Lawyer The Arkansas
A publication of the Arkansas Bar Association
Vol. 55, No. 2, Spring 2020 online at www.arkbar.com
During uncertain times, ArkBar is moving forward with virtual conferences and new technology benefits.
Inside: COVID-19 Commentaries Hunger and Food Insecurity Insurance Coverage Custodial Relocation 2020 Annual Meeting Virtual Conference
PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Anton Leo Janik, Jr., Chair Melody Peacock Barnett Luke K. Burton Dr. Frankie Martin Griffin Haley M. Heath Judge Brandon J. Harrison Ashley Welch Hudson Jim L. Julian Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. Trent David Thomas David H. Williams OFFICERS President Brian M. Rosenthal Board of Governors Chair Brandon K. Moffitt President-Elect Paul W. Keith Immediate Past President Suzanne Clark President-Elect Designee Bob Estes Secretary Glen Hoggard Treasurer Joseph F. Kolb Parliamentarian Aaron L. Squyres Young Lawyers Section Interim Chair Chris Hussein BOARD OF GOVERNORS Aubrey L. Barr Kandice A. Bell Margaret Hobbs Benson Douglas Brimhall Chase Carmichael Sterling Taylor Chaney Brian M. Clary Representative Carol C. Dalby Bob Estes Brent J. Eubanks Robert (Skip) L. Henry III Jamie Huffman Jones Jessica Virden Mallett Patrick W. McAlpine Joshua D. McFadden J. Cliff McKinney II James E. McMenis Anthony L. McMullen John Rainwater Albert J. Thomas III Harold Wayne Young LIAISON MEMBERS Karen K. Hutchins Judge Hamilton Singleton Harry Truman Moore Judge John C. Throesch Richard L. Ramsay Danyelle J. Walker Jay Robbins The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to nonmembers of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2020, Arkansas Bar Association. All rights reserved.
The Arkansas
Lawyer Vol. 55, No. 2
features
10 COVID-19 Commentaries Anton L. Janik, Chief Justice John Dan Kemp, Chief Judge D. P. Marshall, Jr., Dean Theresa M. Beiner and Dean Margaret S. McCabe 14 A Guitar Lesson for Lawyers By Steve Quattlebaum 16 United States District Court for the Eastern District of Arkanasas: A Design for the Future By James. W. McCormack 20 Hunger and Food Insecurity: What Challenges Do Arkansans Face Due to the Lack of Access to Nutritious Food? By Nikki Clark, Susan Duell and Trevor Hawkins 30 Extent and Applicability of Uninsured and Underinsured Motorist Coverage in Arkansas By Michael McCarty Harrison 38 The Current Case Law on Arkansas Custodial Relocation By Kyle Ward and Larry J. Thompson
46 Self Awareness Helps Deal with Trauma By Jennifer Donaldson
Contents Continued on Page 2
Lawyer The Arkansas Vol. 55, No. 2
in this issue
columns
ArkBar News
4
ArkBar Best of CLE
8
ArkBar Annual Meeting
26
Law School Updates
42
Thank You to 2019-2020 Sustaining Contributors
44
Disciplinary Actions
49
Arkansas Bar Foundation
53
In Memoriam
54
ArkBar Membership Renewal
56
President’s Report
6
Brian Rosenthal
Young Lawyers Section Report
9
Chris Hussein
Fastcase Fast Facts
36
Cathy Underwood
Thank You to ArkBar’s House of Delegates for your support as an annual meeting bronze sponsor
Arkansas Bar Association
2224 Cottondale Lane, Little Rock, Arkansas 72202
HOUSE OF DELEGATES Delegate District A-1: Geoffrey Denzil Hamby, SaVannah Justine Reading, George M. Rozzell, Ryan Scott, Seth A. White Delegate District A-2: Payton C. Bentley, Leslie Copeland, M. Scott Hall, Luke Mitchell Haller, Jason M. Hatfield, Brian C. Hogue, David R. Hogue, Sarah Coppola Jewell, Jarid Markus Kinder, Alan Lee Lane, John Pesek Delegate District A-3: James A. Arnold II, Sarah E. Capp, Craig L. Cook, Keith M. Kannett, Stephen Napurano Delegate District A-4: Justice Paul Danielson Delegate District A-5: Johnny L. Nichols Delegate District A-6: Allen Laws Delegate District A-7: Frederick S. Spencer Delegate District B: Darryl E. Baker, Jordan Bates-Rogers, David Biscoe Bingham, Anthony Bryce Brewer, Tim J. Cullen, Thomas J. Diaz, Paige Edgin, Bob Edwards, Joseph Dean Gates, Jesse J. Gibson, Jordan Broyles Hallenbeck, D. Michael Huckabay, Jr., Ashley Welch Hudson, Kyle D. Kennedy, Joseph F. Kolb, Victoria Leigh, Jessica Virden Mallett, B. Chase Mangiapane, Stefan McBride, Kathleen M. McDonald, J. Cliff McKinney II, Jeremy M. McNabb, David S. Mitchell, Jr., Meredith S. Moore, Ruthanne Nash Murphy, Andrew Payne Norwood, John Ogles, Scott Michael Strauss, Heather Goodson Zachary Delegate District C-1: Robert F. Thompson III Delegate District C-2: Barrett Moore Delegate District C-3: Robert J. Gibson, Warren Curt Hawkins, Ryan M. Wilson Delegate District C-4: Kara Lynn Byars Delegate District C-5: Christopher Michael Bryant, Keith L. Grayson, Kathie A. Hess Delegate District C-6: Joe Aaron Denton, Pamela Osment Delegate District C-7: Ginger M. Stuart Delegate District C-8: Margaret Dobson, George Lea, Carla M. Martin Delegate District C-9: Benjamin Patrick Barton, LeAnne P. Burch, Lee Douglas Curry Delegate District C-10: Amy Freedman, Joshua L. Potter Delegate District C-11: Sterling Taylor Chaney, Taylor Andrew King Delegate District C-12: Kathy A. Cruz, Kurt J. Meredith Delegate District C-13: John Andrew Ellis, Lori D. Howard Law Student Representatives: Hannah Butler, University of Arkansas School of Law; Bradey Camille Chambers, UA Little Rock William H. Bowen School of Law
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ArkBar News
2020 Arkansas High School Mock Trial Competition Thank you to all of the volunteers who made the 2020 Mock Trial Competition a success. In this year’s high school mock trial case, students tried the case of State of Arkansas v. Landry Brighton. We were making progress toward crowning a state champion when the competition had to be cancelled due to the COVID-19 pandemic. Brighton was charged with murder in the stabbing death of Lucky Lou Gianna, who was in federal witness protection at the time of his death. The prosecution’s theory was that Gianna’s death was the result of a dispute between neighbors. Brighton argued that the mafia found and murdered Gianna. Students competed at regional competition on March 7, 2020, in Conway, Fayetteville, and Jonesboro. Teams from Conway High School, Bentonville High School, and Springdale Har-Ber High School were recognized as regional champions. Teams from Springdale High School, Little Rock Central High School, Mount St. Mary and Catholic High Schools, Bryant High School, and North Little Rock High School also qualified for state competition. The following week, however, the Mock Trial Subcommittee announced the postponement of the state championship. At the time, the Subcommittee hoped that it would truly be a delay and not a cancellation. Unfortunately, between the Arkansas Activities Association cancelling spring events, schools being closed for the rest of the academic year, and courthouses limiting access, there was no clear path for holding the competition. The Mock Trial Subcommittee would like to thank volunteers who helped judge at regionals and those who had planned to judge at the state championship. The Subcommittee would also like to thank employees at the University of Arkansas School of Law, the Craighead County Circuit Courthouse, and the Faulkner County Justice Building for hosting regional competition. The Mock Trial Subcommittee will soon be making plans for the 2021 competition. We hope that members of the Arkansas Bar Association will help make it special. There are a number of different ways members can help. First, the Mock Trial Subcommittee is always seeking members to serve on the Subcommittee. Members interested in serving on the subcommittee should so indicate on their committee preference forms. Second, we always encourage members to approach their local high schools about starting mock trial programs. Finally, we need members to volunteer to serve as attorney-coaches (particularly in smaller, less-resourced school districts) and to serve as judges for competition. —Anthony L. McMullen, Mock Trial Committee Chair Nathan Bogart Abby Brenneman Beverly I. Brister Andrea Brock Kelly Brown Elizabeth Caldwell Aaron Cash Brian Clary Robert Coleman Casey D. Copeland Cory Crawford Judge Don Curdie Jason Davis Meagan Elizabeth Davis Jeannie L. Denniston William Alan Finer
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The Arkansas Lawyer
Bobby Forrest, Jr. Donna Galloway Karen Gillespie Lauren Graham Sarah E. Greenwood Adrienne Morris Griffis Christian Harris Michael B. Heister Denise Hoggard Glen Hoggard Ben Hooten Johnathan D. Horton Lori D. Howard Christopher M. Hussein Matthew C. Hutsell Adam Jackson
www.arkbar.com
Parker Jones Kristen Komander Dominique Lane DeAnn Lehigh William C. Mann, III Richard Bryant Marshall Jonathan Martin Skye Martin Heather Renee Martin-Herron Judge Mary Spencer McGowan Anthony L. McMullen Robert Minarcin Barrett Moore Andrew Nadzam Ashley Elizabeth Norman Joseph Paul Smith
John Pesek Constance Brown Phillips Susan M. Purtle Elizabeth Richardson Casey Nicole Richmond Danielle Robertson Mallory Sanders Lindsey Sullivan Jordan Brown Tinsley James D. Tomlin Tim Watson Judge Chip Welch Matthew D. Wells Nic Williams Dennis Zolper
Oyez! Oyez! ACCOLADES Steven W. Quattlebaum, Quattlebaum, Grooms & Tull PLLC, was recently selected as a member of the 2020 Lawdragon 500 Leading Lawyers in America, the eighth time he has received this distinction. Quattlebaum has also been chosen to chair the American Board of Trial Advocates COVID-19 Task Force. The University of Arkansas School of Law Women’s Law Student Association honored Karen Roberts with the Gayle Pettus Pontz Award. Dover Dixon Horne attorney Matthew C. Boch has been appointed to the board of the National Association of State Bar Tax Sections.
APPOINTMENTS AND ELECTIONS Robert Steinbuch, UA Little Rock’s Bowen School of Law, will serve as chair of the Arkansas Advisory Committee of the U.S. Commission on Civil Rights. Scott Irby,Wright, Lindsey & Jennings LLP, has been appointed to serve on the Arkansas Ethics Commission.
WORD ABOUT TOWN Rainwater Holt & Sexton announced that Karen Hughes and Hayden Hanna have joined the firm. Dover Dixon Horne announced that William J. Ogles joined the firm as an associate. Jeff Dixon has joined the Bank OZK Trust & Wealth Department. Cathy Underwood has joined the University of California Berkeley Extension as Lead Instructor in Paralegal Studies, providing program implementation and development services, and will be teaching legal research and writing for the university beginning in the fall. Please send Oyez announcements to ahubbard@arkbar.com.
Executive Director Karen K. Hutchins Celebrates 15 Years with ArkBar Karen K. Hutchins, ArkBar’s Executive Director, recently celebrated her 15-year anniversary with the association. During her time as Executive Director, Karen has led the Karen K. Hutchins Association in many changes and innovations, and faced many challenges. She diligently transitioned the Arkansas Bar Association to provide a fully-integrated technology system for the infrastructure of the association saving staff time and creating staff efficiencies. She continued to drive innovations with technology allowing members to have quick and easy use of expanding communication tools, including mobile capabilities. These have allowed association members to connect and provide services throughout the state. She helped prepare to lead the association forward to meet future expectations as it transitions from a longstanding governance
structure. The new governance structure will allow the association to be more agile and responsive as the legal profession meets the challenges that require quicker responses and increased technology in the practice of law. The association is rolling out this next bar year free CLE specifically to address technology and practice management issues to assist members in their practice including access to free practice management advisors. In 2019, just weeks before the annual meeting, she led the staff as they faced the challenges of the Arkansas River flood, which included moving their entire office to a temporary work space without disrupting services. Less than a year later, the pandemic of 2020 has required the office to “relocate” once again—this time as staff work remotely to slow the spread. Karen has been an active leader in her profession both nationally and statewide, serving during her tenure as President of Arkansas Society of Association Executives and President of the National Association of Bar Executives. She recently completed her service as the president of the 2019-20
National Association of Bar Executives. She also served as the 2018-19 President of the Arkansas Society of Association Executives. Karen earned her designation of Certified Association Executive (CAE) in 2013. “Congratulations to Karen for 15 years of service to the Arkansas Bar Association,” said Association President Brian Rosenthal. “We are fortunate to be led by Karen whose commitment to her and our profession is nationally renowned. On behalf of all our members and all lawyers, thank you for your steadfast, skillful and forthright leadership.” Karen has served in her current position as Executive Director of the Arkansas Bar Association for the past 12 years. Prior to that, she served as the Associate Executive Director, and before that, as Director of Continuing Legal Education. She is licensed to practice law in Arkansas and Texas and earned a Bachelor of Business Administration majoring in Finance from the University of Texas at Austin and a Doctor of Jurisprudence from the University of Houston Law Center.
Vol. 55 No. 2/Spring 2020 The Arkansas Lawyer
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PRESIDENT’S REPORT
NOW AS ALWAYS YOUR ASSOCIATION IS SERVING YOU FOR GOOD By Brian Rosenthal
A
Constitution Day 2019 at JA Fair High School with Chief Justice Dan Kemp and Beverly Brister, Chair of Law Related Education
Covid-19 resources for lawyers are found at https://www.arkbar.com/covid-19.
