for his or her vote to be counted. [As amended by Const. Amend. 8; Const. Amend. 85; Const. Amend. 99.]

Publisher's Notes. Before amendment by Amend. 8, this section read: “Every male citizen of the United States, or male person who has declared his intention of becoming a citizen of the same, of the age of twenty-one years, who has resided in the State twelve months, and in the county six months, and in the voting precinct or ward one month, next preceding any election, where he may propose to vote, shall be entitled to vote at all elections by the people.”

The former provision of this section requiring that a poll tax receipt be presented prior to registration and voting was repealed by Ark. Const. Amend. 51, § 17.

Ark. Const. Amend. 85, which amended this section, was proposed by S.J.R. 4 during the 2007 Regular Session and adopted at the 2008 general election by a vote of 714,128 for and 267,326 against.

Before amendment by Amend. 85, this section read:

“§ 1. Qualifications of electors — Equal suffrage — Poll tax.

“Every citizen of the United States of the age of twenty-one years, who has resided in the State twelve months, in the county six months, and in the precinct, town or ward one month, next preceding any election at which they may propose to vote, except such persons as may for the commission of some felony be deprived of the right to vote by law passed by the General Assembly, and who shall exhibit a poll tax receipt or other evidence that they have paid their poll tax at the time of collecting taxes next preceding such election, shall be allowed to vote at any election in the State of Arkansas, provided, that persons who make satisfactory proof that they have attained the age of twenty-one years since the time of assessing taxes next preceding said election and possess the other necessary qualifications, shall be permitted to vote; and, provided, further, that the said tax receipt shall be so marked by dated stamp or written endorsement by the judges of election to whom it may be first presented as to prevent the holder thereof from voting more than once at any election. It is declared to be the purpose of this amendment to deny the right of suffrage to aliens and it is declared to be the purpose of this amendment to confer suffrage equally upon both men and women, without regard to sex; provided, that women shall not be compelled to serve on juries. [As amended by Const. Amend. 8.]”

Ark. Const. Amend. 99, which amended this section, was proposed by H.J.R. 1016 during the 2017 Regular Session and adopted at the 2018 general election by a vote of 689,454 for and 177,815 against. The amendment added subsections (b)-(f) and was effective thirty days after the election pursuant to § 7-9-119.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state criminal disenfranchisement provisions. 10 A.L.R.6th 31.

Case Notes

Jury Service.

Ark. Const. Amend. 8, granting equal suffrage, grants only the privilege of serving on a jury and does not compel women to serve on the jury or require jury commissioners to select women. Bailey v. State, 215 Ark. 53, 219 S.W.2d 424 (1949).

Proof-of-Identity Requirement.

Proof-of-identity requirement set forth in former version of § 7-5-201(d)(1)(A) was unconstitutional on its face as it imposed a requirement that fell outside the ambit of this section of Article 3. Martin v. Kohls, 2014 Ark. 427, 444 S.W.3d 844 (2014).

Residence.

One does not acquire a new residence until he has formed the intention of abandoning his old one. Wilson v. Luck, 201 Ark. 594, 146 S.W.2d 696 (1941).

The enrollee of the civilian conservation corps who had resided in the county for the required time, if a resident of the county when he enrolled or if he intended to remain when service in the camp was completed, was a resident within the meaning of the election law. Wilson v. Luck, 201 Ark. 594, 146 S.W.2d 696 (1941).

Where no misapprehension as to boundaries existed, ballots of persons not voting in the township in which they reside should be excluded. Wilson v. Luck, 203 Ark. 377, 156 S.W.2d 795 (1941).

In contest of election for party committeeman, evidence sustained finding of circuit court that two voters were not residents of county on date of the election. Edwards v. Williams, 234 Ark. 1113, 356 S.W.2d 629 (1962).

Where husband and wife moved to Pulaski County, buying a home in the county and assessing their personal taxes there, still owning their home in Greene County, paying their poll taxes there and intending to return to Greene County when the husband attained the age of retirement in four or five years, they are not qualified to vote in Greene County. Harris v. Textor, 235 Ark. 497, 361 S.W.2d 75 (1962).

A voter who lived with her parents in the county while husband was overseas, and who considered Arkansas her home, at least until her husband returned, met the constitutional requirements of residence, although she moved from county only four days after election. Pike County School Dist. No. 1 v. Pike County Bd. of Educ., 247 Ark. 9, 444 S.W.2d 72 (1969).

Persons who were temporarily residing outside the state, but continued to pay taxes on personalty in the county and voted by absentee ballot, could be considered as having maintained their residence in the state and county. Pike County School Dist. No. 1 v. Pike County Bd. of Educ., 247 Ark. 9, 444 S.W.2d 72 (1969).

In resolving the asserted validity of voting residence, the two important features are the intent of the voter with respect to residency and the conduct of the voter, which must be reasonably consistent with the asserted residency. Pike County School Dist. No. 1 v. Pike County Bd. of Educ., 247 Ark. 9, 444 S.W.2d 72 (1969).

Where the alderman had moved to California and voted there, even though he claimed he had never changed his residence from Arkansas, there was substantial evidence to support the judgment that he was ineligible as alderman because he was not a qualified elector of the city. Charisse v. Eldred, 252 Ark. 101, 477 S.W.2d 480 (1972).

Durational residency requirements cannot be upheld except to the extent they are realistically related to reasonable registration requirements. Meyers v. Jackson, 390 F. Supp. 37 (E.D. Ark. 1975).

Write-in Candidates.

Statutory provision prohibiting voting for write-in candidates at city elections is constitutional. Davidson v. Rhea, 221 Ark. 885, 256 S.W.2d 744 (1953).

Cited: Phillips v. Melton, 222 Ark. 162, 257 S.W.2d 931 (1953); Mobley v. Conway County Court, 236 Ark. 163, 365 S.W.2d 122 (1963); Faubus v. Miles, 237 Ark. 957, 377 S.W.2d 601 (1964); Maxwell v. Stephens, 348 F.2d 325 (8th Cir. 1965); Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968); Martin v. Haas, 2018 Ark. 283, 556 S.W.3d 509 (2018).

§ 2. Right of suffrage.

Elections shall be free and equal. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage; nor shall any law be enacted whereby such right shall be impaired or forfeited, except for the commission of a felony, upon lawful conviction thereof. [As amended by Const. Amend. 85.]

Publisher's Notes. The former clause prohibiting the registration of voters was superseded by Ark. Const. Amend. 39.

Ark. Const. Amend. 85, which amended this section, was proposed by S.J.R. 4 during the 2007 Regular Session and adopted at the 2008 general election by a vote of 714,128 for and 267,326 against.

Before amendment by Amend. 85, this section read:

Ҥ 2. Right of suffrage.

“Elections shall be free and equal. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage; nor shall any law be enacted, whereby the right to vote at any election shall be made to depend upon any previous registration of the elector's name; or whereby such right shall be impaired or forfeited, except for the commission of a felony at common law, upon lawful conviction thereof.”

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state criminal disenfranchisement provisions. 10 A.L.R.6th 31.

Case Notes

Election Statutes.

Election statutes are to be regarded as mandatory before, but not after, an election. Henderson v. Gladish, 198 Ark. 217, 128 S.W.2d 257 (1939).

Registration.

The legislature has power (by virtue of Amendment 39) to make registration a prerequisite to voting in any election. Faubus v. Miles, 237 Ark. 957, 377 S.W.2d 601 (1964).

Special Elections.

Where the Board of Election Commissioners had no power or authority to call or hold a new election, the court could not use a writ of mandamus to direct it to do so since that would confer on the board a power that did not exist, and it is the function of the legislature, not the courts, to create rights of action or provide relief where means of redress have not been designated. Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980).

Void Elections.

Trial court properly held that, where an election for Justice of the Peace provided 183 voters with ballots omitting a selection space for the Justice of the Peace race, the outcome of the election at issue was rendered uncertain and required that the election be voided. Whitley v. Cranford, 354 Ark. 253, 119 S.W.3d 28 (2003).

Write-in Candidates.

Statutory provision prohibiting voting for write-in candidates at city elections is constitutional. Davidson v. Rhea, 221 Ark. 885, 256 S.W.2d 744 (1953).

Cited: Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989); Republican Party v. Faulkner County, 49 F.3d 1289 (8th Cir. 1995).

§ 3. [Repealed.]

Publisher's Notes. This section, concerning the manner of conducting elections, was repealed and replaced by Ark. Const. Amend. 50. Const. Amend. 81 later repealed section 3 of Amend. 50.

Cross References. Elections by ballot or voting machine, Ark. Const. Amend. 50.

Protection of secrecy of votes, Ark. Const. Amend. 81.

§ 4. Privilege of electors from arrest.

Electors shall, in all cases (except treason, felony and breach of the peace,) be privileged from arrest during their attendance at elections, and going to and from the same.

§ 5. [Repealed.]

Publisher's Notes. Ark. Const. Amend. 85, which repealed this section, was proposed by S.J.R. 4 during the 2007 Regular Session and adopted at the 2008 general election by a vote of 714,128 for and 267,326 against.

Before repeal, this section read:

Ҥ 5. Idiots and insane persons.

“No idiot or insane person shall be entitled to the privileges of an elector.”

§ 6. Violation of election laws — Penalty.

Any persons who shall be convicted of fraud, bribery, or other willful and corrupt violation of any election law of this State, shall be adjudged guilty of a felony, and disqualified from holding any office of trust or profit in this State.

Research References

Ark. L. Rev.

Official Misconduct under the Arkansas Criminal Code, 30 Ark. L. Rev. 160.

Comments: Removal and Discipline of Judges in Arkansas, Porter, 32 Ark. L. Rev. 545.

Wills, Constitutional Crisis: Can the Governor (or Other State Officeholder) Be Removed from Office in a Court Action after Being Convicted of a Felony?, 50 Ark. L. Rev. 221.

Case Notes

Forfeiture of Office.

When the question is presented, it may be found that the power is implied for the legislature to provide for a method ascertaining and declaring the forfeiture of office. Speer v. Wood, 128 Ark. 183, 193 S.W. 785 (1917).

Cited: Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989).

§ 7. Soldiers and sailors — Residence — Voting rights.

No soldier, sailor, or marine, in the military or naval service of the United States, shall acquire a residence by reason of being stationed on duty in this State.

Case Notes

Divorce.

A soldier of the United States must meet the residency requirements of the state, apart from his military service, for two months before filing divorce suit in the state. Kennedy v. Kennedy, 205 Ark. 650, 169 S.W.2d 876 (1943).

A soldier may not acquire residence in the state from mere fact of being stationed in the state, but must have residence for two months before filing suit for divorce apart from that service. Mohr v. Mohr, 206 Ark. 1094, 178 S.W.2d 502 (1944).

Evidence was sufficient to show that soldier, who had resided in state for three months before divorce suit was filed, intended to make his residence in Arkansas; thus, he was an Arkansas resident and entitled to bring suit for divorce. Walther v. Walther, 233 Ark. 155, 343 S.W.2d 408 (1961).

Intent.

Although a soldier does not become a resident by reason of being stationed in the state, he may acquire such residence by residing in the state for three months with animus manendi. Mohr v. Mohr, 206 Ark. 1094, 178 S.W.2d 502 (1944).

§ 8. Time of holding elections.

The general elections shall be held biennially, on the days and at times fixed by the General Assembly. [As amended by Const. Amend. 85.]

Publisher's Notes. Ark. Const. Amend. 85, which amended this section, was proposed by S.J.R. 4 during the 2007 Regular Session and adopted at the 2008 general election by a vote of 714,128 for and 267,326 against.

Before amendment by Amend. 85, this section read: “The general elections shall be held biennially, on the first Monday of September; but the General Assembly may, by law, fix a different time.”

Cross References. Time of general election, § 7-5-102.

Case Notes

Postponement.

The act changing the time of election from September to November will not be construed as requiring the election of successors for men elected for an additional two years, but rather to postpone the commencement of terms of office of the men later elected. Hendricks v. Hodges, 122 Ark. 82, 182 S.W. 538 (1916).

The legislature was empowered to change the time of the general election, resulting in the postponement of the time of appointment of a county examiner. Barnett v. Sutterfield, 129 Ark. 461, 196 S.W. 470 (1917).

Readjustment of Terms.

The legislature has the power to readjust the commencement of official terms within reasonable limits. Hutcheson v. Pitts, 170 Ark. 248, 278 S.W. 639 (1926).

Cited: Glover v. Henry, 231 Ark. 111, 328 S.W.2d 382 (1959).

§ 9. Testimony in election contest — Self-incrimination.

In trials of contested elections and in proceedings for the investigation of elections, no person shall be permitted to withhold his testimony on the ground that it may criminate himself or subject him to public infamy: but such testimony shall not be used against him in any judicial proceeding, except for perjury in giving such testimony.

Research References

Ark. L. Rev.

Theory of Testimonial Competency and Privilege, 4 Ark. L. Rev. 377.

§ 10. Election officers.

The General Assembly shall determine the qualifications of an election officer. [As amended by Const. Amend. 85.]

Publisher's Notes. Ark. Const. Amend. 85, which amended this section, was proposed by S.J.R. 4 during the 2007 Regular Session and adopted at the 2008 general election by a vote of 714,128 for and 267,326 against.

Before amendment, this section read:

“No person shall be qualified to serve as an election officer, who shall hold, at the time of the election, any office, appointment, or employment in or under the government of the United States, or of this State, or in any city or county or any municipal board, commission or trust in any city, save only the justices of the peace, and aldermen, notaries public and persons in the militia service of the State. Nor shall any election officer be eligible to any civil office to be filled at an election at which he shall serve — save only to such subordinate municipal or local offices, below the grade of city or county officers, as shall be designated by general law.”

Case Notes

Applicability.

The provision applies to all civil offices without respect to rank or grade until the legislature designates subordinate municipal or local offices as exempt. Faulkner v. Woodard, 203 Ark. 254, 156 S.W.2d 243 (1941) (decided under prior version of this section).

Constitutional Officers.

Election officers are recognized by the Constitution as constitutional officers. Henderson v. Gladish, 198 Ark. 217, 128 S.W.2d 257 (1939) (decided under prior version of this section).

Justice of Peace.

An incumbent justice of the peace may contest the eligibility of his successor to hold the office, where the successor had acted as a judge of the election, and may continue in office until a successor is qualified. Faulkner v. Woodard, 203 Ark. 254, 156 S.W.2d 243 (1941) (decided under prior version of this section).

School Election.

A statute providing that school directors shall serve as judges of school election or designate such judges does not manifest the legislative intent that the office was exempted from the provision of the Constitution. State ex rel. Robinson v. Jones, 194 Ark. 445, 108 S.W.2d 901 (1937) (decided under prior version of this section).

Strict Compliance.

There should be strict and literal compliance with the provisions of this section and no exemptions should be made unless made so by the legislature in clear and unmistakable terms. State ex rel. Robinson v. Jones, 194 Ark. 445, 108 S.W.2d 901 (1937) (decided under prior version of this section).

Cited: Morgan v. Neuse, 314 Ark. 4, 857 S.W.2d 826 (1993); Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995).

§ 11. Votes to be counted.

If the officers of any election shall unlawfully refuse or fail to receive, count, or return the vote or ballot of any qualified elector, such vote or ballot shall nevertheless be counted upon the trial of any contests arising out of said election.

Research References

Ark. L. Notes.

Cihak and Springman, HAVA and Arkansas Election Law Reform: Compliance and Promise, 2006 Arkansas L. Notes 1.

Case Notes

In General.

All legal votes cast at an election must be counted, whether returned or not, or whether any irregularities attended the election. Govan v. Jackson, 32 Ark. 553 (1877).

Election at Improper Time.

Where an election is not held at the proper time, the court may not declare what would have been the voter's choice in case an election had been held. Chism v. Tucker, 101 Ark. 112, 141 S.W. 503 (1911).

Primary Election.

Although the constitutional provisions in regards to elections do not apply to primary elections, the legislature so provides in requiring that primary elections be conducted in conformity with the general election laws of the state. Craig v. Sims, 160 Ark. 269, 255 S.W. 1 (1923).

Regulations for Casting Ballots.

This provision, by reference to unlawful refusal or failure to count a particular vote, plainly contemplates that laws may be enacted to regulate the casting of ballots, and statute forbidding the counting of write-in votes where timely notice of candidacy is not given does not violate this section. Byrd v. Short, 228 Ark. 369, 307 S.W.2d 871 (1957).

Votes for Ineligible Candidate.

Votes cast for an ineligible candidate will not entitle him who receives the next highest number of votes to the office. State ex rel. Robinson v. Jones, 194 Ark. 445, 108 S.W.2d 901 (1937).

Cited: Henderson v. Gladish, 198 Ark. 217, 128 S.W.2d 257 (1939).

§ 12. Elections by representative — Viva voce vote.

All elections by persons acting in a representative capacity shall be viva voce.

Cross References. Election of officers by General Assembly, Ark. Const., Art. 5, § 14.

§ 13. Procedures for elections with one candidate.

  1. As used in this section, “election” means:
    1. A primary election;
    2. A special primary election;
    3. A general election; and
    4. A special election.
  2. The General Assembly may enact laws providing that if there is only one (1) person qualified as a candidate for an office after all deadlines for filing as a candidate have passed so that there will be only one (1) name listed on the election ballot for the office and no write-in candidates qualify to appear as candidates for the office on the election ballot:
    1. The one (1) candidate for the office shall be declared elected and his or her name shall not appear on the election ballot;
    2. The name of the candidate declared elected shall be certified as elected in the same manner as if the candidate had been voted upon at the election; and
    3. The election shall not be held if no other office or issue is on the election ballot. [As added by Const. Amend. 95.]

Publisher's Notes. Ark. Const. Amend. 95, which added this section effective January 1, 2017, was proposed by H.J.R. 1027 during the 2015 Regular Session and adopted at the November 2016 general election by a vote of 747,856 for and 317,093 against.