Brian Rosenthal is the 122nd President of the Arkansas Bar Association. He is a member of Rose Law Firm in Little Rock. 6
The Arkansas Lawyer
www.arkbar.com
s I write this column we are all experiencing the unexpected—a global pandemic. We have learned new words and laws and combined known words into new phrases like “social distancing,” “reopening the economy,” “sheltering in place” and “essential services.” The crisis has made each of us dig deeply and practice in a new virtual reality (even when in an office or home office). In this crisis we need to join together but are encouraged to stay apart (at least physically). We have seen the best of us in the way we work together to help each other through volunteer efforts. The bar’s disaster preparedness task force is expanding its mission (on the heels of a flood), and the bar staff has quickly adapted to new challenges. Because of our staff ’s execution, the bar has an excellent on-demand CLE platform (https://www.arkbar.com/cle/on-demand) and will host its first-ever virtual annual meeting from June 8-13, 2020. New free programming was provided by the bar on virtual offices, cybersecurity and the CARES Act loan programs, among others. We lowered our on-demand charges to help everyone meet their CLE requirements. Our theme this year has been the Bar is for Service, for Good and for YOU—help us serve you for good. This theme is virtually carried forward in our 122nd Annual Meeting titled “Lawyers in Service to Clients, the Courts and the Profession.” This unique offering will include several live-streaming sessions; brown bag law school luncheons; a virtual exhibit hall; live-streamed cooking and exercise classes; an interfaith breakfast and memorial; the State of the Judiciary presentation followed by our traditional swearingin ceremony; and national and statewide speakers. Please support us by registering at www.arkbar.com/annualmeeting/home. Thanks to our many sponsors for supporting our programming! I ask that each of you stand together with our new leadership from all across our state and allow our association to serve you for good—to do so we ask you to renew your membership. In this difficult financial climate, please contact Karen or me to review payment options including a monthly pay option. Renew online at www. arkbar.com/for-attorneys/membership/membership-application. As our statewide association, we provide professional governmental relations through Jay Robbins; we research and monitor all cases and legislation through volunteers, staff and a contractor; and we provide access to the latest articles in multiple fields of interest. We also provide free legal research. This year we will offer six free CLE hours on technology to help as we learn new ways to practice.
Each bar president gets 525,600 minutes to serve (or in my case 527,040—leap year)! So many others have worked hard for our joint success: From our Emeritus Rule; new governance; new logo (to be unveiled virtually at annual meeting); Public Service Academy (copresented with the Clinton School of Public Service); Arkansas Bar Association’s Legal Hall of Fame (to be presented by Arkansas Business); and all our committees, sections, and programs, our volunteers and staff have shown their commitment, dedication and excitement for our association and profession! Our Hall of Fame will be an opportunity to tell the powerful, positive stories of what lawyers, judges, academics and groups have done to shape and influence our state. Our legendary first class will soon be announced. The list of luminaries who were not selected shows we have many years to continue to celebrate those deserving and influential from our past until today. Thanks to the many whose service will benefit and has benefited our organization and profession. Going into next year, Professor Lynn Foster has shown she will be an outstanding Legislation Committee Chair. The Presidents (Suzanne, Paul and Bob) have provided tremendous counsel on our efforts for new emergency orders on electronic notary services with primary drafting assistance by Jennifer Pierce, essential service designation, new graduate proposals, and many other emergency issues. Joe Kolb has worked a double shift as Treasurer and Annual Meeting co-chair with Cindy Kolb—he led the finance committee in a comprehensive program review and evaluation. Bob Edwards and Jennifer Jones helped us reimagine our sponsorship opportunities, which efforts will continue so we provide excellent value and varied options. Bonnie Johnson and Michael Goswami have provided corporate advice on converting our organization’s corporate structure. Recently, our plaintiffs’ and defense bars joined with our association on input to our courts through a designated court committee on matters of emergency discovery practices. These efforts were facilitated by Brian Brooks, Paul Byrd, Kevin Crass, Alan Lane, Brad Runyon, and Judge Chip Welch.
The Branding Task Force was led on a creative journey by Jeffrey McKinley, and the final product is one in which we will all be proud. Thanks to the efforts of marketing professionals Heather Haywood and Heide Harrell and the services of Mangan Holcomb Partners, I am confident you will love our new logo—everyone who sees it notes it means something to them that by my count was considered and planned for by this amazing volunteer task force. It has been a privilege to work with and speak to our courts and judges. We are excited to continue to work with Chief Justice Kemp and Chief Judge Gruber and AOC’s Marty Sullivan and Ben Barham. Also, Justice Robin Wynne and the Court’s Karen Steward have worked closely with Paul Keith, Beverly Brister and Mark Hodge on refilming our educational video on the rule of law, which will soon be completed. In addition, our dynamic law school deans have been great supporters all year—thank you Deans Beiner and McCabe! Our legislative efforts are of course aided by all our attorney members who not only serve as legislators but also serve our association on steering committees and bar committees and speak at our events. In this small, collegial state we exemplify the best of our profession in the way we collaboratively work. If you want to be more involved, please reach out to Paul Keith (123rd President Monticello/Hamburg) or Bob Estes (124th President Fayetteville) and tell them how you wish to stay or become involved. My closing remarks are below, but I want you to learn more about these three staff members: Michele Glasgow is from Little Rock and has been with the Association for 20 years. She provides administrative support to the Association’s leadership and works closely with many committees, primarily the Mock Trial Committee. Her favorite pastimes include camping, canoeing, and traveling. Michele has two children and five grandchildren. Our publications director Anna Hubbard has been with the Association for almost 15 years. She is the editor of The Arkansas Lawyer and works closely with the Editorial Advisory Board. She also creates the Association’s brochures and marketing pieces. She and her
“[I]t has been the honor of a lifetime to serve; I am grateful for the passion for our profession that burns brightly and is shown in so many volunteer leaders and friends.” husband John Paul live in Little Rock with their three dogs. We are fortunate to be led by Karen Hutchins who brings her national reputation to serve our state and profession. She leads by example, with integrity, grace and professionalism. Thank you staff and Karen. I looked for a quote for this final column. All year long I have been inspired by the many volunteers, the support from my law firm (led by Robyn Allmendinger with special assistance from Lisa Robison) and family, our association staff, and the opportunity and challenge of service. I dedicated this year’s service to my late father Malcolm. This quote in turn is reflective of our association’s staff, who though smaller in number than other states’ staffs, highly achieve for our benefit: ‘[W]hat’s important is to base one’s convictions on compassion for others and an ambitious sense of the possible, to commit to achieving ambitious goals, to plan carefully, to think and write clearly, to work hard, to learn constantly, and to progress always with integrity and sensitivity.” Wendy Kopp, Teach for America. Quoted with permission from The Most Important Thing I Know, published by Andrews McMeel Publishing. In conclusion, it has been the honor of a lifetime to serve; I am grateful for the passion for our profession that burns brightly and is shown in so many volunteer leaders and friends. This sentiment is evident with Paul Keith and Karen Hutchins—they are strong, caring, able leaders, who along with our new statewide board of trustees will strengthen our 122-year tradition of service. I hope each of you will stay involved and help the association serve you for good. Wishing you lasting safety and health! —Best always, Brian Rosenthal
Vol. 55 No. 2/Spring 2020 The Arkansas Lawyer
7
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YLS REPORT
MAKING THE MOST OF IT! By Chris Hussein Chris Hussein is the Interim Chair of the Young Lawyers Section. He is a staff attorney with Legal Aid of Arkansas, Inc. 2020-2021 is going to be an exciting year for the Young Lawyers Section. While the first half of 2020 may not have gone as planned, we are going to make the most out of the rest of the year! While we did unfortunately have to cancel our Wills for Heroes events this Spring due to COVID-19, we are still working toward that same goal. During the month of May we started a virtual estate planning clinic in partner with Legal Aid of Arkansas, Inc. This clinic was set up to help people statewide with powers of attorney, advanced directives and wills. If you are interested in volunteering, please contact me at chussein@arlegalaid.org. We are working to find new ways to get involved in the community and are always open to suggestions from members. While we won’t get to meet face-to-face this summer at the Annual Meeting in Hot Springs, I would encourage you all to attend the virtual annual meeting! Joe and Cindy Kolb have put together a great lineup of CLE and it will be worth your while. We will also be holding our annual Young Lawyers Section Meeting as well as other Young Lawyers Section virtual events. At this meeting we will be electing new board members and officers. The position of Secretary/
Treasurer as well as several District Representative positions are open; if interested in running for a position please contact me at chussein@arlegalaid.org. I would like to congratulate Payton Bentley of Fayetteville. Payton will be serving as ChairElect for the 2020-2021 Bar Year and will serve as Chair of YLS the following year. At our meeting we will also be recognizing Caroline Kelley of Rogers. Caroline will be receiving the YLS award of Excellence this year! The Young Lawyers Section was created for attorneys who are 35 years of age and under or have been licensed for less than five years. Since its inception, membership to the YLS has been free. However, in order to continue to provide you and our members with the services you need and expect, ArkBar’s Board of Governors recently voted to begin charging $20 standard dues for the Young Lawyers Section. This change will go into effect starting July 1, 2020. These funds will be added to the budget amount from the Association to assist the YLS in helping plan for community activities and events. With this new budget YLS will be more robust and involved than ever. I am committed to holding at least one YLS event in each of the three bar districts.
You can expect more social and networking events as well as service events. Should football season be allowed to proceed with fans in attendance we are working on an event at a Razorback Football game this season that will go beyond our usual tailgate experience. Keep an eye out for more information on this in the future! We are also working on YLS service days and would like to have at least one YLS service
day in each of the three bar districts. If anyone has any ideas for these or would like to serve on a committee to help plan these please reach out to me. I hope to see everyone at the virtual annual meeting and at our YLS meeting! If you have any questions or would like to get more involved please don’t hesitate to reach out!
HATS OFF TO YLS! The great work of the members of the Young Lawyers Section can be found throughout this issue. ArkBar is grateful to its almost 1,200 YLS members who keep the association moving forward. They are the future of the association! Congratulations to Caroline Currier, Associate Attorney, Miller, Butler, Schneider, Pawlik & Rozzell PLLC for being named one of Talk Business & Politics Fast 15
Congratulations to Will Mullen, Attorney, Smith Hurst PLC for being named one of Talk Business & Politics Fast 15
Kyle Ward co-authored an article on page 38 .
Vol. 55 No. 2/Spring 2020 The Arkansas Lawyer
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COVID-19 COMMENTARIES
Editors Note: The Editorial Advisory Board commemorated this unique time of the world pandemic in a short piece that generally identifies the significant legal, financial, lifestyle and educational changes that COVID-19 has brought to our practices and lives over the last two months. This short piece is just reflective of what historical events have occurred. We asked the individuals in this piece to provide their reflections about this unprecedented time as it relates to the practice of law, or even to life in Arkansas in general.
RECAP
Anton L. Janik Anton is the Chair of the Editorial Advisory Board for The Arkansas Lawyer magazine and an attorney with Michell, Williams, Selig, Gates & Woodyard in Little Rock.