Article 4 Departments

Research References

Am. Jur. 16A Am. Jur. 2d, Constitutional Law, § 237 et seq.

C.J.S. 16 C.J.S., Constitutional Law, § 272 et seq.

§ 1. Departments of government.

The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.

Research References

Ark. L. Rev.

Constitutional Law — Separation of Powers — Legislative Delegation of Judicial Powers, 10 Ark. L. Rev. 213.

The Executive Branch — Fusing the Division of Authority, 24 Ark. L. Rev. 182.

Gingerich, Mandamus of Unexecuted Executive Discretionary Powers, 33 Ark. L. Rev. 765.

Powers, Separation of Powers: The Unconstitutionality of the Arkansas Legislative Council, 36 Ark. L. Rev. 124.

Note, Spradlin v. Arkansas Ethics Commission: A Hard-Line Approach to Separation of Powers, 48 Ark. L. Rev. 755.

Lessons From Lake View: Some Questions and Answers from Lake View School District No. 25 v. Huckabee, 56 Ark. L. Rev. 519 (2003).

Note, To Truly Reform We Must Be Informed: Davis v. Parham, the Separation of Powers Doctrine, and the Constitutionality of Tort Reform in Arkansas, 59 Ark. L. Rev. 781.

Lauren E. Murphy, Comment: Third Time's a Charm: Whether Hobbs v. Jones Inspired a Durable Change to Arkansas's Method of Execution Act, 66 Ark. L. Rev. 813 (2013).

U. Ark. Little Rock L.J.

Stafford, Separation of Powers and Arkansas Administrative Agencies: Distinguishing Judicial Power and Legislative Power, 7 U. Ark. Little Rock L.J. 279.

Survey — Constitutional Law, 10 U. Ark. Little Rock L.J. 129.

U. Ark. Little Rock L. Rev.

Annual Survey of Caselaw, Constitutional Law, 25 U. Ark. Little Rock L. Rev. 908.

Note, Constitutional Law — Education and Equal Protection — Towards Intelligence and Virtue: Arkansas Embarks on a Court-Mandated Search for an Adequate and Equitable School Funding System. Lake View School District No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002), 26 U. Ark. Little Rock L. Rev. 143 (2003).

Justice Robert L. Brown, A Judicial Retrospective: Significant Decisions by the Arkansas Supreme Court From 1991 Through 2011, 34 U. Ark. Little Rock L. Rev. 219 (2012).

Sevawn Foster, Note: Constitutional Law — Arkansas’s Current Procedural Rulemaking Conundrum: Attempting to Quell the Political Discord, 37 U. Ark. Little Rock L. Rev. 105 (2014).

Case Notes

Delegation of Powers.

The General Assembly has from time to time created a board or commission empowered to carry out a regulatory function and has authorized the Governor to execute the function of appointing board members without senate approval, and this is appropriate where the constitution is silent on which branch of government should make the appointments. Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923 (1991).

Even though the Public Service Commission is created by the General Assembly and performs legislative functions, the General Assembly may still delegate the right to appoint commissioners to the Governor. Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923 (1991).

Empowering the Governor to appoint special Public Service Commission commissioners, without senate approval, is a valid delegation of authority by the legislature to the branch of government that is equipped to execute and implement legislative mandates; therefore, § 23-2-102(a) passes constitutional muster. Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923 (1991).

The judicial branch cannot take away the discretion to make a decision which is reposed in the executive branch. Harvey v. Clinton, 308 Ark. 546, 826 S.W.2d 236 (1992).

The absence of language in § 14-94-127, directing the chancery court to use a particular method for computing the tax levy, bestows upon the judiciary a nondelegable power of the legislature in violation of the separation of powers provisions of the Arkansas Constitution. Robert D. Holloway, Inc. v. Pine Ridge Addition Residential Property Owners, 332 Ark. 450, 966 S.W.2d 241 (1998).

Where defendant pointed to no rules of civil procedure which would conflict with the presumption of being uninsured created in former version of § 27-19-503 of the Motor Vehicle Safety Responsibility Act by the Arkansas General Assembly, the section is not unconstitutional based on any separation of powers concerns. Throesch v. United States Fid. & Guar. Co., 100 F. Supp. 2d 934 (E.D. Ark. 2000), aff'd in part, reversed in part, 255 F.3d 551 (8th Cir. 2001).

Former § 23-52-104(b) was an invalid attempt to evade the usury provisions of former Ark. Const., Art. 19, § 13 and, further, such an attempt violated the constitutional mandate requiring separation of powers set forth in this Article. Luebbers v. Money Store, Inc., 344 Ark. 232, 40 S.W.3d 745 (2001).

Circuit court lacked jurisdiction to enjoin the casting of a vote by the legislator notwithstanding that, under Matthews v. Bailey , 198 Ark. 830, 131 S.W.2d 425 (1939), such a vote, if both decisive and defective, might have affected the validity of a contested enactment; pursuant to Ark. Const., Art. 5, § 11, the issue of whether the legislator was required to reside in the district from where he was elected was a matter to be determined by the Arkansas House of Representatives. Magnus v. Carr, 350 Ark. 388, 86 S.W.3d 867 (2002).

The system of funding the public school system in place between 1994 and 2000 violated the provisions of Ark. Const., Art. 14, § 1 and Art. 2, §§ 2, 3, and 18, but it was the responsibility of the General Assembly and not the judiciary to create a system that complied with those constitutional requirements. Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002), cert. denied, 538 U.S. 1035, 123 S. Ct. 2097, 155 L. Ed. 2d 1066 (2003).

The Child Agency Review Board violated the separation of powers doctrine and exceeded the authority given to it by the Arkansas General Assembly when it promulgated § 200.3.2 of the Minimum Licensing Standards for Child Welfare Agencies, which prohibited persons with adult homosexual members in their household from becoming foster parents; although the Board was required to promulgate regulations to protect the health, safety, and welfare of foster children, there was no evidence that living with an adult homosexual placed foster children in danger and the Board was not required to issue regulations based upon moral standards or beliefs. Dep't of Human Servs. v. Howard, 367 Ark. 55, 238 S.W.3d 1 (2006).

Allegedly injured driver brought suit against another motorist, who then brought suit against a third party; the jury determined that the third party was 100 percent at fault. The allegedly injured driver attacked the constitutionality of § 16-55-201 and § 16-55-212, alleging that Ark. Const. Amend. 80, § 3, mandated the supreme court to prescribe all rules of procedure, and that the legislature could not infringe on this power because such an infringement would violate this section and Ark. Const., Art. 4, § 2; however, the matter was moot because any decision by the supreme court would have no practical effect on the case. Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007).

Workers' compensation claimant failed to demonstrate a violation of the separation of powers doctrine on the part of any private interest by the procedure used by the Workers' Compensation Commission because it was impossible to do so, as the doctrine dealt solely with the relationship of the three branches of government, and placed no limits whatsoever on private citizens. The claimant failed to assert that the judiciary either assigned or allowed tasks that were more properly accomplished by other branches of the government; neither of the affidavits of former administrative law judges contained any factual violations regarding their judicial independence or integrity caused by the executive branch of the State of Arkansas, and to the contrary, they both asserted that just the opposite was true. Long v. Wal-Mart Stores, 98 Ark. App. 70, 250 S.W.3d 263 (2007).

Supreme Court declared the entirety of the Method of Execution Act of 2009 unconstitutional. The legislature abdicated its responsibility and passed to the Department of Correction the unfettered discretion to determine all protocol and procedures, most notably the chemicals to be used, for a state execution. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844 (2012).

Under the separation of powers doctrine, the State Board of Election Commissioners lacked authority to establish a procedure for absentee voters where the General Assembly had provided a method by which an in-person voter could have cured any failure to provide proof of identity, did not provide a similar method for absentee voters, and although the Board had authority to promulgate rules to assure fair and orderly election procedures, it lacked authority to create election procedures. Ark. State Bd. of Election Comm'rs v. Pulaski County Election Comm'n, 2014 Ark. 236, 437 S.W.3d 80 (2014).

Acts 2013, No. 139 did not violate separation of powers by delegating to the Department of Correction power to select a barbiturate to use in lethal injections because Act 139 gave guidance on how to carry out the death penalty, drugs to be used, the order in which to administer the drugs, how much to administer, and the policy for carrying out the death penalty; thus, reasonable guidelines bounded Act 139’s delegation of authority. Hobbs v. McGehee, 2015 Ark. 116, 458 S.W.3d 707 (2015).

Acts 2013, No. 139 was not unconstitutional for not stating qualifications of those involved in lethal injections because such level of detail was not constitutionally required. Hobbs v. McGehee, 2015 Ark. 116, 458 S.W.3d 707 (2015).

Executive Privilege.

Executive privilege exists in Arkansas. Protect Fayetteville v. City of Fayetteville, 2019 Ark. 28, 566 S.W.3d 105 (2019).

Circuit court erred in denying the State's motions for a protective order and to quash the subpoenas served on two state legislators because the Speech and Debate Clause affords legislators privilege from certain discovery and testimony and the privilege extends beyond statements and acts made on the literal floor of the House; and the Arkansas Constitution provides for the executive privilege in the separation-of-powers provisions. Protect Fayetteville v. City of Fayetteville, 2019 Ark. 28, 566 S.W.3d 105 (2019).

Judiciary Authority.

Trial court properly dismissed the complaint with prejudice because the Arkansas Deceptive Trade Practices Act, § 4-88-101 et seq., did not apply to the practice of law, and the Arkansas Supreme Court made rules regulating the practice of law and that responsibility could not be discharged if it were dependent upon or controlled by statutes enacted by the Arkansas General Assembly; the attorney agreed to represent the husband in the medical malpractice action, which was dismissed with prejudice because the attorney was not authorized to practice law in Arkansas. Preston v. Stoops, 373 Ark. 591, 285 S.W.3d 606 (2008).

Because the parties did not dispute that service of process was improper under § 12-62-403, which was constitutional, was substantive legislation, and thus, did not violate the separation of powers doctrine in this section, a circuit court's continued exercise of jurisdiction over a national guard member was a plain, manifest, clear, and gross abuse of discretion. Cato v. Craighead County Circuit Court, 2009 Ark. 334, 322 S.W.3d 484 (2009).

Jury Powers.

The fact that a jury may take into consideration when a person convicted of a certain class of felony is eligible for parole or transfer, § 16-97-103, is in no way a usurpation of the executive department's power and authority to decide when an individual defendant should be released, and does not violate Ark. Const., Art. 4. Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997).

Prosecutor's Authority.

Requirement under § 16-89-108 and Ark. R. Crim. P. 31.1, that a prosecutor approve defendant's request to plead guilty and waive a jury trial, did not violate separation of powers provisions at Ark. Const., Art. 4, §§ 1 and 2 because defendant had no constitutional right to unilaterally waive a jury trial. Whitlow v. State, 357 Ark. 290, 166 S.W.3d 45 (2004).

Circuit court violated the separation of powers doctrine under this section and Ark. Const., Art. 4, § 2 by dismissing a charge in a delinquency petition against a juvenile sua sponte, as it usurped a prosecutor's duties under Ark. Const. Amend. 21, § 1 and § 9-27-310(b)(1); thus, the court lacked subject matter jurisdiction to enter the order. State v. D.S., 2011 Ark. 45, 378 S.W.3d 87 (2011).

Section 9-27-318, which vested prosecutors with the discretion to bring felony charges against 16-year-olds in the criminal divisions of circuit courts, was substantive law and not a rule of pleading, practice, and procedure; therefore, it did not violate separation of powers under this section or § 2 of Article 4 of the Arkansas state constitution. Also, § 9-27-318(c) did not deny a juvenile equal protection of the law because treatment as a juvenile was not an inherent right and could be modified by the legislature. C.B. v. State, 2012 Ark. 220, 406 S.W.3d 796 (2012).

While the juvenile was charged with second-degree terroristic threatening and the circuit court in effect sua sponte amended the charge when it found the juvenile guilty of second-degree assault, and second-degree assault is not a lesser-included offense of second-degree terroristic threatening, the juvenile failed to raise his due process challenge at the circuit court level and therefore failed to preserve the issue for appellate review. I.K. v. State, 2018 Ark. App. 584, 564 S.W.3d 579 (2018).

Cited: Ball v. Roberts, 291 Ark. 84, 722 S.W.2d 829 (1987); Chaffin v. Ark. Game & Fish Comm'n, 296 Ark. 431, 757 S.W.2d 950 (1988); McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989); Abbott v. Spencer, 302 Ark. 396, 790 S.W.2d 171 (1990); Ark. Motor Carriers Ass'n v. Pritchett, 303 Ark. 620, 798 S.W.2d 918 (1990); Spradlin v. Ark. Ethics Comm'n, 314 Ark. 108, 858 S.W.2d 684 (1993); City of Lowell v. M & N Mobile Home Park, 323 Ark. 332, 916 S.W.2d 95 (1996); Griffen v. Ark. Judicial Discipline & Disability Comm'n, 355 Ark. 38, 130 S.W.3d 524 (2003).

§ 2. Separation of departments.

No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Research References

Ark. L. Rev.

Constitutional Law — Separation of Powers — Legislative Delegation of Judicial Powers, 10 Ark. L. Rev. 213.

Powers, Separation of Powers: The Unconstitutionality of the Arkansas Legislative Council, 36 Ark. L. Rev. 124.

Note, Spradlin v. Arkansas Ethics Commission: A Hard-Line Approach to Separation of Powers, 48 Ark. L. Rev. 755.

Lessons From Lake View: Some Questions and Answers from Lake View School District No. 25 v. Huckabee, 56 Ark. L. Rev. 519 (2003).

Note, To Truly Reform We Must Be Informed: Davis v. Parham, The Separation of Powers Doctrine, and the Constitutionality of Tort Reform in Arkansas, 59 Ark. L. Rev. 781.

Lauren E. Murphy, Comment: Third Time's a Charm: Whether Hobbs v. Jones Inspired a Durable Change to Arkansas's Method of Execution Act, 66 Ark. L. Rev. 813 (2013).

U. Ark. Little Rock L.J.

Jans, Survey of Constitutional Law, 3 U. Ark. Little Rock L.J. 184.

Stafford, Separation of Powers and Arkansas Administrative Agencies: Distinguishing Judicial Power and Legislative Power, 7 U. Ark. Little Rock L.J. 279.

Survey — Constitutional Law, 10 U. Ark. Little Rock L.J. 129.

Wolfram, Lawyer Turf and Lawyer Regulation — The Role of the Inherent-Powers Doctrine, 12 U. Ark. Little Rock L.J. 1.

U. Ark. Little Rock L. Rev.

Annual Survey of Caselaw, Constitutional Law, 25 U. Ark. Little Rock L. Rev. 908.

Note, Constitutional Law — Education and Equal Protection — Towards Intelligence and Virtue: Arkansas Embarks on a Court-Mandated Search for an Adequate and Equitable School Funding System. Lake View School District No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002), 26 U. Ark. Little Rock L. Rev. 143 (2003).

Justice Robert L. Brown, A Judicial Retrospective: Significant Decisions by the Arkansas Supreme Court From 1991 Through 2011, 34 U. Ark. Little Rock L. Rev. 219 (2012).

Sevawn Foster, Note: Constitutional Law — Arkansas’s Current Procedural Rulemaking Conundrum: Attempting to Quell the Political Discord, 37 U. Ark. Little Rock L. Rev. 105 (2014).

Case Notes

In General.

Neither of the three separate departments of government is subordinate to the other and neither can arrogate to itself any control over either one of the others in matters which have been confided by the constitution to such other department; the Legislature, under the separation of powers, can neither be coerced nor controlled by judicial power such as a writ of mandamus. Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979).

Former Ark. Const., Art. 19, § 13, which permitted maximum interest rates at 5% above the federal discount rate, did not violate the constitutional requirements of separation of powers. W.E. Tucker Oil Co. v. Portland Bank, 285 Ark. 453, 688 S.W.2d 293 (1985).

According to the separation of powers doctrine, one department cannot interfere with, or encroach on, or exercise the powers of either of the other departments. Ball v. Roberts, 291 Ark. 84, 722 S.W.2d 829 (1987).

For each branch to operate as constitutionally envisioned, one branch must not be subordinated to either or both of the other branches, and one branch must not take control of one or both of the other branches. City of Lowell v. M & N Mobile Home Park, 323 Ark. 332, 916 S.W.2d 95 (1996).

Argument Not Considered.

In a civil forfeiture proceeding, an owner was not entitled to have a default judgment entered in favor of the state set aside based on substantial compliance because the judgment was not void since the summons was sufficient; moreover, the owner failed to present a meritorious defense. Due to that failure, a separation of powers argument was not considered. Solis v. State, 371 Ark. 590, 269 S.W.3d 352 (2007).

Concurrent Offices.

The office of state treasurer, as well as those of secretary of state, auditor, sheriff, coroner, constable and militia officers, are executive; the office of justice of the peace is judicial, and no person can at the same time hold the offices of treasurer and justice of the peace. A person holding one office has a right, if elected to another which he cannot hold at the same time, to accept it, but in so doing he vacates, eo instanti, the first office. State v. Hutt, 2 Ark. 282 (1840).

—Chief of Police and Sheriff.

The offices of chief of police and sheriff are not incompatible so as to make the acceptance of one a resignation of the other. Peterson v. Culpepper, 72 Ark. 230, 79 S.W. 783 (1904).

—County Judge and Town Recorder.

A person may hold the office of town recorder and county judge at the same time. State ex rel. Murphy v. Townsend, 72 Ark. 180, 79 S.W. 782 (1904).

—Justice of Peace and Sheriff.

A person can not hold the offices of justice of the peace and deputy sheriff at the same time. The acceptance of the latter vacates the former. State Bank v. Curran, 10 Ark. 142 (1849).

—Pardon and Parole Board Member and Legislator.

This section clearly precludes a member of the General Assembly from serving as a member of the state board of pardons and paroles during the term he has been elected to serve as a member of the General Assembly. Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963).