Graphics cite https://coronavirus.1point3acres.com/en
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The Arkansas Lawyer
www.arkbar.com
For many of us, we first heard the word “coronavirus” in news snippets coming out of China in January 2020,1 although variants of the diseases caused by coronavirus had affected us before, from common colds to MERS to SARS.2 This time, what had seemed a faraway malady quickly reached our shores as SARS-CoV-2, the variant that causes COVID-19. Our lives changed. In the ensuing few months, we saw our nation in the grips of this new pandemic, with over 1.2 million persons being diagnosed and 77,000 dying from its complications at the time of this writing. Countries began to close their borders. President Trump blocked most visitors from continental Europe and later closed our country’s borders to immigrants. We watched as our national news was broadcast from home living rooms instead of just to home living rooms. We quickly adjusted to the sight of reporters in the street wearing facemasks. Closer to home, Governor Asa Hutchinson declared a State of Emergency. We all hovered around our television sets or mobile devices daily to watch Governor
Far left photo taken by Anton Janik in the Heathrow airport on March 14, 2020. Next photo of a sign on an elevator at the Simmons Tower building in Little Rock. Below photo of one of Governor Hutchinson’s daily press conferences. (Photo credit: Governor’s Office/Youtube)
Hutchinson and his team provide updates on the latest COVID-19 numbers here in Arkansas. Our local medical community performed magnificently. They managed limited resources in terms of masks and ventilators. The local community responded to this need, with businesses and individuals providing N95 masks in their possession to our medical teams. In the larger community, businesses created, produced and gave away masks, often in the millions, and others developed instructions for creating masks and released those instructions publicly.3 Local restaurants provided free meals for our healthcare workers.4 And regularly at 7 p.m. all over the world, people opened their windows and doors and clapped and cheered to show support for medical personnel fighting COVID-19 on the front lines.5 Arkansans took COVID-19 seriously. Although one of only a handful of states whose governor did not impose a shelter-athome order, Governor Hutchinson ordered restaurants, bars, beauty shops, barber shops and gyms to close their doors.6 By necessity or choice, many other businesses closed their doors for the interim. Our schools were closed on an interim basis first, then eventually closed for the rest of the school year. Students and teachers met online. Summer camps were cancelled. Those who needed to venture out from their homes wore masks over their mouth
and nose; many also wore plastic gloves and carried little bottles of sanitizer with them. Some people made their own masks from scarves, bandannas, or snorkel masks.7 We all learned to “social distance.” Businesses adapted to this new normal. Doctor visits went virtual. The use of food and alcohol delivery services skyrocketed, as did grocery pickup and delivery. The phrase “contactless delivery” became de rigueur. Our grocery stores were emptied of hand sanitizer and toilet paper overnight. Two Arkansas distilleries jumped to the task, and instead of creating alcoholic beverages, made sanitizer and gave it away for free.8 The business of sports changed and adapted. The NBA and MLB seasons were cancelled. We watched the NFL draft take place at homes throughout the country. The practice of law changed, too. Most of us closed our law offices and worked from home. That brought new challenges, including security challenges, as our former face-to-face meetings and depositions became virtual screen-to-screen meetings
and depositions. While our courts stayed open, our courtrooms closed. In-person hearings and jury trials were postponed by orders of the Arkansas Supreme Court and our Federal District Courts.9 Our annual Bar Meeting went virtual. Economically, it was a tough time for the nation and for Arkansas. In the first seven weeks of the pandemic, the nationwide unemployment rolls swelled to over 33 million people as businesses shut down.10 The economy shrank 4.8% between January and March, 2020.11 The unemployment rate shot up to 14.7% of the workforce, and the economy shed 20.5 million jobs.12 Congress provided help to businesses and workers through the CARES Act and its Paycheck Protection Program,13 among many other federal government initiatives, and the IRS sent more than 89.5 million economic impact payment checks for $1,200 to eligible persons.14 The IRS moved the individual tax deadlines from April to July 15th and Arkansas followed suit.15 Those venturing outside for necessities saw that our roads were nearly traffic free. Gas prices plummeted at the pump, cut more than in half just a few weeks into the pandemic. An online survey of gas stations reflected prices as low as $1.01 a gallon in the Little Rock area.16 On April 20th, Overnight West Texas Intermediate Crude prices dipped below $0.00 for the first time, falling to -$37.63 a barrel.17 We
Vol. 55 No. 2/Spring 2020 The Arkansas Lawyer
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survived unprecedented times. Environmentally, we saw the longest string of clear skies in Los Angeles, and cities in India reported their first clear views of the Himalayas in more than 30 years.18 The European Space Agency’s Sentinel-5P satellite showed that levels of nitrous oxide over industrial areas in Asia and Europe were down as much as 40% year over year.19 Animals returned to this world without us. Jellyfish were seen swimming down clear canals in Venice,20 dens of lions were found sleeping on roadways in South Africa’s Kruger National Park,21 ostentations of peacocks roamed the streets of Dubai,22 mountain goats gathered on the streets in Wales,23 deer tip-tapped down the streets and subway stations in Japan,24 and wild boars roamed the streets of Barcelona.25 But we never gave up. We continued to meet with friends and family, just doing so virtually. We exercised by walking our neighborhoods saying hello to our neighbors, some of us in masks, others just keeping the requested 6-foot social distance from others. And we are still here today, mid-pandemic, at home, practicing law
from a distance. Together, but virtually. And through this community-wide attention to precaution, we have seen the pandemic curve flatten here in Arkansas. Although we’re not through this yet, we have proven that we can do this, if we do it together. Endnotes: 1. https://www.cdc.gov/coronavirus/types.html. 2. https://www.nytimes.com/article/coronavirus-timeline.html. 3. https://www.cnet.com/news/apple-designing-and-producing-face-shields-for-coronavirus-medical-workers/. 4. https://www.nwahomepage.com/lifestyle/ health/coronavirus/northwest-arkansas-businesses-partner-to-provide-food-for-local-healthcare-workers/. 5. https://www.cnbc.com/2020/04/05/new-yorkers-stop-and-give-daily-thanks-and-gratitude-for-coronavirus-frontline-workers.html. 6. https://www.thv11.com/article/news/local/ gov-hutchinson-directs-all-restaurants-and-barsto-offer-to-go-deliveries-only/91-18b234054cf9-4cf4-9550-e81c79e3452c. 7. https://scopeblog.stanford.edu/2020/04/10/ scientists-redesign-full-face-snorkel-mask-to-combat-ppe-shortage/. 8. https://armoneyandpolitics.com/helping-hands-arkansas-distilleries-begin-producing-sanitizer/. 9. https://www.arcourts.gov/sites/default/files/articles/COVID-19-PC-april-3.pdf; https://www. are.uscourts.gov/sites/are/files/AdminOrder5.pdf. 10. https://www.nytimes.com/2020/05/07/us/ coronavirus-updates.html. 11. https://www.wsj.com/articles/first-quarter-gdp-us-growth-coronavirus-11588123665. 12. https://www.nbcnews.com/business/economy/u-s-economy-shed-record-20-5-millionjobs-last-n1202696.
13. https://home.treasury.gov/policy-issues/cares/ assistance-for-small-businesses. 14. https://www.irs.gov/newsroom/treasury-irsdeliver-89-point-5-million-economic-impactpayments-in-first-three-weeks-release-state-bystate-economic-impact-payment-figures. 15. https://www.irs.gov/newsroom/tax-day-nowjuly-15-treasury-irs-extend-filing-deadline-andfederal-tax-payments-regardless-of-amount-owed; https://www.dfa.arkansas.gov/images/uploads/ incomeTaxOffice/IncomeTaxExtension.pdf. 16. https://www.kark.com/gas-tracker/. 17. http://www.koreatimes.co.kr/www/special/2020/04/175_288211.html. 18. https://www.forbes.com/sites/ sap/2020/04/22/environmental-benefit-covid-19/#569feca928c2. 19. https://www.esa.int/Applications/Observing_the_Earth/Copernicus/Sentinel-5P/COVID-19_nitrogen_dioxide_over_China. 20. https://time.com/5824807/jellyfish-in-venice/. 21. https://www.cbsnews.com/news/lions-in-south-africa-nap-road-coronavirus/. 22. https://www.businessinsider.com/ photos-show-nature-is-reclaiming-urban-areas-amid-coronavirus-2020-4. 23. https://www.businessinsider.com/ photos-show-nature-is-reclaiming-urban-areas-amid-coronavirus-2020-4. 24. https://www.businessinsider.com/ photos-show-nature-is-reclaiming-urban-areas-amid-coronavirus-2020-4. 25. https://www.businessinsider.com/ photos-show-nature-is-reclaiming-urban-areas-amid-coronavirus-2020-4.
View from the Board Tory Hodges Lewis, Editorial Advisory Board member, has been with her family in Suriname, South America, for the Luke Burton, Editorial past three years as Advisory Board member missionaries and and clerk for Judge church planters among the Saamakan people. Pictured Morris S. Arnold above are her new office mates. “They can be a bit rowdy, but they sure do know how to have fun!” “Though the pandemic altered my work routine in many ways, I’ll always cherish the extra time I shared with my family!”
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View from the Bench The Supreme Court of Arkansas has utilized and promoted the use of technology in responding to the COVID-19 pandemic. “We have encouraged the circuit and district judges throughout the state to use videoconferencing platforms to address emergency hearings in their courts and we are pleased with their response,” stated Chief Justice Dan Kemp. The Arkansas courts have continued to improve accessibility, efficiency and productivity with the expanded use of technology through the eFiling system. Over the past year, eFiling projects in the circuit courts of Jefferson and Lincoln Counties have been completed, bringing the total number of counties in Arkansas using eFiling to 24. Six more counties plan to be in May and another nine counties before the end of the year. The Supreme Court of Arkansas has instituted a pilot project for electronic filing of the record and briefing in the appellate courts. Importantly, the pilot program eliminates the preparation of the abstract and addendum, which should make appeals simpler and less expensive. The Supreme Court has implemented oral arguments by videoconferencing on Zoom. The Supreme Court also conducted the swearing-in ceremony of new attorneys by Zoom, the first supreme court in the nation to do so. Chief Justice Dan Kemp stated, “I appreciate the support and forward thinking of my colleagues on the Supreme Court during these challenging times. I also appreciate the hard work of the Supreme Court Clerk’s Office and the staff of the Administrative Office of the Courts. Thanks to their efforts and the extraordinary work of the circuit and district judges throughout the state and their staffs and clerks’ offices, we have managed to keep our courts open and operating effectively for the citizens of Arkansas.”
ARKANSAS SUPREME COURT
Chief Justice John Dan Kemp
From time to time over the years, I’ve light-heartedly quoted 28 U.S.C. § 452—“All courts of the United States shall be deemed always open for [doing judicial business.]” Recent weeks have shown me the deeper meaning in these words. Through the efforts of many dedicated public servants, the Eastern District of Arkansas has remained open. This work is not as important, or as fraught with danger, as the work of the nurses and doctors and others taking care of our sick. But the peoples’ law business needs doing, too. With innovations and old-fashioned diligence, my co-workers have pressed on, ensuring that the statute’s promise is kept. The Court has entered two Administrative Orders during the last six weeks, each of which are available on our website. Both provide a good map for the operational challenges and changes we have faced together. In short, our Court has remained open during the pandemic. Rotating teams have staffed our courthouses, with support from others through telework. Needed hearings have proceeded, many by videoconference, some by telephone, and some in person with extra precautions, including physical distancing. Non-urgent hearings have been continued. Jury trials, civil and criminal, and the grand juries, have been suspended from mid-March until early June, when we expect to resume all those proceedings. Through our electronic case management and filing system, general court business has proceeded apace.
UNITED STATES Chief Judge DISTRICT COURT, D. P. Marshall Jr. EASTERN DISTRICT OF ARKANSAS
“During this pandemic, I have been more grateful than any other time in my career to be a lawyer. I am so grateful to have a job that consists of many responsibilities that can be done from anywhere. I have many friends in other professions who have had to file for unemployment already. I’m grateful that as a lawyer we have an essential service to provide our clients that is still needed and can still be provided regardless of the pandemic.” Haley M. Heath, Editorial Advisory Board member and attorney at Fuqua Campbell, P.A. is pictured with her daughter at a socially-distanced drivethrough birthday party.
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A GUITAR LESSON FOR LAWYERS By Steve Quattlebaum These are challenging times to be sure. While staying healthy is most important, it is only natural that we also contemplate how the economic effects of this pandemic may impact the country, our profession, and our individual practices. However, history has shown that opportunities exist even in the most challenging of circumstances, and there is much to learn from those who not only make the best out of turbulent times but see pathways to success. The story from the Great Depression about a new guitar design offers just such a lesson. First, let me explain my remote connection to the story. I grew up working at my family’s modest little music store on the court square in Searcy, Arkansas. My mom and dad owned and operated it. My sister and brotherin-law still do. We sold all sorts of musical instruments and equipment, including pianos, drum sets, amplifiers and, most of all, guitars. I still remember well when we were notified by C. F. Martin & Co. that we were a recognized dealer of Martin guitars. That was a big day in our house. We carried several well-known, high-quality guitar brands like Gibson, Fender and others, but being a Martin dealer was a meaningful step up. More country music stars played Martins than any other brand. Musicians
Steve Quattlebaum is a founding member of Quattlebaum, Grooms & Tull PLLC. 14
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playing Martin guitars were expected to be good. Martins were expensive compared to other makes, but they were worth it. The workmanship was precise. The hardware was robust and tight. The woods used on the body and neck had a beautiful, deep luster. But what really set Martins apart was the tone. In the hands of a talented musician, the notes were crisp and the chords rang out with a dynamic resonance. Martin guitars were fine instruments, and being recognized as a Martin dealer was a badge of honor. C. F. Martin & Company was founded in 1833 by Christian Frederick Martin. He had immigrated to the United States from Germany with the skills of an instrument craftsman learned from his father. At the time, guitars were not as popular as certain other stringed instruments such as banjos and mandolins. Guitars of that era were based on Spanish designs. They had 12 frets, used gut strings, and were finger picked. Mr. Martin set out to build a guitar business focused on producing high quality instruments at a fair price. He distinguished his guitars from the traditional designs by changing the bracing structure and the neck-body junction. This innovative design enhanced the resonance of the instrument and added to its overall strength. The family business went through some hard times. But his descendants stayed true to his principles of excellence and innovation, and the business eventually flourished. In 1916, Frank Martin worked with a craftsman named Harry Hunt to develop a new design they called “the Dreadnought” after a ship design claimed to be unsinkable. It was to be an ideal accompaniment to singers which made its purpose different from that of guitars primarily intended for instrumental music. At the time, the Dreadnought design did not gain much of a following, and the primary Martin lines were based on more traditional designs. The business continued to grow, turning
out 5,000 guitars per year by 1928. Then, the Great Depression hit. Like many companies at the time, Martin faced tough times. But something was happening amidst the turbulence of the early 1930s. The radio was becoming ubiquitous in America. It allowed for a momentary escape from a hardscrabble daily life. At the end of the day one could sit by the fireplace or on the porch and listen to folk singers like Gene Autry, Jimmie Rodgers, the Carter Family, and other musicians from far-away places. Music offered an opportunity for fun in a time when some fun was much needed. The leaders at Martin saw promise during this time when most saw obstacles. Things were changing with guitars. Steel strings rather than gut had gained wide acceptance over the preceding years, and the tension of steel strings demanded a stronger design. In 1931, the designers at Martin developed a 14-fret neck rather than the traditional 12-fret neck. They labeled this new design the “Orchestral Model” or “OM” guitar. It was smaller bodied and was designed to be played with a pick rather than fingers. Of course, it was built to the Martin standard of excellence. The 14-fret design became so popular that Martin eventually adopted it for all its models. The Martin OM became the first truly modern acoustic guitar. But they did not stop there. That Dreadnought guitar designed back in 1916 to accompany singers was now perfectly suited for the folk-singing radio stars whose talents were being broadcast into homes all over the country. So, Martin incorporated the Dreadnought design into its lineup by adding the D-18, D-28 and D-45 models. The decision to modify a successful product line at a time when money was scarce and chiefly dedicated to the necessities of life could not have been an easy one, but it paid off. The Dreadnought was a gamechanger. Extremely popular, it soon became the standard for guitar design. The depression eventually passed, as did
“The practice of law will change in some ways as a result of COVID-19, but if we have the foresight to identify the issues our clients will face and we hold fast to the principles of excellence and innovation, we may just find a new pathway to success in the midst of this crisis.” World War II, and folk singing resurged in the 1950s and 1960s with the likes of Pete Seeger, Bob Dylan, Neil Young and many others. Martin was the guitar of choice. And it still is. Today, songwriters and singing stars like John Mayer, Ed Sheeran, Willie Nelson and scores of others in all genres of music play Martin guitars. These artists not only get a guitar of the highest quality, but their association with Martin elevates their stature as musicians. C. F. Martin & Company found new success in the midst of a national crisis by engaging in keen foresight, innovative design, and an insistence on excellence. Martin guitars remain the standard by which other guitars are measured. Musicians aspire to own one. And independent music stores in small town America find great pride in being recognized as Martin dealers. Even with the limitations of courthouse closures, working from home and restricted travel, opportunities abound with the advent of Zoom meetings and other technological advances. Furthermore, many of our clients need our services now more than ever. By providing excellent service through innovative means while adhering to the highest ethical standards we provide our clients the peace of mind that comes from knowing at least some of their troubles are in the hands of lawyers dedicated to their best interests. And if we look to the other side—because there will be a time when this is behind us— and anticipate the types of legal services that will be needed, we can develop the expertise needed to expand our practices to address those emerging issues. The practice of law will change in some ways as a result of COVID-19, but if we have the foresight to identify the issues our clients will face and we hold fast to the principles of excellence and innovation, we may just find a new pathway to success in the midst of this crisis.