—Prosecuting Attorney and Legislator.

Where circuit judge appointed a special prosecuting attorney who was a member of the General Assembly, and defendant asserted that as a member of the general assembly such special prosecutor was prohibited from serving because of this section, he was a de facto officer and defendant could not question his authority to act as such. Owen v. State, 263 Ark. 493, 565 S.W.2d 607 (1978).

—State Board or Commission Member and Legislator.

A senator violates the separation of powers doctrine when he serves on the Board of Workforce Education and/or the Capitol Arts and Grounds Commission. State Bd. of Workforce Educ. v. King, 336 Ark. 409, 985 S.W.2d 731 (1999).

—State College Board Member and Legislator.

This section clearly precludes a member of the General Assembly from serving as a member of the board of a state supported college during the term he has been elected to serve as a member of the General Assembly. Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963).

Delegation of Powers.

Certain duties not essentially judicial may be imposed upon judges in those cases where, by the Constitution, such duties do not inhere in another department of the government, but authority set aside to the executive department cannot be delegated to judges. Oates v. Rogers, 201 Ark. 335, 144 S.W.2d 457 (1940).

The legislature has no right to delegate the lawmaking power to commissions and boards established by the legislature, but may delegate the power to determine facts upon which the law makes or intends to make its action depend, and general provisions may be set forth with power given to those who are to act under such general provisions to complete the details. McArthur v. Smallwood, 225 Ark. 328, 281 S.W.2d 428 (1955).

The power to designate certain ambulances and other vehicles as emergency vehicles cannot be delegated to the chiefs of police of cities without setting up adequate standards and guide lines to govern their discretion in such designations. Walden v. Hart, 243 Ark. 650, 420 S.W.2d 868 (1967).

While the General Assembly may not delegate its legislative authority, it may, by providing guidelines, delegate the power to determine certain facts, or the happening of a certain contingency, on which the operation of the statute is by its terms made to depend. Venhaus v. State ex rel. Lofton, 285 Ark. 23, 684 S.W.2d 252 (1985).

Even though the Public Service Commission is created by the General Assembly and performs legislative functions, the General Assembly may still delegate the right to appoint commissioners to the Governor. Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923 (1991).

Empowering the Governor to appoint special Public Service Commission commissioners, without senate approval, is a valid delegation of authority by the legislature to the branch of government that is equipped to execute and implement legislative mandates, therefore, § 23-2-102(a) passes constitutional muster. Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923 (1991).

Workers' compensation claimant failed to demonstrate a violation of the separation of powers doctrine on the part of any private interest by the procedure used by the Workers' Compensation Commission because it was impossible to do so, as the doctrine dealt solely with the relationship of the three branches of government, and placed no limits whatsoever on private citizens. The claimant failed to assert that the judiciary either assigned or allowed tasks that were more properly accomplished by other branches of the government; neither of the affidavits of former administrative law judges contained any factual violations regarding their judicial independence or integrity caused by the executive branch of the State of Arkansas, and to the contrary, they both asserted that just the opposite was true. Long v. Wal-Mart Stores, 98 Ark. App. 70, 250 S.W.3d 263 (2007).

Supreme Court declared the entirety of the Method of Execution Act of 2009 unconstitutional. The legislature abdicated its responsibility and passed to the Department of Correction the unfettered discretion to determine all protocol and procedures, most notably the chemicals to be used, for a state execution. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844 (2012).

Acts 2013, No. 139 did not violate separation of powers by delegating to the Department of Correction power to select a barbiturate to use in lethal injections because Act 139 gave guidance on how to carry out the death penalty, drugs to be used, the order in which to administer the drugs, how much to administer, and the policy for carrying out the death penalty; thus, reasonable guidelines bounded Act 139’s delegation of authority. Hobbs v. McGehee, 2015 Ark. 116, 458 S.W.3d 707 (2015).

Acts 2013, No. 139 was not unconstitutional for not stating qualifications of those involved in lethal injections because such level of detail was not constitutionally required. Hobbs v. McGehee, 2015 Ark. 116, 458 S.W.3d 707 (2015).

—Improper.

Statute delegating to circuit and chancery judges appointment of county collector was held unconstitutional. Oates v. Rogers, 201 Ark. 335, 144 S.W.2d 457 (1940).

Statute which provided for compulsory continuance of cases where member of legislature was attorney in case, regardless of when such legislative member became associated with the case, were unconstitutional as depriving the courts of power to determine a judicial question. McConnell v. State, 227 Ark. 988, 302 S.W.2d 805 (1957).

In view of the separation of powers provision contained herein, it would not appear that the legislature could validly confer administrative powers on the circuit courts. Parham v. Dove, 271 F.2d 132 (8th Cir. 1959); Dove v. Parham, 181 F. Supp. 504 (E.D. Ark. 1960), aff'd, 282 F.2d 256 (8th Cir. 1960).

Statute is an unconstitutional delegation of power to a federal agency expressly reserved to our legislature by this article. Cheney v. St. Louis Sw. Ry., 239 Ark. 870, 394 S.W.2d 731 (1965).

Statute authorizing the circuit court to set salaries for public defenders and a judicial order directing the county to pay such money were unconstitutional violations of separation of powers since setting of salaries and payment of expenses is a legislative function. Pulaski County ex rel. Mears v. Adkisson, 262 Ark. 636, 560 S.W.2d 222 (1978).

By designating the Chief Justice of the Supreme Court to appoint one of the members of a commission, the portion of Init. Meas. 1990, No. 1, creating the commission, codified as § 7-6-217, violated the separation of powers and was unconstitutional. Spradlin v. Ark. Ethics Comm'n, 314 Ark. 108, 858 S.W.2d 684 (1993).

Under the separation of powers doctrine, the State Board of Election Commissioners lacked authority to establish a procedure for absentee voters where the General Assembly had provided a method by which an in-person voter could have cured any failure to provide proof of identity, did not provide a similar method for absentee voters, and although the Board had authority to promulgate rules to assure fair and orderly election procedures, it lacked authority to create election procedures. Ark. State Bd. of Election Comm'rs v. Pulaski County Election Comm'n, 2014 Ark. 236, 437 S.W.3d 80 (2014).

— —Domestic Relations.

This section prevents the courts from declaring, without express statutory authority, a right of action in a divorced husband, for the benefit of a child of the marriage, for the alienation of affections of the child and wife from the husband, or the loss by the child of the security of a home life against the alienator. Lucas v. Bishop, 224 Ark. 353, 273 S.W.2d 397 (1954).

— —Guidelines Missing.

Statute providing for minimum prevailing wages to be paid on certain state, county, municipal or other taxing agency public construction projects according to wages determined by the secretary of labor of the United States for corresponding classes of laborers and mechanics on projects of similar character in the area where the work is to be performed is unconstitutional in that it fails to establish a standard or formula by which a wage scale may be formulated. Crowly v. Thornbrough, 226 Ark. 768, 294 S.W.2d 62 (1956).

Where the application of a law depends on the uncontrolled discretion of a county judge, it is an unconstitutional delegation of power. Bennett v. NAACP, 236 Ark. 750, 370 S.W.2d 79 (1963).

—Proper.

The duties of a county judge are primarily ministerial and the legislature has the right to add new ministerial duties. Oates v. Rogers, 201 Ark. 335, 144 S.W.2d 457 (1940).

Act authorizing appointment of delinquent personal tax collector by board composed of county judge, mayors of county seats, and chief county school officer, was held not violative of this provision. Newton v. Edwards, 203 Ark. 18, 155 S.W.2d 591 (1941).

Legislature's delegation of power to prescribe rules of criminal procedure is not unconstitutional nor outside the enabling act, provided the rule in question is truly procedural. Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977).

Statute which limited loans to students who qualified under federal educational standards was not an unconstitutional delegation of legislative power to the federal government since there was no requirement of any action by any federal officer or agency. Turner v. Woodruff, 286 Ark. 66, 689 S.W.2d 527 (1985).

Administrative agencies may possess a combination of powers from the coordinate branches of government without violating the separation of powers principle. Ark. Motor Carriers Ass'n v. Pritchett, 303 Ark. 620, 798 S.W.2d 918 (1990).

— —Employment Security Division Act.

Act creating the Employment Security Division in the Department of Labor and charging such administrative agency with enforcement of provisions of the act was held not violative of this constitutional provision. Hickenbottom v. McCain, 207 Ark. 485, 181 S.W.2d 226, cert. denied, 323 U.S. 777, 65 S. Ct. 189, 89 L. Ed. 621 (1944).

— —General Accounting Procedures Law.

The General Accounting Procedures Law does not authorize the withdrawal of any money from the state treasury and it is not an appropriation act and is not unconstitutional as an unauthorized delegation of legislative powers. Hooker v. Parkin, 235 Ark. 218, 357 S.W.2d 534 (1962).

— —Justice Building Act.

The Arkansas Justice Building Act contained no unlawful delegation of legislative power. McArthur v. Smallwood, 225 Ark. 328, 281 S.W.2d 428 (1955).

— —Revenue Department Building Act.

The act providing for a State Revenue Department Building does not unconstitutionally delegate legislative powers to the Building Commission as it empowers the commission to perform only such ministerial acts as are required to effectuate the overall purpose of the legislature. Holmes v. Cheney, 234 Ark. 503, 352 S.W.2d 943 (1962).

— —Revenue Stabilization Act.

The Revenue Stabilization Act does not delegate powers contrary to this article of the Constitution. Hooker v. Parkin, 235 Ark. 218, 357 S.W.2d 534 (1962).

Executive Power.

The auditor can not exercise any judicial functions. Auditor v. Davies, 2 Ark. 494 (1840); Danley v. Whitley, 14 Ark. (1 Barber) 687 (1854).

Executive Privilege.

Executive privilege exists in Arkansas. Protect Fayetteville v. City of Fayetteville, 2019 Ark. 28, 566 S.W.3d 105 (2019).

Circuit court erred in denying the State's motions for a protective order and to quash the subpoenas served on two state legislators because the Speech and Debate Clause affords legislators privilege from certain discovery and testimony and the privilege extends beyond statements and acts made on the literal floor of the House; and the Arkansas Constitution provides for the executive privilege in the separation-of-powers provisions. Protect Fayetteville v. City of Fayetteville, 2019 Ark. 28, 566 S.W.3d 105 (2019).

Judicial Power.

The holding in Sturdivant v. City of Farmington, 255 Ark. 415, 500 S.W.2d 769 (1973), which made school districts self-insurers when they did not carry insurance, is not unconstitutional as a violation of the separation of powers doctrine of this section. Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984).

The constitutional propriety of de novo review primarily turns upon the character and legal status of the affected interests. If the interests are constitutionally or statutorily preserved, or preserved by private agreement, de novo review is appropriate; however, if the interests are less than fixed and their existence primarily depends on executive or legislative wisdom, de novo review is inappropriate. Ark. Comm'n on Pollution Control & Ecology v. Land Developers, Inc., 284 Ark. 179, 680 S.W.2d 909 (1984).

The separation of powers doctrine was not violated by allowing the county court to exercise jurisdiction over roads within the city. Yates v. Sturgis, 311 Ark. 618, 846 S.W.2d 633 (1993).

Boards, commissions and agencies, which have the authority to issue advisory opinions and guidelines, investigate alleged violations and render findings and disciplinary action thereon, subpoena persons and documents, administer oaths, conduct hearings and take sworn testimony, hire a staff and legal counsel and approve forms prepared by the Secretary of State, are not by these powers rendered judicial in nature nor a part of the judicial department of government. Spradlin v. Ark. Ethics Comm'n, 314 Ark. 108, 858 S.W.2d 684 (1993).

While at times there may be difficulty in discerning whether particular boards, commissions, or other agencies are a part of the legislative department or the executive department — or perhaps belong to some de facto fourth department of government — there can be no doubt that they are not a part of the judicial department. Spradlin v. Ark. Ethics Comm'n, 314 Ark. 108, 858 S.W.2d 684 (1993).

The court released jurisdiction of this case because to retain it would disparage the work of the General Assembly and cast the role of the court into that of a brooding super-legislature, when compliance with the mandate to provide adequate and substantially equal education for students in all Arkansas school districts was already well underway; it is not the role of the Supreme Court of Arkansas, as created by the Arkansas Constitution, and under the fundamental principle of separation of powers, to legislate, to implement legislation, or to serve as a watchdog agency when there is no matter to be presently decided. Lake View Sch. Dist. No. 25 v. Huckabee, 358 Ark. 137, 189 S.W.3d 1 (2004).

Allegedly injured driver brought suit against another motorist, who then brought a claim against a third party; the jury determined that the third party was 100 percent at fault. The allegedly injured driver attacked the constitutionality of § 16-55-201 and § 16-55-212, alleging that Ark. Const. Amend. 80, § 3, mandated the supreme court to prescribe all rules of procedure, and that the legislature could not infringe on this power because such an infringement would violate Ark. Const., Art. 4, § 1, and this section; however, the matter was moot because any decision by the supreme court would have no practical effect on the case. Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007).

Workers' compensation claimant's separation of powers argument failed because he did not show that the administrative law judge (ALJ) who decided his case was under pressure or biased in any way against the claimant because, inter alia, he failed to establish that the ALJ who heard his case was subject to the pressures that had allegedly been exerted by the executive branch against law judges at an earlier time. Murphy v. Forsgren, Inc., 99 Ark. App. 223, 258 S.W.3d 794 (2007).

Trial court properly dismissed the complaint with prejudice because the Arkansas Deceptive Trade Practices Act, § 4-88-101 et seq., did not apply to the practice of law, and the Arkansas Supreme Court made rules regulating the practice of law and that responsibility could not be discharged if it were dependent upon or controlled by statutes enacted by the Arkansas General Assembly; the attorney agreed to represent the husband in the medical malpractice action, which was dismissed with prejudice because the attorney was not authorized to practice law in Arkansas. Preston v. Stoops, 373 Ark. 591, 285 S.W.3d 606 (2008).

Because the parties did not dispute that service of process was improper under § 12-62-403, which was constitutional, was substantive legislation, and thus, did not violate the separation of powers doctrine in this section, a circuit court's continued exercise of jurisdiction over a national guard member was a plain, manifest, clear, and gross abuse of discretion. Cato v. Craighead County Circuit Court, 2009 Ark. 334, 322 S.W.3d 484 (2009).

—Attorneys for Indigent Persons.

Section 16-92-108 [repealed] violates the separation of powers provisions contained in this section, for the right to decide whether an attorney, who regularly practices before a court, can be appointed to represent an indigent defendant in a criminal case is a judicial question, not a legislative one, and so the legislature invaded the province of the judicial branch of government in declaring certain attorneys could not be appointed as counsel in a criminal case. Ball v. Roberts, 291 Ark. 84, 722 S.W.2d 829 (1987).

—Constitutional Convention.

The courts ought not to interfere, so long as a constitutional convention is acting within the scope of its duties in framing a constitution, no matter how much the convention appears to exceed its powers; but courts should interfere in matters outside the convention's proper functions to stop an ultra vires act as readily as they would stop such an act by any other department of government. Riviere v. Wells, 270 Ark. 206, 604 S.W.2d 560 (1980).

—Court Personnel.

Judges do not have the authority to set salaries of court personnel, unless that authority has been properly delegated to them by the legislative branch. Abbott v. Spencer, 302 Ark. 396, 790 S.W.2d 171 (1990).

—Prohibited Acts.

Courts cannot annul laws because they may seem unwise. Cruce v. Hill, 156 Ark. 224, 245 S.W. 485 (1922).

Construing statute as giving the Supreme Court the power to reduce a sentence that is within statutory limits and where no error has been shown is unconstitutional. Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974).

Adjourning and extending a legislative session are clearly among the powers of the General Assembly; once it has exercised its powers, even if they have been exercised erroneously, it is clear that a circuit court has no power, without violating this section and extending the scope of the writ of mandamus, to issue the writ to that body. Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979).

Mandamus cannot be used to undo legislative action or to compel revocation or rescission of legislative action in violation of the doctrine of separation of powers. Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979).

The trial court, in a case involving the cancellation by the highway commission of permits for outdoor advertising signs allegedly issued based upon applicant's misrepresentations, improperly ordered the permits reissued since the order substituted the judgment of the circuit court for the commission contrary to this section. Ark. State Hwy. Comm'n v. White Adv. Int'l, 273 Ark. 364, 620 S.W.2d 280 (1981).

Former § 23-52-104(b) was an invalid attempt to evade the usury provisions of former Ark. Const., Art. 19, § 13 and, further, such an attempt violated the constitutional mandate requiring separation of powers set forth in this Article. Luebbers v. Money Store, Inc., 344 Ark. 232, 40 S.W.3d 745 (2001).

Circuit court violated the separation of powers doctrine under Ark. Const., Art. 4, § 1 and this section by dismissing a charge in a delinquency petition against a juvenile sua sponte, as it usurped a prosecutor's duties under Ark. Const. Amend. 21, § 1 and § 9-27-310(b)(1); thus, the court lacked subject matter jurisdiction to enter the order. State v. D.S., 2011 Ark. 45, 378 S.W.3d 87 (2011).

—Zoning.

The enactment of zoning ordinances is a legislative function subject only to appellate review to determine whether the city legislative body acted arbitrarily or capriciously and the separation of powers provision does not permit the legislature to empower the judiciary to review the wisdom of ordinances enacted by virtue of the legislature's delegation of power to the city legislative body. Wenderoth v. City of Ft. Smith, 251 Ark. 342, 472 S.W.2d 74 (1971). But see Camden Community Dev. Corp. v. Sutton, 339 Ark. 368, 5 S.W.3d 439 (1999), overruled, PH, LLC v. City of Conway, 2009 Ark. 504, 344 S.W.3d 660 (2009).