View from the Law Schools The COVID-19 pandemic has created a unique time in legal education like nothing I’ve ever seen before. The American Bar Association, our accrediting agency, recently had expanded opportunities for online legal education, although it fell short of approving wholly-online programs. While law schools were just beginning to contemplate what the addition of more online classes might mean for their academic programs, no one thought law school classes would be online so swiftly and completely. And yet we transitioned to online classes in a day. I have been incredibly impressed with how everyone at Bowen—professors, students, and administrators—have stepped up to make the transition to online law school classes and programming. Some clearly have thrived with this transition. One of my colleagues commented to students that our current situation provides an excellent example of how attorneys are called on to adapt and adjust to unusual situations. Indeed, our student bar association president has suggested to her fellow graduates that “2020” on a diploma or a bar license will be an exclamation point instead of an asterisk. I believe that is true. The graduates from this semester have already proved they are capable of rising to a difficult challenge. They have formed a bond with their colleagues forged by something larger than their final exams or bar exam studies. There is little doubt that this experience will continue to influence their professionalism as members of the bar.
UA LITTLE ROCK WILLIAM H. BOWEN SCHOOL OF LAW
Dean Theresa M. Beiner
The words that continue to Dean Margaret S. McCabe come up when I think of our student, faculty, and staff reactions to the COVID-19 crisis include: resilience, adaptability, optimism, and perseverance. But perhaps more than all the rest is uncertainty. As with professional practice, this pandemic has brought uncertainty to every level of legal education – from taking the LSAT, to recruiting and admitting a new 1L class, to how to safely hold classes, to how to effectively teach students, to experiential learning opportunities, to celebrating the accomplishment of graduation, to taking the bar exam, to finding employment – each step is accompanied by a question mark, and much of it is out of our control. So, what do we do? We create contingency plans, a skill we have all learned, even if we have not applied it at this level before. Just as LSAC developed the LSAT-Flex and states are considering new approaches to the bar exam, we are looking at new ways to educate. That means more consideration of distance education, hybrid-learning, fewer people in classrooms, finding hands-on learning opportunities that respect public health guidelines, and other arrangements. We continue to recognize the unique needs of the Class of 2020 as we find ways to celebrate them, help them navigate the changing landscape around the bar exam, and guide them in their employment opportunities during this unprecedented time. At the center of every decision are assuring the safety of our law school family, supporting the Arkansas bench and bar, protecting the rule of law, and providing an excellent legal education.
UNIVERSITY OF ARKANSAS SCHOOL OF LAW
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United States District Court for the Eastern District of Arkansas: A Design for the Future By James W. McCormack U.S. District Clerk, Eastern District of Arkansas
On November 26, 2019, President Trump signed the “Divisional Realignment for the Eastern District of Arkansas Act of 2019.”1 The Act was introduced in the House on February 8, 2019 – passed by the House on October 22nd – passed by the Senate on November 7th – and subsequently signed by the President. The appearance of an expedited process, a tribute to the significant efforts of those involved with this Act, is misleading because the history of the proposal would reveal the opposite. The Eastern District of Arkansas was a 41-county district that consisted of five divisions based in Little Rock, Batesville, Helena, Jonesboro and Pine Bluff. Each division contained a chambers, courtroom and general office space. All Eastern District judges were stationed in Little Rock and traveled to the divisions as needed. Only two of the divisions were staffed. These factors have always made the District a target for space reduction efforts by the Administrative Office of the Courts. One of the first efforts to close divisions, which would lead to a district reconfiguration, was proposed by the Administrative Office of the United States Courts (AO) over 30 years ago. In 1986, a Circuit Judge sent a Memorandum to the 16
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Chief Judge of the Eighth Circuit Court of Appeals and the Judicial Council asking them to stand firm against the AO’s proposal to close “underutilized” facilities within the Judiciary. The “hit list” included several locations within Arkansas. The Circuit prevailed and no facilities were closed, but the AO was not finished. Similar space reduction plans were proposed in 1996, 2005, 2011 and 2015. The 2015 plan targeted all non-resident courthouses, which are facilities without a full-time resident judge. A resident judge requirement for a divisional facility was a game changer and would ultimately require historic changes to the configuration and operations of our district. Due to the 2015 national budget crisis, a Judicial Conference mandate to reduce judiciary space by four percent and a new resident judge requirement for courthouses, the Court agreed to close two non-resident divisional courthouses when the leases expired in 2017. (Our efforts contributed to the national effort that has saved taxpayers more than $100 million in reduced rents.) In addition, the Court developed a proposal to reduce the number of divisions from five to three. The vision was to redraw divisional lines in a way that would preserve the remaining three locations and transform the divisional office facilities into fully utilized and modern courthouses. It was a plan designed for the future. The master plan to reconfigure the divisional lines was designed to balance the caseload among three new divisions (Northern Division based in Jonesboro, Central Division based in Little Rock and Delta Division based in Helena), address the unique geographical differences (mountains,
rivers, delta areas, and highway systems), minimize the commute for jurors and the litigants, and provide equal access to the federal courts for everyone within the realigned district. Each division now has a full-time resident judge (Chief Judge D.P. Marshall Jr. in Jonesboro and Judge Brian S. Miller in Helena), a stable civil and criminal caseload based on historical filing trends, and enhanced accessibility, especially for those persons who reside in poor, agricultural regions and cannot afford to travel to a courthouse that is far from their home. The plan even takes into consideration the judicial work generated by correctional facilities located within the district and allocates that work accordingly. Space reduction initiatives and severe budget constraints leading to the passage of the new Act enabled the Court to redesign operations and place fully functioning courthouses and resident judges in our divisional locations. These facilities are intended to provide easy and equal access to the federal courts for communities throughout the district. Local visitors, jurors and litigants can personally experience the important and historical work of the Court. The opportunity to redesign the district will enhance and stabilize the presence of the Federal Judiciary in these divisional locations for years to come. Adverse circumstances allowed the Court to provide the people with a front row seat to witness the administration of justice. In many ways, it feels like we have come back home to the center of the town square. Endnote: 1. 28 U.S.C. § 83.
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645 CR 235, Eureka Springs, AR 72632 Vol. 55 No. 2/Spring 2020 The Arkansas Lawyer
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HUNGER AND FOOD INSECURITY: WHAT CHALLENGES DO ARKANSANS FACE DUE TO THE LACK OF ACCESS TO NUTRITIOUS FOOD?
By Nikki Clark, Susan Duell, and Trevor Hawkins
Editors’ Note: Legal Aid of Arkansas has been invited to author an occasional article on matters important to the legal needs of their clients: Arkansans in need. As attorneys of the Arkansas Bar, Rule 6.1 of the Arkansas Rules of Professional Conduct reminds us of our professional responsibility to provide legal services to those unable to pay. This article may provide perspective to you when providing those services.
Clark
Duell
Nikki Clark, Susan Duell, and Trevor Hawkins are attorneys for Arkansas Legal Aid. Hawkins
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Following the original writing of this article, the authors provided this commentary: The COVID-19 pandemic has exacerbated the existing economic challenges that Arkansans regularly face. People struggling prior to the pandemic are now suffering more, and widespread job loss has increased the number of families in need. Based on economic forecasts, the impact of the pandemic will outlast the temporary modifications to the safety net made in the last two months. Many people will have only the limited framework of traditional SNAP, Medicaid, and Unemployment Insurance to get by. In good times, that framework does not guarantee survival or stability. In worse times, it may mean widespread hunger, learning gaps, and homelessness, all of which can impair people’s long-term life chances.
I. Introduction Hunger wears many masks, including that of June.1 One of Legal Aid of Arkansas’ many clients, June lives in Newton County. She is 80 years old, receives $992 per month in Social Security, and lives alone. As best she can, June helps her daughter, incapacitated by multiple back surgeries, and her adult grandson, who has a severe intellectual disability. June has the only working vehicle in the family, so she provides rides to doctors’ appointments and other places, often 20 or 30 miles each way. When June applied for SNAP benefits, formerly known as food stamps, she qualified for the minimum benefit of $16 per month. With average monthly grocery bills for single women in the United States ranging from $163-325, this small amount covers little of her food needs.2 June often goes hungry. The local food pantry can only do so much. She manages the co-pay on her blood pressure pills, but she cannot afford the other medicines her doctor prescribes for muscle spasms, high cholesterol, and other conditions. In summer, June makes do with a fan because air conditioning is too expensive. In winter, she stays covered up to keep heating costs down. June faces impossible choices between food, health, helping family, and a minimal level of physical comfort. She tries her best to hold it together, but the stress of her situation causes her to break down in tears sometimes. June’s story is common. 15.1% of households in Arkansas are food insecure, putting the state sixth in the nation.3 Food insecurity and hunger are related, but distinct, ideas. Hunger refers to the physical sensation of discomfort. Meanwhile, food insecurity focuses on both the broader precariousness of people who lack reliable access to adequate, nutritious food and the underlying causes of such precariousness.4 Understanding why people lack nutritious food allows for the development of policy responses. Predictably, economic struggle is food insecurity’s leading cause. More than 38 million Americans live below the poverty line, which is about $26,000 for a family of four.5 Even higher incomes are no guarantee against food insecurity. Full-time workers in Arkansas earning the minimum wage gross $400 per week, which, though
“There are a large number of people in Arkansas facing food insecurity. While programs exist to address food insecurity, each is significantly limited. Understanding those limitations and possible policy responses to address them is a key first step in making sure that June and many other Arkansans have the nutrition needed for a healthy life.”
above the poverty level for a single person, is not enough to cover all of life’s expenses. Further, since many low-wage jobs do not provide consistent hours, workers often make do with much less. Individuals who qualify for disability benefits receive an average of $1,257.65 per month.6 Many disabled people who worked in low-wage jobs or who have less extensive, recent paid work live on $783 per month. Amid such tight finances, unexpected events like the loss of employment, a car breakdown, or a medical emergency leave people with little choice but to forego food. Food insecurity harms people beyond immediate discomfort and translates to long-term suffering in other aspects of life. Most notably, scientific research links food insecurity to poor health across all ages. For kids, insufficient access to food is linked to asthma, anemia, cognitive and behavior problems, anxiety and depression, overall poorer health, and impaired learning ability.7 Working-age adults typically face diabetes, kidney disease, poor mental health, coronary heart disease, and hypertension.8 Seniors face increased risk of anemia, diabetes, and decreased quality of life.9 Thus, promoting food access can translate into better health and economic prospects. Though widespread, food insecurity is tempered through safety net policies that support low-income kids, working-age adults, and seniors. This article identifies existing public benefit programs, discusses their limitations, explores food insecurity’s
impact on particularly vulnerable groups, and highlights policy responses that could increase access to nutritious food. II. What programs are available to combat food insecurity? While food insecurity is vast, public benefit programs provide limited assistance to people facing food insecurity. The Supplemental Nutrition Assistance Program (“SNAP”) is the most widely known and available. SNAP benefits are fully funded by the federal government, but administered by state agencies—here, the Department of Human Services (“DHS”). Nationwide, SNAP helps around 42 million individuals in a typical month.10 About 70% of SNAP households include children and more than 25% include seniors or individuals with disabilities.11 Notably, SNAP offers minimal assistance, as the average SNAP recipient receives only $1.40 per meal.12 To receive these modest benefits, applicants must meet income and asset limits. An individual applicant can gross no more than $16,248 per year, meaning that full-time workers earning minimum wage will not qualify. Indeed, SNAP income limits left at least 10 million food-insecure people without any federal nutrition assistance in 2017.13 Apart from income, a household must have fewer than $2,250 in assets to qualify. The asset limit increases to $3,500 if the household includes someone 60 or older or a person disabled under Social Security’s standards. DHS determines the amount of benefits using a complicated formula based on a household’s net income. For example, June, the Legal Aid client whose income is $992 per month, would have to lose around $145 per month in income to qualify for an additional dollar per month in SNAP benefits. Most recipients whom Legal Aid encounters do not know if DHS has calculated their benefits correctly. And, the complicated eligibility and reporting rules often result in overpayments that force households to repay with their limited wages, disability benefits, or tax refunds. Besides income and asset limits, federal law imposes strict work requirements on some SNAP participants. With few exceptions,14 participants age 18–49 without
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dependents are limited to three months of SNAP benefits during a three-year period unless they work or volunteer at least 80 hours per month.15 There are additional work registration requirements that apply to participants age 16–59 that can result in loss of benefits.16 Individuals with unstable jobs, varying household size, or unstable medical conditions struggle to comply. When Arkansas reintroduced strict work requirements in 2016 after having relaxed them during the economic downturn, about 25,000 lost SNAP benefits within a year.17 A recent federal rule will hamper a state’s flexibility to loosen work requirements in areas with high levels of unemployment.18 This change would cause as many as 700,000 people in the U.S. to lose SNAP benefits19 and restrict SNAP’s role as an automatic economic stabilizer during downturns.20 Indeed, SNAP’s benefits for local economies are often overlooked.21 In 2017, SNAP recipients in Arkansas redeemed $525.4 million in benefits.22 Over 2,000 retailers in the state participate in the SNAP program.23 At the height of the recession, the multiplier effect of SNAP turned $50 million of redeemed benefits into $85 million in economic activity.24 Most participating retailers are smaller stores. SNAP accounts for a large percentage of their sales, especially in high poverty areas.25 SNAP’s benefits come with little risk, as program fraud by SNAP recipients is rare. A 2018 report from the Congressional Research Service noted that for every 10,000 households participating in SNAP, only about 14 were determined to have committed fraud.26 Apart from SNAP, there are no other food programs broadly available to the general population. Food banks are left to fill the gap, but, for all of their good work, they are unable to meet the vast need. While food banks serve over 46 million individuals yearly in the U.S., charity-driven food banks must limit the amount of food they give, the number of times people can come pick up food per month, and the days and hours they are open.27 They face logistical challenges and significant expenses in gathering, storing, and distributing food. Understandably, then, their reach is far less than that of SNAP, which covers 12 meals for every one meal provided by food banks.28 20
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III. Who is vulnerable to food insecurity? While food insecurity impacts everyone, certain groups are particularly vulnerable. A. Rural Populations Food insecurity is most prevalent in rural communities. Arkansas, a predominately rural state, ranks among the highest of states with households that face food insecurity. The latest Map the Meal Gap study found that while rural counties make up 63% of all U.S. counties, they represent 78% of counties with the highest estimated rates of food insecurity in the country.29 While Arkansas has seen a slow decline in the unemployment rate over the last 10 years, the benefits of this growth have not been shared statewide. The rural areas of the state only saw a 0.3% increase in employment from 2010 to 2016 and have still not reached pre-recession levels of employment.30 Many of these rural areas would qualify to have the state waive SNAP work requirements, allowing more people to access benefits where job opportunities are scarce. B. Children Over 160,000 kids in Arkansas—about 24%–are food insecure, ranking the state second in the nation only to New Mexico.31 Lacking adequate nutritious food impairs children’s ability to learn. Such students tend to have lower math scores and poorer grades, experience greater behavioral issues and tardiness, and struggle getting along with others.32 Efforts to ameliorate food insecurity in kids give them a better chance of long-term success. The unique nutrition needs of expectant mothers, infants, and young children are addressed by the Women, Infant, and Children’s (“WIC”) program. WIC provides low-income pregnant, postpartum, and breastfeeding women, infants, and children up to age five with a monthly average of about $61 per person worth of limited foods, such as infant formula, milk, fruits, and vegetables.33 Those receiving Medicaid, SNAP benefits, or Transitional Employment Assistance (TEA) are eligible for WIC if they meet all other guidelines. WIC is considered to be cost-effective, reduces infant mortality, improves growth of nutritionally at-risk infants and children, and provides for better long-term outcomes for children.34 WIC is also federally funded and serves 50% of infants, 25% of children, and 33% of
pregnant women in the U.S.35 Food insecurity at home translates to food insecurity in schools. The National School Lunch Program is a meal program that provides free lunches to children below 130% of the poverty level and reduced-price lunches to children between 130% and 185% of the poverty level.36 While the free/reduced lunch program sometimes provides the only meal children may eat during the day, the program has its limitations. School districts that choose to participate in the program require detailed income information from parents that can be hard to obtain.37 For students who qualify for reduced lunch, there still may be an issue of paying for lunch. As of December 2019, families in Rogers School District owe almost $300,000 in school meal debt.38 Some schools have gone so far as to single out or punish students owing lunch debt.39 Such actions intensify the existing stigma associated with the program. As Fordyce School District Superintendent Albert Snow noted, “[m]any parents would do anything to get off that list” of those needing assistance.40 The Arkansas legislature has attempted a fix by passing the Hunger-Free Student’s Bill of Rights Act to prohibit conduct that would stigmatize a student for owing a lunch debt.41 Under this law, a school cannot require students to wear wristbands, give students hand stamps, require students to throw away meals after they’ve been served, require students to sit in a separate location from other students or publicly name students owing a debt.42 However, the act does not currently provide any consequences for schools engaging in prohibited conduct. The nutritional value of the food provided at school also matters. Against the advice of children’s health experts, a recent federal rule change has rolled back nutritional standards requiring healthier food in schools.43 C. Elderly Nearly one-in-six seniors are food insecure in the U.S.44 Of course, seniors face severely limited incomes, with 30.1% of all American seniors having income below 200% of the federal poverty level.45 Like June, seniors often skip meals to pay off debt or cover the cost of things such as medicine.46 Social Security benefits, most seniors’ primary income source, are determined by the beneficiary’s age and earnings record.
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“Food insecurity harms people beyond immediate discomfort and translates to long-term suffering in other aspects of life.” In 2018, the average benefit amount for Arkansas’ seniors was only $1,386.84.47 Most of Legal Aid’s senior clients receive somewhere between $800-1200 per month. Out of this, seniors must pay the mandatory Medicare premiums of $135. While there are Medicare Savings Programs administered by DHS that help pay premiums, not everyone qualifies, and many of those who do still have medical expenses for Medicare’s deductibles and co-pays. Those who do not have an extensive paid work history, including people who worked primarily in the home raising children or caregiving, and those who experienced disabilities earlier in life often qualify only for Supplemental Security Income (“SSI”). SSI provides a maximum below-poverty monthly benefit of $783. If someone qualifies for SSI, his or her income and assets are strictly monitored. Cash support from family members, an unused piece of land passed down from relatives, or savings of more than $2,000 can reduce monthly benefits or make someone altogether ineligible. Seniors can also qualify for SNAP, but do not receive any special benefits from it. For seniors who cannot easily make it out of their home, Meals on Wheels or similar programs will deliver up to one meal per day for people who are homebound, unable to cook or go to the grocery store on their own, or disabled.48 IV. Policy Responses While Legal Aid does not recommend or advocate for any specific policy responses to food insecurity, we can highlight options that might make a difference for our client communities. Possibilities to facilitate access to SNAP include raising income limits, raising or eliminating asset limits, eliminating the paperwork burdens on adults to maintain SNAP eligibility, and streamlining the eligibility process through so-called “broadbased categorical eligibility.”49 Increases to the modest SNAP benefit amounts would give people more financial resources to purchase food. In the school context, districts can elect to participate in the Community Eligibility 22
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Provision (“CEP”) for free lunch.50 This prevents districts from having to get individualized income information and instead use eligibility for SNAP and other assistance programs to qualify. Districts with at least 40% of their students certified to receive free lunch are eligible for CEP, which provides free lunch to all students.51 Currently 56 school districts in Arkansas participate.52 On the national level, Congress has proposed the Universal School Meals Program Act of 2019 to remove the National School Lunch Program’s income limits.53 Other income and work help generate and preserve income for food. Arkansas’ decision to expand Medicaid to 240,000 low-income Arkansans allows people to stay healthy enough to work while insulating them against medical conditions and costs that would further strain limited resources. Some states have enacted earned income tax credits to put more money in the pockets of low-income families.54 Robust, voluntary job training efforts offering intensive skill development, financial assistance, and child care are also proven to help low-income workers qualify for higher-earning jobs.55 V. Conclusion There are a large number of people in Arkansas facing food insecurity. While programs exist to address food insecurity, each is significantly limited. Understanding those limitations and possible policy responses to address them is a key first step in making sure that June and many other Arkansans have the nutrition needed for a healthy life. To that end, lawyers are welcome to volunteer with Legal Aid of Arkansas or our sister organization, the Center for Arkansas Legal Services. While we are certainly happy to train committed volunteer attorneys in the intricacies of the various public benefits programs (we hope you love the CFRs), working with our clients on other types of cases also lends insight into our clients’ struggles and can inform more robust responses to poverty-related issues like food insecurity. For legislators and agency officials,
Legal Aid can serve as a bridge to connect policymakers with impacted communities so that policymaking meaningfully includes a range of people experiencing food insecurity. In addition, legislators and agency officials can invite experts at Legal Aid to testify or comment on draft or existing legislation or rules. We can inform the policymaking process with statistical and qualitative data and on-the-ground experience as frontline advocates helping thousands of people each year navigate the real-life problems of poverty. Endnotes: 1. Names have been changed to protect anonymity of clients. 2. What is the Average Grocery Bill for One Person?, Reference, https://www.reference. com/business-finance/average-grocery-billone-person-ea7b43c7cfe40f26 (last visited Feb. 5, 2020). 3. Household Food Security in the United States in 2018, USDA, https://www.ers. usda.gov/webdocs/publications/94849/err270.pdf?v=963.1 (last visited Feb. 5, 2020). 4. Definitions of Food Insecurity, USDA, https://www.ers.usda.gov/topics/foodnutrition-assistance/food-security-in-the-us/ definitions-of-food-security/ (last updated September 4, 2019); What is Food Insecurity, Feeding America, https://hungerandhealth.feedingamerica.org/understand-foodinsecurity/ (last visited Feb. 4, 2020). 5. Facts About Poverty and Hunger in America, Feeding America, feedingamerica.org/ hunger-in-america/facts (last visited Jan. 17, 2020). 6. Selected Data From Social Security’s Disability Program, Social Security Administration, https://www.ssa.gov/OACT/ STATS/dibGraphs.html#2 (last visited Feb. 12, 2020). 7. Too Hungry to Learn: Food Insecurity and School Readiness, Children’s Healthwatch, https://www.childrenshealthwatch. org/wp-content/uploads/toohungrytolearn_ report.pdf (last visited Feb. 12, 2020). 8. Steven Carlson and Brynne KeithJennings, SNAP Is Linked with Improved Nutritional Outcomes and Lower Health Care Costs, Center on Budget and Policy Priorities (Jan. 17, 2018), https://www.