It was not constitutionally permissible for statute to empower the judiciary to take away the discretionary powers vested by the legislature in the city's legislative body to enact zoning and rezoning ordinances. Wenderoth v. City of Ft. Smith, 251 Ark. 342, 472 S.W.2d 74 (1971). But see Camden Community Dev. Corp. v. Sutton, 339 Ark. 368, 5 S.W.3d 439 (1999), overruled, PH, LLC v. City of Conway, 2009 Ark. 504, 344 S.W.3d 660 (2009).

It is not constitutionally appropriate for a court to determine the substantive merits of the city's refusal to rezone; the fundamental concept of zoning legislation is sound city planning. City of Lowell v. M & N Mobile Home Park, 323 Ark. 332, 916 S.W.2d 95 (1996).

Pursuant to § 14-56-425, the city's Board of Zoning Adjustment (BZA) was an administrative agency and did not have power to legislate, and it was acting in an adjudicatory or quasi-judicial manner when it denied the owner's variance request; the statute, permitting de novo review in the circuit court with the right to trial by jury, was constitutional as it did not violate the doctrine of separation of powers. City of Fort Smith v. McCutchen, 372 Ark. 541, 279 S.W.3d 78 (2008).

Legislative Power.

It is within the power of the legislature to confer upon circuit courts the power to examine, approve, or reject the official bond of a tax collector. Oliver v. Martin, 36 Ark. 134 (1880).

It is within the power of the legislature to fix a maximum amount to be used for any given proposal with a proviso that the money will not be so used unless needed. Hooker v. Parkin, 235 Ark. 218, 357 S.W.2d 534 (1962).

County quorum court ordinance which required all county constitutional offices to be open to serve the public from 8:00 a.m. to 4:30 p.m. related to the performance of defendant in providing necessary services as a tax collector and, as such, was within the express powers granted the quorum court and not in violation of the separation of powers provisions. Walker v. County of Washington, 263 Ark. 317, 564 S.W.2d 513 (1978).

Statute which limits the maximum amount of fees paid to attorneys appointed to represent criminal indigents is constitutional and a trial court is bound by the provisions of that section; since there is no common law or statutory or constitutional authority establishing the payment of attorney's fees, the question of what constitutes adequate compensation must be left to the sound discretion of the General Assembly. State v. Ruiz, 269 Ark. 331, 602 S.W.2d 625 (1980).

The system of funding the public school system in place between 1994 and 2000 violated the provisions of Ark. Const., Art. 14, § 1 and Art. 2, §§ 2, 3, and 18, but it was the responsibility of the General Assembly, and not the judiciary, to create a system that complied with those constitutional requirements. Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002), cert. denied, 538 U.S. 1035, 123 S. Ct. 2097, 155 L. Ed. 2d 1066 (2003).

Civil Justice Reform Act of 2003, § 16-55-201 et seq., can not be interpreted to permit a jury to apportion fault in a tort suit to an immune nonparty employer because doing so would render the statute unconstitutional. Such an interpretation would violate this section, which bars the state legislature from encroaching on the Arkansas Supreme Court's authority to supervise court procedure. Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

—Prohibited Acts.

The legislature can not continue causes pending in the courts nor authorize the courts to set aside judgments. Byrd v. Brown, 5 Ark. 709 (1844); McLain v. Irwin, 6 Ark. 71 (1845); Biscoe v. Sandefur, 14 Ark. 568 (1854); Burt v. Williams, 24 Ark. 91 (1863).

The legislature can not authorize masters in chancery to issue injunctions. Ex parte Kennedy, 11 Ark. 598 (1851); Scoggin v. Taylor, 13 Ark. 380 (1853); In re Will of Cornelius, 14 Ark. 675 (1854).

The legislature can not abridge the power of the courts to punish for contempts. State v. Morrill, 16 Ark. 384 (1855).

The legislature can not prescribe for the courts rules of interpretation. Files v. Fuller, 44 Ark. 273 (1884).

The legislature can not require the Supreme Court to give its decisions in writing. Vaughn v. Harp, 49 Ark. 160, 4 S.W. 751 (1886).

For the legislature to declare the intent of a prior legislature and make the declaration retroactive so as to affect an interpretation already rendered by the courts is an abuse of legislative power which violates the separation of powers doctrine. Federal Express Corp. v. Skelton, 265 Ark. 187, 578 S.W.2d 1 (1979).

The legislature does not have the power or authority to retrospectively abrogate judicial pronouncements of the courts of this state by a legislative interpretation of the law. Federal Express Corp. v. Skelton, 265 Ark. 187, 578 S.W.2d 1 (1979).

The Legislative Council's practice of reserving the power of “review and advice” in an appropriation bill is a violation of the separation of powers doctrine. Chaffin v. Ark. Game & Fish Comm'n, 296 Ark. 431, 757 S.W.2d 950 (1988).

The legislature's restriction in an appropriation bill limiting the amount of money the Game and Fish Commission may spend on its magazine violates the separation of powers doctrine and Ark. Const. Amend. 35. Chaffin v. Ark. Game & Fish Comm'n, 296 Ark. 431, 757 S.W.2d 950 (1988).

In the absence of specific constitutional authority, the legislature may not authorize or require courts to appoint officers who have nothing to do with the administration of justice. Spradlin v. Ark. Ethics Comm'n, 314 Ark. 108, 858 S.W.2d 684 (1993).

Medical-costs provision, § 16-55-212(b) violated separation of powers under this section and Ark. Const. Amend. 80, § 3, because rules regarding the admissibility of evidence were within the province of the supreme court. Thomas v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (2009).

Section 16-55-202 was unconstitutional and conflicted with this section and Ark. Const. Amend. 80, § 3, because rules regarding pleading, practice, and procedure were solely the responsibility of the supreme court; the nonparty-fault provision bypassed the rules of pleading, practice, and procedure by setting up a procedure to determine the fault of a nonparty and mandating the consideration of that nonparty's fault in an effort to reduce a plaintiff's recovery. Thomas v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (2009).

The seat-belt statute, § 27-37-703, is procedural and therefore offends the principle of separation of powers and the powers specifically prescribed to the Supreme Court of Arkansas by Ark. Const. Amend. 80. Accordingly, in response to a certified question from the federal district court, the Supreme Court holds that § 27-37-703 violates separation of powers under Ark. Const., Art. 4, § 2, and Ark. Const. Amend. 80, § 3, and is therefore unconstitutional. Mendoza v. WIS Int'l, Inc., 2016 Ark. 157, 490 S.W.3d 298 (2016).

—Validity of Acts.

The party alleging that legislation is arbitrary has the burden of proving that there is no rational basis for the legislative act and, regardless of the evidence introduced by the moving party, the legislation is presumed to be valid and is to be upheld if the judicial branch finds a rational basis for it; it is not for the judicial branch to decide from evidence introduced by the moving party whether the legislative branch acted wisely. City of Lowell v. M & N Mobile Home Park, 323 Ark. 332, 916 S.W.2d 95 (1996).

Section 16-81-114, which allows a warrantless arrest for gas theft, is not an unconstitutional violation of the separation of powers. State v. Lester, 343 Ark. 662, 38 S.W.3d 313 (2001).

Prosecutor's Authority.

Requirement under § 16-89-108 and Ark. R. Crim. P. 31.1, that a prosecutor approve defendant's request to plead guilty and waive a jury trial, did not violate separation of powers provisions at Ark. Const., Art. 4, §§ 1 and 2 because defendant had no constitutional right to unilaterally waive a jury trial. Whitlow v. State, 357 Ark. 290, 166 S.W.3d 45 (2004).

Section 9-27-318, which vested prosecutors with the discretion to bring felony charges against 16-year-olds in the criminal divisions of circuit courts, was substantive law and not a rule of pleading, practice, and procedure; therefore, it did not violate separation of powers under § 1 or this section of Article 4 of the Arkansas state constitution. Also, § 9-27-318(c) did not deny a juvenile equal protection of the law because treatment as a juvenile was not an inherent right and could be modified by the legislature. C.B. v. State, 2012 Ark. 220, 406 S.W.3d 796 (2012).

Cited: Howell v. Howell, 213 Ark. 298, 208 S.W.2d 22 (1948); Harvey v. Ridgeway, 248 Ark. 35, 450 S.W.2d 281 (1970); Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974); Martindale v. Honey, 259 Ark. 416, 533 S.W.2d 198 (1976); Walker v. County of Washington, 263 Ark. 317, 564 S.W.2d 513 (1978); Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978); Nicholas v. State, 268 Ark. 541, 595 S.W.2d 237 (Ct. App. 1980); Thorne v. State, 269 Ark. 556, 601 S.W.2d 886 (1980); Curry v. State, 279 Ark. 153, 649 S.W.2d 833 (1983); In re Proposed Local Rules, 284 Ark. 133, 682 S.W.2d 452 (1984); Karr v. Townsend, 606 F. Supp. 1121 (W.D. Ark. 1985); Sides v. State, 285 Ark. 323, 686 S.W.2d 434 (1985); Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992); Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992); Four County Reg'l Solid Waste Mgt. Dist. Bd. v. Sunray Servs., Inc., 334 Ark. 118, 971 S.W.2d 255 (1998); Griffen v. Ark. Judicial Discipline & Disability Comm'n, 355 Ark. 38, 130 S.W.3d 524 (2003); Lake View Sch. Dist. No. 25 v. Huckabee, 364 Ark. 398, 220 S.W.3d 645 (2005); Ark. Dep't of Fin. & Admin. v. Naturalis Health, LLC, 2018 Ark. 224, 549 S.W.3d 901 (2018).