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cbpp.org/research/food-assistance/snap-islinked-with-improved-nutritional-outcomesand-lower-health-care. 9. Id. 10. Id. 11. Id. 12. Chart Book: SNAP Helps Struggling Families Put Food on the Table, Center on Budget and Policy Priorities, https:// www.cbpp.org/research/food-assistance/ chart-book-snap-helps-struggling-familiesput-food-on-the-table (last updated Nov. 7, 2019). 13. Food Insecurity and Poverty in the United States: Findings From the USDA and U.S. Census Bureau, Feeding America, https:// hungerandhealth.feedingamerica.org/wpcontent/uploads/2018/10/Food-InsecurityPoverty-Brief_2018.pdf (last visited Feb. 13, 2020). 14. SNAP Work Requirements, USDA, https://www.fns.usda.gov/snap/workrequirements (last updated May 29, 2019). Individuals who have a disability, are pregnant, or live in the household with a dependent minor are exempt from the work requirement. 15. Id. 16. Id. 17. Brandon Mulder, State Sees Drop in Food-Stamp Recipients in ’16, Arkansas Online (Dec. 30, 2016), https://www. arkansasonline.com/news/2016/dec/30/statesees-drop-in-food-stamp-recipient/. 18. Final Rule: SNAP Requirements for AbleBodied Adults Without Dependents, USDA, https://www.fns.usda.gov/snap/fr-120419 (last updated Dec. 5, 2019). 19. Russell Redman, SNAP Rule Change Would Cut Food Stamp Benefits to 700,000 Recipients, Supermarketnews (Dec. 4, 2019), https://www.supermarketnews.com/ laws-regulations/snap-rule-change-wouldcut-food-stamp-benefits-700000-recipients. 20. Nune Philips, SNAP Contributes to a Strong Economy, CLASP (Aug. 2017), https://www.clasp.org/sites/default/files/ SNAP-Contributes-to-a-Strong-Economy. pdf. 21. Elizabeth Wolkomir, SNAP Boosts Retailers and Local Economies, Center on Budget and Policy Priorities (April 6, 2018), https://www.cbpp.org/research/foodassistance/snap-boosts-retailers-and-localeconomies. 22. SNAP is an Important Public-Private Partnership, Center on Budget and 24
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Policy Priorities, https://www.cbpp. org/snap-is-an-important-public-privatepartnership#Arkansas (last visited Jan. 15, 2020). 23. Id. 24. Id. 25. Wolkomir, supra note 21. See also, Eudora’s Only Grocery Store Closed Down Business Today, KARK (January 8, 2019), https:// www.kark.com/news/local-news/eudoraonly-grocery-store-closed-down-businesstoday/. Earlier in January, the only grocery store in Eudora, Arkansas, closed. The closing of the store will have a big impact on the elderly community in Eudora because many cannot travel to get groceries. Smaller stores such as the store in Eudora depend on SNAP benefits to help keep their doors open. 26. Randy Alison Aussenberg, Errors and Fraud in the Supplemental Nutrition Assistance Program (SNAP), Congressional Research Service (Sept. 28, 2018), p. 14, https://fas.org/sgp/crs/misc/R45147.pdf. 27. Tamara Gane, Being Hungry in America Is Hard Work, National Public Radio, https://www.npr.org/sections/ thesalt/2019/06/30/735881297/opinionbeing-hungry-in-america-is-hard-work-foodbanks-need-your-help. 28. New Data Shows Millions of Hungry Americans Ineligible for Federal Nutrition Assistance, Feeding America (May 2, 2018), https://www.feedingamerica.org/about-us/ press-room/MMG2018Release. 29. Map the Meal Gap 2019: A Report on County and Congressional District Food Insecurity and County Food Cost in the United States in 2017, Feeding America, https:// www.feedingamerica.org/sites/default/ files/2019-04/2017-map-the-meal-gap-technical-brief.pdf (last visited Jan. 20, 2020). 30. Rural Profile of Arkansas, University of Arkansas Division of Agriculture, https://www.uaex.edu/publications/pdf/ MP551.pdf (last visited Jan. 20, 2020); Arkansas Counties, FRED, https://fred. stlouisfed.org/categories/27445 (last visited Jan. 20,2020); Unemployment Rate Rankings for Arkansas Counties, Arkansas Division of Workforce Services, http://www.discover. arkansas.gov/Employment/UnemploymentRate-Rankings-by-Arkansas-County (last updated December 2019). 31. Map the Meal Gap, supra note 29. Arkansas Still Leads Nation in Food Insecurity, KATV (May 3, 2019), https://katv.com/ news/local/arkansas-still-leads-nation-in-
food-insecurity. 32. Benefits of School Lunch, Food Research & Action Center, https://www.frac.org/ programs/national-school-lunch-program/ benefits-school-lunch (last visited Jan. 15, 2020). 33. Policy Basics: Special Supplemental Nutrition Program for Women, Infants, and Children, Center on Budget and Policy Priorities, https://www.cbpp.org/research/ food-assistance/policy-basics-special-supplemental-nutrition-program-for-womeninfants-and (last updated April 26, 2017). 34. WIC as a Public Health Intervention, NCSL (July 12, 2018), https://www.ncsl. org/research/human-services/wic-as-a-publichealth-intervention.aspx. 35. Victor Oliveira and Mark Prell, Sharing the Economic Burden: Who Pays for WIC’s Infant Formula, USDA (Sept. 1, 2004), https:// www.ers.usda.gov/amber-waves/2004/september/sharing-the-economic-burden-whopays-for-wics-infant-formula/. 36. 42 U.S.C. § 1751; National School Lunch Program, DHS, https://dhs.arkansas.gov/dccece/snp/NSLPInfoM.aspx (last visited Jan. 21, 2020). 37. Seth Blomeley, Arkansas Schools Take Advantage of Free-Meal Program, Southwest Times Record (June 10, 2018), https:// www.swtimes.com/news/20180610/arkansas-schools-take-advantage-of-free-mealprogram. 38. Families in an Arkansas School District Owe Almost $300,000 in School Lunch Debt, Nexstar Digital Content (Dec. 18, 2019), https://fox40.com/2019/12/28/ families-in-an-arkansas-school-district-owealmost-300000-in-school-lunch-debt/. 39. Michael R. Wickline, School-Lunch Debt Measure Advances, Arkansas Online (March 8, 2019), https://www.arkansasonline.com/news/2019/mar/08/school-lunchdebt-measure-advances/. 40. Blomeley, supra note 37. 41. Act 428 of 2019, http://www.arkleg. state.ar.us/assembly/2019/2019R/Acts/ ACT428.pdf. 42. Id. 43. Rachel Kogan, Rollback of Nutrition Standards Not Supported By Evidence, Health Affairs (March 13, 2019) https:// www.healthaffairs.org/do/10.1377/ hblog20190312.130704/full/. 44. The Facts Behind Senior Hunger, Aging in Place, https://www.aginginplace.org/ the-facts-behind-senior-hunger/ (last updated
Feb. 2020). 45. Juliette Cubanski, Wyatt Koma, Anthony Damico, and Tricia Newman, How Many Seniors Live in Poverty?, Kaiser Family Foundation (Nov. 19, 2018), https://www. kff.org/medicare/issue-brief/how-manyseniors-live-in-poverty/. 46. James P. Zillak and Craig Gundersen, The State of Senior Hunger in America in 2017, Feeding America (May 2019), https://www.feedingamerica.org/sites/default/files/2019-06/The%20State%20of%20 Senior%20Hunger%20in%202017_F2.pdf. 47. Number of Beneficiaries with Benefits, Social Security Administration, https:// www.ssa.gov/policy/docs/statcomps/oasdi_ zip/2018/ar.pdf (last visited Feb. 5, 2020). 48. Who Qualifies for Meals on Wheels in Arkansas, Carelink (July 2, 2019), https:// www.carelink.org/blog/posts/who-qualifiesfor-meals-on-wheels-in-arkansas. 49. The Supplemental Nutrition Assistance Program (SNAP): Categorical Eligibility, Congressional Research Service, https:// fas.org/sgp/crs/misc/R42054.pdf (last updated Oct. 25, 2019). 50. Pub. L. No. 111-296. The CEP is a provision of the Healthy, Hunger-Free Kids
Act, which was signed in 2010 and went into effect in 2014. 51. The Community Eligibility Provision (CEP), USDA, https://fns-prod.azureedge. net/sites/default/files/cn/CEPfactsheet.pdf (last visited Jan. 22, 2020). 52. Blomely, supra note 37. 53. S. 2609, 116th Cong. (2019-2020); Support the Universal School Meals Program Act of 2019, FRAC, https://frac.org/wp-content/ uploads/cnr-support-the-universal-schoolmeals-program-act-2019-1.pdf (last visited Feb. 6, 2020). 54. Tax Credits for Working Families: Earned Income Tax Credit (EITC), National Conference of State Legislatures (March 25, 2019), https://www.ncsl.org/research/laborand-employment/earned-income-tax-creditsfor-working-families.aspx. 55. Ladonna Pavetti, Opportunity-Boosting Job Preparedness Takes Significant Investment, Evidence Shows, Center on Budget and Policy Priorities (April 12, 2018), https://www.cbpp.org/research/poverty-andinequality/opportunity-boosting-job-preparedness-takes-significant-investment.
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EXTENT AND APPLICABILITY OF UNINSURED AND UNDERINSURED MOTORIST COVERAGE IN ARKANSAS
By Michael McCarty Harrison
Michael McCarty Harrison serves of counsel at Friday, Eldredge & Clark. She focuses her practice on insurance defense and coverage, products liability, medical malpractice, personal injury defense, transportation litigation, fire/arson investigation and defense and appellate advocacy.
30
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Introduction Many Arkansas attorneys have an active bodily-injury practice. Often, their clients’ claims arise as a result of motor vehicle accidents. Though Arkansas requires all vehicles operating on its public roadways to carry liability coverage of a minimum limit, not all vehicle owners do so, for a variety of reasons. Further, even if the tortfeasor has liability coverage, his or her liability policy limits may not be sufficient to satisfy all damages incurred by the injured party. Or, though the tortfeasor has a liability policy, there may be coverage exclusions applicable, such that the tortfeasor’s liability carrier denies coverage. In instances such as these, coverage may be available under the injured party’s own liability policy, assuming he or she carries uninsured or underinsured motorist coverage. Questions necessarily arise, on both sides, with regard to such coverages and the extent and applicability thereof. As most attorneys’ practices are not solely devoted to auto injury law and most insurance carriers no longer have claims adjusters physically located in Arkansas and/or that only handle Arkansas claims, the attorneys and claims adjusters may not be familiar with the specific nuances of Arkansas law as it pertains to uninsured and underinsured motorist liability coverage. This article is intended to address the more common questions raised, by both sides, concerning underinsured and uninsured motorist coverage in Arkansas. Statutory Requirements 1. Is uninsured motorist (UM) coverage mandatory or discretionary? Uninsured motorist bodily injury coverage is mandatory, but the insured can reject it in writing. Arkansas Code Annotated § 23-89-403(a) states “[n]o automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto ... [h]owever, the coverage required to be provided under this section shall not be applicable when any insured named in the policy has rejected the coverage in writing[.]” 2. Is underinsured motorist (UIM) coverage mandatory or discretionary? Underinsured motorist coverage is mandatory, but the insured can reject it in writing. Arkansas Code Annotated § 23-89-209(a) states “[n]o private passenger automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicles in this state shall be delivered or issued in this state ... unless the insured has the opportunity, which he or she may reject in writing, to purchase underinsured motorist coverage.” 3. Is uninsured motorist property damage (“UMPD”) coverage mandatory or discretionary? Uninsured motorist property damage coverage is mandatory, but the insured can reject in it writing. Arkansas Code Annotated § 23-89-404 states “[e]very insured purchasing uninsured motorist bodily injury coverage shall be provided an opportunity to include uninsured motorist property damage coverage” which need not be offered “[a]fter the uninsured motorist property damage coverage has been made available to an insured one (1) time and has been
“Though distinct from other areas of the law, underinsured and uninsured motorist coverage law in Arkansas is understandable and fairly well developed.” ...
rejected in writing . . . unless the insured makes a written request for the coverage.” 4. Is uninsured motorist “economic only” (“UMEO”) coverage mandatory or discretionary? There are no Arkansas statutes or case law discussing uninsured motorist “economic only” coverage. Limits 5. Must the UM or UIM limits match the liability limits for “bodily injury?” Are there minimum UM or UIM limits? Yes. Uninsured bodily injury and underinsured motorist benefits limits must be offered by the carrier in an amount that is not less than the limits prescribed in Ark. Code Ann. § 27-19-605 ($25,000 per person liability limits). Additionally, in the context of uninsured bodily injury coverage, “[s] hould a named insured or applicant purchase third-party liability coverage in greater limits than the minimum provided in Ark. Code Ann. § 27-19-605, the insurer shall have available and the agent shall offer a named insured or applicant coverage required under this section in limits up to his or her thirdparty liability limits.” See Ark. Code Ann. §§ 23-89-209(a)(4) & 23-89-403(a)(l) & (3). 6. Must the UMPD limits match the liability limits for “property damage”? Are there minimum UMPD limits? Yes. Ark. Code Ann. § 23-89-404(b) states “[n]o insurer shall be required to offer limits of uninsured motorist property damage coverage greater in amount than the property damage liability limits purchased by the insured.”
7. Are there minimum limits for UMEO coverage? There are no Arkansas statutes or case law discussing uninsured motorists “economic only” coverage. 8. Are there minimum limits for other UM coverages that are mandatory or discretionary Arkansas? No. When is Coverage Available? 9. Under what circumstances is UM coverage available? What conditions precedent must the insured satisfy? What coverage defenses can the insurer assert? Uninsured motorist coverage is available “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.” Ark. Code Ann. § 2389-403(a)(l). Uninsured motorist coverage applies when the accident in question involves the operator of another vehicle, which is uninsured. Williams v. Shelter Mut. Ins. Co., 315 Ark. 701, 870 S.W.2d 387 (1994). Arkansas courts have upheld policy provisions requiring physical contact with the uninsured vehicle, in order to avoid false “hit and run” claims. Ward v. Consolidated Underwriters, 259 Ark. 696, 535 S.W.2d 830 (1976); Southern Farm Bureau Cas. Ins. Co. v. Fields, 262 Ark. 144, 553 S.W.2d 278 (1977). 10. Under what circumstances is UIM coverage available? What conditions precedent must the insured satisfy? What coverage defenses can the insurer assert?
Underinsured motorist coverage “shall enable the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injuries to or death of an insured which the insured is legally entitled to recover from the owner or operator of another motor vehicle whenever the liability insurance limits of the other owner or operator are less than the amount of the damages incurred by the insured.” Ark. Code Ann. § 23-89-209(a)(3). The obligation to pay underinsured motorist benefits is not triggered until it is determined whether the tortfeasor is, in fact, underinsured. Hartford Ins. Co. of the Midwest v. Mullinax, 336 Ark. 335, 984 S.W.2d 812, 815 (1999) (citing Shepherd v. State Auto Prop. & Cas. Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993)). To make this determination, the underinsured motorist carrier must know the extent of the insured’s damages and the liability benefits that have been paid to the insured by the tortfeasor’s carrier. Ark. Code Ann. § 23-89209; Mullinax, 984 S.W.2d at 815 (citing State Farm Mut. Auto. Ins. Co. v. Thomas, 316 Ark. 345, 871 S.W.2d 571 (1994)). The limits of liability coverage from all tortfeasors must be paid, in full, before the insured is entitled to underinsurance benefits. Birchfield v. Nationwide Ins., 317 Ark. 38, 875 S.W.2d 502, 504 (1994) (applying Ark. Code Ann. § 23-89-209(a)(3)). 11. Under what circumstances is UMPD coverage available? What conditions precedent must the insured satisfy? What coverage defenses can the insurer assert? Uninsured motorist property damage coverage is applicable to losses in excess
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of $200, except the $200 deductible does not apply when the vehicle involved in the accident is insured by the same company for both collision and uninsured motorist property damage coverage and the driver of the uninsured vehicle has been positively identified and is solely at fault for the damage to the vehicle. Ark. Code Ann. § 23-89404(a). Uninsured motorist property damage coverage requires an accident involving an operator of another vehicle and does not apply to one-vehicle accidents only. Pardon v. So. Farm Bureau Cas. Ins. Co., 315 Ark. 537, 539, 868 S.W.2d 468, 469 (1994). Arkansas courts have upheld policy provisions requiring physical contact with the uninsured vehicle to avoid false “hit and run” claims. Pardon, 868 S.W.2d at 469. 12. Under what circumstances is UMEO coverage available? What conditions precedent must the insured satisfy? What coverage defenses can the insurer assert? There are no Arkansas statutes or case law discussing uninsured motorist “economic only” coverage. 13. Under what circumstances is coverage available under other UM coverages? There are no other uninsured motorist coverages recognized by Arkansas law. Arbitrating and Litigating Disputes 14. Is arbitration of UM and/or UIM claims allowed, or specifically prohibited? UIM? UMPD? UMEO? Other uninsured coverages? Insurers are specifically prohibited from requiring arbitration or mediation. Arkansas Code Annotated § 23-79-203 states “[n]o insurance policy or annuity contract shall contain any condition, provision, or agreement which directly or indirectly deprives the insured or beneficiary of the right to trial by jury on any question of fact arising under the policy or contract” and further states “[a]ll such provisions, conditions, or agreements shall be void.” However, the insurer and insured may, voluntarily and by mutual agreement, submit an uninsured or underinsured motorist claim to arbitration and/or mediation. Ins. Co. of N. Am. v. Kempner, 132 Ark. 215, 200 S.W. 986 (1918). They may further agree to proceed to trial with a binding high/low agreement in place, such that both parties know, at the onset of trial, the minimum and maximum 32
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amounts the insured may receive as well as the minimum and maximum amounts the insurance carrier may be required to pay. 15. What requirements must an insured claimant satisfy in order to file suit against an insurer for UM or UIM coverage? There are no special requirements under Arkansas law. Further, in an underinsured situation, the insured may name the insurer as a defendant in a suit along with the tortfeasor underinsured driver even if the insured has not yet settled the underlying bodily injury claim against the tortfeasor underinsured driver. Prior to trial, the underinsured motorist carrier has the option of electing to proceed to trial as a participating defendant, in which instance the jury will be aware of both the underlying liability and the underinsured motorist policies, and their limits, or it may elect to agree to be bound by the verdict rendered at trial, not participate in the trial and, thereby, prevent the jury from being aware of either policy or the limits thereof. Brinker v. Forrest City Sch. Dist. No. 7, 344 Ark. 171, 40 S.W.3d 265 (2001). Traditionally, most carriers elect to be bound by the verdict so as not to interject insurance coverage into the trial, and typically do so on the eve of trial so that they may still participate in all discovery conducted prior thereto. 16. What is the statute of limitations for bringing a UM or UIM claim? Arkansas has a five-year statute of limitations for both uninsured and underinsured claims. Ark. Code Ann. § 2379-202; Ark. Code Ann. § 16-56-111; see, Shelter Mut. Ins. Co. v. Nash, 357 Ark. 581, 587, 184 S.W.3d 425, 428 (2004) (holding an insured’s suit against his/her insurer for underinsured motorist benefits is clearly an action by an insured against the insurer to recover a claim arising under a policy of insurance, thus the five-year statute of limitations applies). The statute of limitations begins to run on uninsured motorist claims from the date of the accident, but the statute of limitations begins to run on underinsured motorist claims from the date of settlement with the tortfeasor’s carrier. Shelter Mut. Ins. Co., 357 Ark. at 591, 184 S.W.3d at 430 (holding Arkansas law is clear that no breachof-contract cause of action accrues until the contract is breached or repudiated, thus, the statute of limitations does not begin to run
until the moment the contract is breached and the right to commence an action comes into existence). Because underinsured motorist benefits are not available until it is apparent that the tortfeasor’s coverage is insufficient to compensate the insured, the Arkansas Supreme Court rejects the view that the statute of limitations for underinsured motorists claims begins to run when the accident occurs. Id. at 590, 184 S.W.3d at 430. Final Amounts Paid or Awarded 17. Can offsets against the UM, UIM, UMPD, UMEO or other UM coverage limits be taken? The Arkansas’ underinsured motorist statute, Ark. Code Ann. § 23-89-209(a) (5), states offsets are not allowed: “Coverage of the insured pursuant to underinsured motorist coverage shall not be reduced by the tortfeasor [underinsured driver’s] insurance coverage except to the extent that the injured party would receive compensation in excess of his or her damages.” The Arkansas Court of Appeals has explained “[t]he amount of the tortfeasor’s coverage has no effect on the [insured’s] recovery under UIM coverage except that the [insured] cannot be reimbursed twice for the same damages.” Southern Farm Bureau Cas. Ins. Co. v. Pettie, 54 Ark. App. 79, 924 S.W.2d 828 (1996). In holding that an offset for medical payments was prohibited, the Arkansas Supreme Court stated that “[p]ermitting offsets of any type would allow insurers, by contract, to alter the provisions of the statute and to escape all or part of the liability, which the Legislature intended they should provide.” State Farm Mut. Auto. Ins. Co. v. Sims, 288 Ark. 541, 545, 708 S.W.2d 72, 74 (1986). In essence, as the insured paid for two coverages, medical payments and underinsured motorist, he is entitled to both. An insurer cannot offset payments made to its insured under one coverage for another. Gause v. Shelter Gen. Ins. Co., 81 Ark. App. 133, 135, 98 S.W.3d 854, 855 (2003). 18. Can the insurer take offsets for medical payments, workers’ compensation or no-fault insurance? Are any other offsets allowed in the state? A liability policy provision stating an insurer shall not be obligated, under the uninsured motorist coverage provision, to pay
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for the damages the insured may be entitled to recover from the uninsured vehicle operator relating to expenses for medical services paid or payable under the medical payments coverage of the policy is void and against public policy. Heiss v. Aetna Cas. & Sur. Co., 250 Ark. 474, 479, 465 S.W.2d 699, 701 (1971). An insurance company cannot set off one payment under its policy for another one under the same policy. Gause v. Shelter Gen. Ins. Co., 81 Ark. App. 133, 135, 98 S.W.3d 854, 855 (2003). The amount of recovery under the uninsured motorist provisions of a liability policy cannot be reduced by the amount the injured party receives under workers’ compensation coverage where the setoff provision reduces the limit of liability under the uninsured motorist coverage. Travelers Ins. Co. v. National Farmers Union Property & Casualty Co., 252 Ark. 624, 480 S.W. 2d 585 (1972). In Shepherd v. State Auto Prop. & Cas. Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993), the Arkansas Supreme Court extended the decision in Travelers Ins. Co. v. National Farmers Union Property and Casualty Company to underinsured motorist benefits. However, in Shelter Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992), the Arkansas Supreme Court approved offsets for medical benefits and wage loss payments against a judgment for underinsured motorist benefits because the insurer is not precluded from employing its right of subrogation when the insured has been fully compensated and is in a position where the insured will recover twice for some of his or her damages. In other words, the court enforced the “made whole doctrine,” following a finding the insured had been made whole by the judgment, and allowed an offset to occur. 19. What liens, if any, can be asserted against the insured’s recovery of UM? UIM? UMPD? UMEO? Other uninsured coverages? Hospital liens can be asserted against underinsured motorist benefits. Stuttgart Reg. Med. Ctr. v. Cox, 343 Ark. 209, 33 S.W.3d 142 (2000). Further, per the Medical, Nursing, Hospital, and Ambulance Service Lien Act, codified at Ark. Code Ann. §§ 1846-101, et seq., they can be asserted against uninsured motorist benefits as well. Ark. Code Ann. § 18-46-104. Medicaid liens can also be asserted against uninsured and underinsured motorist 34
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benefits. “As a condition of eligibility, every Medicaid applicant shall automatically assign his or her right to any settlement, judgment, or award which may be obtained against any third party to the Department of Human Services to the full extent of any amount which may be paid by Medicaid for the benefit of the applicant.” Ark. Code Ann. § 20-77-307(a); Ark. Dep’t of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 (2006). Medicare liens too can be asserted against uninsured and underinsured motorist benefits. Although Medicare is a secondary payer system, when another insurer is responsible for providing primary coverage Medicare will make conditional payment if a primary liability insurer has not made or cannot reasonably be expected to make payment promptly. 42 U.S.C. § 1395y(b)(2)(B)(i). Medicare may seek reimbursement from the primary plan or any entity receiving payment from a primary plan if the primary plan had responsibility to make the payment. 42 U.S.C. § 1395y(b)(2)(B)(ii). Responsibility for reimbursing Medicare may be demonstrated by a judgment, a payment conditioned upon the recipient’s compromise, waiver, or release (whether or not there is a determination of admission of liability), of payment for items or services included in a claim against the primary plan or the primary plan’s insured, or by other means. Enforcement of a primary plan’s payment of reimbursement obligation may be made by a direct cause of action by the government, a subrogation claim brought by the government, and by a private cause of action. 42 U.S.C. § 1395y(b)(2)(B)(iii) & (iv). If the Medicare beneficiary on whose behalf a conditional payment is made has a tort claim, Medicare may seek reimbursement from the insurance carrier, but only after, and to the extent that, such carrier’s liability under the insurance policy for the services has been determined. Stalley ex rel. United States v. Catholic Health Initiatives, 458 F. Supp. 2d 958, 960-61 (E.D. Ark. 2006). Additionally, child support liens may be asserted against uninsured and underinsured motorist benefits. “In all decrees or orders that provide for the payment of money for the support and care of any children, the court shall include a provision directing a payor to deduct from . . . [a]ny lump-sum payment
as defined in § 9-14-201, the full amount of past due support owed by the noncustodial parent not to exceed fifty percent (50%) of the net lump-sum payment.” Ark. Code Ann. § 9-14-218(a)(1)(B). “‘Lump-sum payment’ means any . . . [p]ayment regardless of frequency that is dependent upon meeting a condition precedent, including without limitation . . . [t]he settlement of a claim . . . .” Ark. Code Ann. § 9-14-201(5)(B)(iv). 20. Can different limits be stacked? If yes, which limits? Does a specific procedure apply? Arkansas’ uninsured and underinsured motorist statutes do not prohibit stacking of coverages. However, stacking may be precluded by an appropriate anti-stacking clause in the policy. Arkansas courts have always upheld such clauses so long as they are not ambiguous. Shelter Mut. Ins. Co. v. Williams, 69 Ark. App. 35, 9 S.W.3d 545 (2000); Sweeden v. Farmers Ins Grp., 71 Ark. App. 381, 389, 30 S.W.3d 783, 788 (2000). However, the Arkansas Supreme Court has determined Ark. Code Ann. § 2389-209 requires insurance carriers to offer, at a minimum, underinsured coverage for each vehicle owned by the insured and to be insured by the carrier. If the carrier fails to do so, and the insured has more than one vehicle insured with the same insurance carrier, the insured may stack the minimum coverages that should have been offered but were not, even though the policy prohibits the stacking of policies and/or all vehicles were not insured under the same policy. Ross v. United Servs. Auto. Ass’n, 320 Ark. 604, 610, 899 S.W.2d 53, 56 (1995). 21. In UIM claims, can the UIM insurer substitute its settlement payment for the insured’s settlement with the tortfeasor underinsured driver’s liability insurer? What is the applicable procedure? What rights does the UIM insurer then have? Arkansas’ underinsured motorist statute, codified at Ark. Code Ann. § 23-89-209, provides a detailed procedure for handling consent to settle with the tortfeasor and the subrogation rights of the carrier. Subsections (c) and (d) of the statute provide if a tentative settlement agreement for the policy limits of the tortfeasor underinsured driver’s liability policy has been reached, the injured insured must give written notice to the underinsured motorist carrier by certified
mail and request the carrier’s permission to settle the underlying liability limits. The notice shall include: written documentation of all pecuniary losses, a signed HIPAA authorization for obtaining medical records and bills, written confirmation of the alleged tortfeasor’s underinsured liability limits and the terms of the proposed settlement. Within 30 days of receipt of the notice, the underinsured motorist carrier may either make payment to the insured of the proposed settlement amount or waive all of its rights of subrogation. If paid, the underinsured motorist carrier is then entitled to subrogate the extent of the payments to its insured’s right of recovery against the tortfeasor underinsured driver. The benefits to the underinsured motorist carrier to pursuing this course of action are that it gives it additional time to investigate the merits and value of the underinsured motorist claim, as well as leaves the tortfeasor underinsured driver as the named defendant in the case (assuming suit was filed), as opposed to the underinsured motorist carrier becoming the named defendant in the case.
Bad Faith 22. Does Arkansas recognize a cause of action for bad faith in the UM context? UIM? Yes. Arkansas recognizes the tort of bad faith against an insurer for misconduct in an effort to avoid liability under an insurance policy. Country Corner Food & Drug v. First State Bank & Tr. Co., 332 Ark. 645, 655, 966 S.W.2d 894, 898 (1998) (citing Affiliated Foods Southwest, Inc. v. Moran, 322 Ark. 808, 912 S.W.2d 8 (1995); American Health Care Providers, Inc. v. O’Brien, 318 Ark. 438, 886 S.W.2d 588 (1994); Quinn Cos. v. Herring Marathon Group, Inc., 299 Ark. 431, 773 S.W.2d 94 (1989); Aetna Casualty & Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1983)). 23. What are the requirements for a prima facie case of bad faith under Arkansas law? A liability insurance carrier can be held accountable in tort for failure to settle a claim within the policy limits. A claim based on the tort of bad faith must include affirmative misconduct by the insurance carrier, without a good faith defense; the misconduct must
be dishonest, malicious, or oppressive, and in an attempt to avoid its liability under the insurance policy. Such a claim cannot be based upon a good faith denial, offers to compromise a claim or for other honest errors of judgment by the insurer. Neither can this type of claim be based upon mere negligence or bad judgment, so long as the insurer is acting in good faith. In an action for bad faith, actual malice is that state of mind under which a person’s conduct is characterized by hatred, ill will or a spirit of revenge. Actual malice may be inferred from conduct and surrounding circumstances. Am. Health Care Providers v. O’Brien, 318 Ark. 438, 441-42, 886 S.W.2d 588, 590 (1994). Conclusion Though distinct from other areas of the law, underinsured and uninsured motorist coverage law in Arkansas is understandable and fairly well developed. A review of the applicable policy, coupled with the applicable statutory and case law should provide guidance to both attorneys and carriers as to what coverages are applicable and in what circumstances.