Article 5 Legislative Department

Research References

Am. Jur. 16A Am. Jur. 2d, Constitutional Law, § 284 et seq.

C.J.S. 16 C.J.S., Constitutional Law, § 280 et seq.

§ 1. Initiative and Referendum.

The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly; and also reserve the power, at their own option to approve or reject at the polls any entire act or any item of an appropriation bill.

Initiative. The first power reserved by the people is the initiative. Eight per cent of the legal voters may propose any law and ten per cent may propose a constitutional amendment by initiative petition and every such petition shall include the full text of the measure so proposed. Initiative petitions for state-wide measures shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon; provided, that at least thirty days before the aforementioned filing, the proposed measure shall have been published once, at the expense of the petitioners, in some paper of general circulation.

Referendum. The second power reserved by the people is the referendum, and any number not less than six per cent of the legal voters may, by petition, order the referendum against any general Act, or any item of an appropriation bill, or measure passed by the General Assembly, but the filing of a referendum petition against one or more items, sections or parts of any such act or measure shall not delay the remainder from becoming operative. Such petition shall be filed with the Secretary of State not later than ninety days after the final adjournment of the session at which such Act was passed, except when a recess or adjournment shall be taken temporarily for a longer period than ninety days, in which case such petition shall be filed not later than ninety days after such recess or temporary adjournment. Any measure referred to the people by referendum petition shall remain in abeyance until such vote is taken. The total number of votes cast for the office of Governor in the last preceding general election shall be the basis upon which the number of signatures of legal voters upon state-wide initiative and referendum petitions shall be computed.

Upon all initiative or referendum petitions provided for in any of the sections of this article, it shall be necessary to file from at least fifteen of the counties of the State, petitions bearing the signature of not less than one-half of the designated percentage of the electors of such county.

Emergency. If it shall be necessary for the preservation of the public peace, health and safety that a measure shall become effective without delay, such necessity shall be stated in one section, and if upon a yea and nay vote two-thirds of all the members elected to each house, or two-thirds of all the members elected to city or town councils, shall vote upon separate roll call in favor of the measure going into immediate operation, such emergency measure shall become effective without delay. It shall be necessary, however, to state the fact which constitutes such emergency. Provided, however, that an emergency shall not be declared on any franchise or special privilege or act creating any vested right or interest or alienating any property of the State. If a referendum is filed against any emergency measure such measure shall be a law until it is voted upon by the people, and if it is then rejected by a majority of the electors voting thereon, it shall be thereby repealed. The provision of this sub-section shall apply to city or town councils.

Local for Municipalities and Counties. The initiative and referendum powers of the people are hereby further reserved to the legal voters of each municipality and county as to all local, special and municipal legislation of every character in and for their respective municipalities and counties, but no local legislation shall be enacted contrary to the Constitution or any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith.

Municipalities may provide for the exercise of the initiative and referendum as to their local legislation. General laws shall be enacted providing for the exercise of the initiative and referendum as to counties. Fifteen per cent of the legal voters of any municipality or county may order the referendum, or invoke the initiative upon any local measure. In municipalities the number of signatures required upon any petition shall be computed upon the total vote cast for the office of mayor at the last preceding general election; in counties upon the office of circuit clerk. In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty days nor more than ninety days before the election at which it is to be voted upon; for a referendum petition at not less than thirty days nor more than ninety days after the passage of such measure by a municipal council; nor less than ninety days when filed against a local or special measure passed by the General Assembly.

Every extension, enlargement, grant, or conveyance of a franchise or any rights, property, easement, lease, or occupation of or in any road, street, alley or any part thereof in real property or interest in real property owned by municipalities, exceeding in value three hundred dollars, whether the same be by statute, ordinance, resolution, or otherwise, shall be subject to referendum and shall not be subject to emergency legislation.

General Provisions

Definition. The word “measure” as used herein includes any bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any character.

No Veto. The veto power of the Governor or mayor shall not extend to measures initiated by or referred to the people.

Amendment and Repeal. No measure approved by a vote of the people shall be amended or repealed by the General Assembly or by any city council, except upon a yea and nay vote on roll call of two-thirds of all the members elected to each house of the General Assembly, or of the city council, as the case may be.

Election. All measures initiated by the people whether for the State, county, city or town, shall be submitted only at the regular elections, either State, congressional or municipal, but referendum petitions may be referred to the people at special elections to be called by the proper official, and such special elections shall be called when fifteen per cent of the legal voters shall petition for such special election, and if the referendum is invoked as to any measure passed by a city or town council, such city or town council may order a special election.

Majority. Any measure submitted to the people as herein provided shall take effect and become a law when approved by a majority of the votes cast upon such measure, and not otherwise, and shall not be required to receive a majority of the electors voting at such election. Such measures shall be operative on and after the thirtieth day after the election at which it is approved, unless otherwise specified in the Act.

This section shall not be construed to deprive any member of the General Assembly of the right to introduce any measure, but no measure shall be submitted to the people by the General Assembly, except a proposed constitutional amendment or amendments as provided for in this Constitution.

Canvass and Declaration of Results. The result of the vote upon any State measure shall be canvassed and declared by the State Board of Election Commissioners (or legal substitute therefor); upon a municipal or county measure, by the county election commissioners (or legal substitute therefor).

Conflicting Measures. If conflicting measures initiated or referred to the people shall be approved by a majority of the votes severally cast for and against the same at the same election, the one receiving the highest number of affirmative votes shall become law.

The Petition

Title. At the time of filing petitions the exact title to be used on the ballot shall by the petitioners be submitted with the petition, and on state-wide measures, shall be submitted to the State Board of Election Commissioners, who shall certify such title to the Secretary of State, to be placed upon the ballot; on county and municipal measures such title shall be submitted to the county election board and shall by said board be placed upon the ballot in such county or municipal election.

Limitation. No limitation shall be placed upon the number of constitutional amendments, laws, or other measures which may be proposed and submitted to the people by either initiative or referendum petition as provided in this section. No petition shall be held invalid if it shall contain a greater number of signatures than required herein.

Verification. Only legal votes shall be counted upon petitions. Petitions may be circulated and presented in parts, but each part of any petition shall have attached thereto the affidavit of the person circulating the same, that all signatures thereon were made in the presence of the affiant, and that to the best of the affiant's knowledge and belief each signature is genuine, and that the person signing is a legal voter and no other affidavit or verification shall be required to establish the genuineness of such signatures.

Sufficiency. The sufficiency of all state-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes. The sufficiency of all local petitions shall be decided in the first instance by the county clerk or the city clerk as the case may be, subject to review by the chancery court.

Court Decisions. If the sufficiency of any petition is challenged such cause shall be a preference cause and shall be tried at once, but the failure of the courts to decide prior to the election as to the sufficiency of any such petition, shall not prevent the question from being placed upon the ballot at the election named in such petition, nor militate against the validity of such measure, if it shall have been approved by a vote of the people.

Amendment of Petition.

    1. If the Secretary of State, county clerk or city clerk, as the case may be, shall decide any petition to be insufficient, he or she shall without delay notify the sponsors of such petition, and permit at least thirty (30) days from the date of such notification, in the instance of a state-wide petition, or ten (10) days in the instance of a municipal or county petition, for correction or amendment.
    2. For a state-wide petition, correction or amendment of an insufficient petition shall be permitted only if the petition contains valid signatures of legal voters equal to:
      1. At least seventy-five percent (75%) of the number of state-wide signatures of legal voters required; and
      2. At least seventy-five percent (75%) of the required number of signatures of legal voters from each of at least fifteen (15) counties of the state.
  1. In the event of legal proceedings to prevent giving legal effect to any petition upon any grounds, the burden of proof shall be upon the person or persons attacking the validity of the petition.

Unwarranted Restrictions Prohibited. No law shall be passed to prohibit any person or persons from giving or receiving compensation for circulating petitions, nor to prohibit the circulation of petitions, nor in any manner interfering with the freedom of the people in procuring petitions; but laws shall be enacted prohibiting and penalizing perjury, forgery, and all other felonies or other fraudulent practices, in the securing of signatures or filing of petitions.

Publication. All measures submitted to a vote of the people by petition under the provisions of this section shall be published as is now, or hereafter may be provided by law.

Enacting Clause. The style of all bills initiated and submitted under the provisions of this section shall be, “Be It Enacted by the People of the State of Arkansas, (municipality or county, as the case may be).” In submitting measures to the people, the Secretary of State and all other officials shall be guided by the general election laws or municipal laws as the case may be until additional legislation is provided therefor.

Self-Executing. This section shall be self-executing, and all its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation. No legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the people. [As amended by Const. Amend. 7; Const. Amend. 93.]

Publisher's Notes. The original language of this section was “The legislative power of this State shall be vested in a Gen