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Fastcase Fast Facts By Cathy Underwood In the last column, we talked about the difference between searching and browsing, and how to choose specific jurisdictions. (Remember that when you first enter Fastcase, “Current Sources” is set to the Entire Database.) But most of us are usually interested in only certain jurisdictions. For instance, as Arkansas attorneys, we are generally interested in Arkansas cases and statutes, and maybe Eighth Circuit or U.S. Supreme Court cases. For convenience, we would like that always to be the selected scope in the opening screen of Fastcase; we want it to be our “default scope.” To set a default scope requires three simple steps: (1) select the jurisdictions; (2) save it; and (3) set as default. In Fastcase, click on “Jurisdictions and Sources” to the right of the search bar. (Remember you can also get there by clicking on the cog on the far right, and then choosing “Jurisdiction and Sources.”) Here’s what your screen looks like:
Notice that on the right side, all the primary and secondary law is listed. Here you can drill down to the jurisdictions you want, and click in the boxes to add them to your search. Or, on the left side of the screen, click on “Ark.” to limit your options to a more relevant list. (Note that sometimes there is a delay of just a few seconds. At first, this led me to think it wasn’t working, so be patient!) Now, your screen looks like this:
Now the options for Arkansas and Eighth Circuit are all open on your screen, ready to be clicked. Click on each item you wish to add to your search–you can mix and match them however you like. Note that if you want to add U.S. Supreme Court cases, you will have to go back to the left side, click “U.S.,” then select that option on the right. Now that you’ve selected your sources, the next step is to save the selection. The easiest way to do this is before you leave the “Jurisdiction and Sources” screen. Notice near the top to the right of “Current Sources” there is an x and then a star. Hover over the star and a popup appears that says “Save Source.” Click once to save the source, then click again immediately to save as your default search. Note - If you hesitate too long before your second click in this process, you lose the ability to save as default this way. No worries! Click on the cog to the right of the search bar to get to “Advanced Search Options.” Choose the tab that says “Saved Sources.” This lists every source you have ever saved. Find the one you want, and hover your mouse on the right side of it. Options will pop up to “Apply to Search,” “Set as Default,” or “Delete this Source.” Click on “Set as Default,” and you’re done! The next time you come back to Fastcase, “Current Sources” will show your personal default selection. Cathy Underwood has provided editing services to ArkBar for over 35 years, and provides training to its members on Fastcase and ArkBar Join the Fastcase User Forum in the ACE Community Docs. 36
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RICHARD MAYS LAW FIRM, PLLC Richard H. Mays, formerly of Williams & Anderson PLLC, has relocated his office to 2226 Cottondale Lane, Little Rock (adjacent to the Arkansas Bar Center), and will continue his practice with emphasis on: • • • • • •
Environmental Law Oil, gas and natural resources law Eminent domain Flooding and Levees General litigation Real Estate and Business transactions
Richard Mays represents individuals, citizens groups and environmental organizations in cases against governmental agencies, such as the U.S. Army Corps of Engineers and the Federal Highway Administration, and companies such as electrical utilities, oil and gas production companies, and national pipeline companies regarding private and public-works projects harmful to landowners and the environment of Arkansas.
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THE CURRENT CASE LAW ON ARKANSAS CUSTODIAL RELOCATION By Kyle Ward and Larry J. Thompson
Summary In November 2018, the court in Raymond v. Kuhns ruled on a custodial relocation case involving joint custody between two parents.1 The court may have overturned years of established Arkansas case law on custodial relocation. This article will give a brief background on Arkansas custodial relocation, how sole and joint custody cases differ, and why there is conflicting law that could cause major issues for Arkansas lawyers. Why is Custodial Relocation Important? Custodial relocation is a complicated issue in Arkansas. The right to travel and relocate between states is a fundamental right dating back to the Articles of Confederation.2 However, the parent’s right to relocate must be balanced with the best interest of the child.3 When addressing the best interest of the child, Arkansas courts have considered moral fitness, stability, love and affection, and family relationships.4 The court’s main objective in resolving child custody disputes is to achieve the best interest of the child.5
Ward
Thompson
Kyle Ward is a law clerk at Matthews, Campbell, Rhoads, McClure & Thompson, P.A. in Rogers. Larry J. Thompson is an attorney in the firm who specializes in family law, mediation and arbitration. 38
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Sole Custody Complicated sole custody relocation cases involve a primary custodial parent moving to another state with the child. The burden of proof in Arkansas custody relocation cases has shifted over time. The court in Staab v. Hurst addressed whether geographical distance effectively denied visitation to the non-custodial parent. The case concluded that the custodial parent has the burden of demonstrating some real advantage will result to the new family unit from the move.6 The primary parent needs to prove that this relocation is
in the child’s best interest and will benefit the family long term.7 In order to determine why the relocation is in the best interest of the child, the court created a five-part test: “(1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non-custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial parent’s motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent.”8 In Hickmon v. Hickmon, the court used the Staab factors for custody relocation. Here, the custodial mother could only prove the move was advantageous to herself.9 The mother argued that the move was in the best interest of her daughter, she had other children who got along with her daughter, and her new position allowed more time to spend with her daughter.10 However, these claims were not strong enough to overcome the experts’ opinions that this move would not be in her daughter’s best interest.11 The Hollandsworth Presumption However, the reasoning in Hollandsworth v. Knyzewski caused a major shift in this area of law because it essentially overturned cases that came before it. Hollandsworth shifted the burden of proof to the non-custodial parent, making that parent responsible for showing the move was not in the best interest of the child.12 The Hollandsworth presumption allows the trier of fact to assume that relocation is not a material change in circumstances and that the custodial parent has the right to move with the child.13 This is a direct change from Staab where the burden was on the custodial parent to justify an out-of-state relocation.14 The custodial parent no longer needs to prove a “real advantage” to himself or the child.15 However, the court will consider the following nondeterminative factors for the best interest of
the child: “(1) [the] reason for relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (3) [the] visitation and communication schedule for the non-custodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; and (5) [the] preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference.”16 Then came Stills v. Stills. This case is unique because it dealt with a provision in the divorce decree that attempted to waive the Hollandsworth presumption. The divorce decree required the children to stay in northwest Arkansas until majority and the wife voluntarily waived her Hollandsworth rights.17 Therefore, the wife had the burden to prove that relocating was in the best interest of her children.18 The court found that the waiver was unenforceable because the presumption is not a “right” that may be claimed, waived or altered by one party or another, even through mutual agreement.19 The court further “found that she had legitimate employment-related reasons for relocating; and that she was not relocating for purposes of diminishing the father’s involvement with the children.”20 However, was this the correct analysis of prior case law? Unlike the court’s ruling in Stills, fundamental rights are subject to a waiver.21 In his dissent, Justice Brown makes a strong argument that the parties in Stills referred to the burden of proof and not the determination of the best interest of the child.22 This waiver “did not change that ultimate determination; it simply shifted the burden of proof from [the ex-husband] to [the exwife], a concession [the ex-wife] very likely made so that [the ex-husband] would not fight for primary custody of the children.”23 This was a simple agreement by both parties that the ex-wife would have to prove her case for relocation. The majority may have incorrectly concluded that the Hollandsworth presumption cannot be expressly waived. Joint Custody The courts have applied a different line of reasoning in joint custody cases. Unlike sole custody, the Hollandsworth presumption
does not apply to joint custody because both parents share equal time; there is not one parent-child relationship that takes preference over the other.24 Singletary Analysis Instead of Hollandsworth, Arkansas courts apply the reasoning from Singletary. The court in Singletary ruled that relocation is considered a factor in the material change of circumstances analysis and the burden does not fall solely on the non-primary parent.25 In a change of custody request, courts will first determine whether a material change in circumstances has occurred and then determine if the relocation is in the best interest of the child.26 Cooperation is also at the core of joint custody relocation cases.27 If cooperation is disrupted by one of the parents, this could be grounds for a material change of circumstances.28 After this case, the courts started weighing the reasons for relocation and clarifying how the Hollandsworth presumption was related to joint custody. The court in Cooper v. Kalkwarf clarified the division of time between parents in a joint custody situation. The court realized that a true “50/50” division of time by each parent is not precise in joint custody arrangements and limited the Hollandsworth presumption to situations where the child spends significantly less time with the alternate parent.29 For example, a “60/40” division of time may still require a joint custody analysis under Singletary as long as the child does not spend significantly less time with one parent. Was the Hollandsworth Presumption Incorrectly Applied? Recently, the decision from Raymond v. Kuhns has muddled Arkansas custody relocation law. Here, the parents shared joint legal custody and the wife with primary physical custody wished to move from Arkansas to Kentucky.30 The husband conceded that this was a material change in circumstances but disputed whether this was in the best interest of the children.31 He claimed that the Hollandsworth presumption did not apply to joint custody cases and that the court should view the evidence in a manner more favorable to him.32 However, the court ruled for the wife because the best interest factors from the Hollandsworth presumption still
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apply in joint custody cases.33 The wife established the Hollandsworth best-interest factors and spent a lot of time with her children in order to qualify for this relocation.34 However, does this ruling overturn the Hollandsworth presumption and will Arkansas courts apply the rule incorrectly? The court in Raymond stated that while the presumption does not apply to joint custody, the best interest factors are relevant considerations.35 It could be argued that the court in Raymond misunderstood how the presumption works because the entire presumption is built upon the factors in Hollandsworth. Essentially, the presumption in favor of the custodial parent is intertwined with relocation factors for only sole custody cases. This court has incorporated the presumption in joint custody cases by applying the factors without the presumption. This is conflicting and could be problematic for future rulings. Additionally, what happens in counties where the visitation schedules are essentially a “60/40” split for both joint and sole custody? In Benton and Washington County, the visitation schedule for joint and sole custody parents is a “64/36” split which is reasonably close to a “60/40” split. Since the court in Raymond stated that the Hollandsworth factors and not the Hollandsworth presumption are applied in joint custody cases with essentially a “60/40” split, this decision could also influence sole custody cases with a “60/40” split.36 In counties like Benton and Washington with a “60/40” split, the court in Raymond may have eradicated the Hollandsworth presumption. Now, the custodial parent may have to prove that it is in the best interest of the child to relocate instead of the non-custodial parent rebutting the presumption in favor of the relocation. Assuming the above analysis is correct, courts may continue to use the flawed reasoning in Raymond causing major contradictions in the law. It will be hard to predict how courts will rule in the future because not many cases have dealt with custody relocation since the Raymond case. Conclusion: How Will Arkansas Courts Rule in Future Cases? It will be important for future courts to clearly define this law to avoid conflicting opinions. Arkansas custody relocation cases should require different standards and analyses for sole and joint custody. However, it is 40
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now unclear in sole custody situations if the Hollandsworth presumption favors the custodial parent. Similarly, joint custody law is just as complicated. While the Singletary analysis eliminates the burden of the Hollandsworth presumption, the court in Raymond ruled that the Hollandsworth best interest factors still apply for relocation, allowing for potential conflicts in sole and joint custody situations.37 As an Arkansas family lawyer, it is important to note that there are nuances in this body of law that could cause major problems in future custody cases. Today, the courts should implement a case-by-case analysis on the standard for joint and sole custody issues. Endnotes 1. Raymond v. Kuhns, 2018 Ark. App. 567, at 1, 566 S.W.3d 142, 143. 2. Saenz v. Roe, 526 U.S. 489, 501 (1999). 3. Hollandsworth v. Knyzewski, 353 Ark. 470, 486, 109 S.W.3d 653, 664 (2003). 4. Singletary v. Singletary, 2013 Ark. 506, at 12, 431 S.W.3d 234, 242. 5. Staab v. Hurst, 44 Ark. App. 128, 133, 868 S.W.2d 517, 519 (1994). 6. Id. at 134, 868 S.W.2d at 520. 7. Id. at 135, 868 S.W.2d at 520 (holding that the opportunity for the custodial parent to achieve a better lifestyle should not be forfeited solely to maintain visitation when there is the possibility for a reasonable alternative to the existing visitation schedule for the non-custodial parent). 8. Id. at 134, 868 S.W.2d at 520. 9. Hickmon v. Hickmon, 70 Ark. App. 438, 438, 19 S.W.3d 624, 629 (2000). 10. Id. 11. Id. at 438, 19 S.W.3d at 630. 12. Hollandsworth, 353 Ark. at 485, 109 S.W.3d at 663. 13. Id. at 484-85, 109 S.W.3d at 663; Tidwell v. Rosenbaum, 2018 Ark. App. 167, at 7, 545 S.W.3d 228, 232 (holding that “the Hollandsworth presumption should be applied only when the parent seeking to relocate is not just labeled the ‘primary’ custodian in the divorce decree but also spends significantly more time with the child than the other parent”). 14. Staab, 44 Ark. App. at 134, 868 S.W.2d at 520. 15. Hollandsworth, 353 Ark. at 484, 109 S.W.3d at 663. 16. Id. at 485, S.W.3d at 663-64. 17. Stills v. Stills, 2010 Ark. 132, at 2-3, 361
S.W.3d 823, 825. 18. Id. 19. Id. at 9, 361 S.W.3d at 829; Acre v. Tullis, 2017 Ark. App. 249, at 6, 520 S.W.3d 316, 321 (holding that parents cannot agree to waive or alter the Hollandsworth presumption). 20. Stills, 2010 Ark. 132, at 14, 361 S.W.3d at 831. 21. Eubanks v. Humphrey, 334 Ark. 21, 28, 972 S.W.2d 234, 237 (1998); Rownak v. Rownak, 103 Ark. App. 258, 262, 288 S.W.3d 672, 675 (2008) (citing Am. Ins. v. Austin, 178 Ark. 566, 11 S.W.2d 475 (1928)) (holding that there is “the long-held right allowing parties to make their own contract and to fix its terms and conditions, which will be upheld unless illegal or in violation of public policy”). 22. Stills, 2010 Ark. 132, at 20, 361 S.W.3d at 834. 23. Jarica L. Hudspeth, Case Note, Stills v. Stills: A Perplexing Response to the Effect of Relocation on Child Custody, 64 Ark. L. Rev. 781, 794 (2011). 24. Tidwell, 2018 Ark. App. 167, at 6-7, 545 S.W.3d 228, 232. 25. Singletary, 2013 Ark. 506, at 12, 431 S.W.3d 234, 241-42; Raymond v. Kuhns, 2018 Ark. App. 567, at 10, 566 S.W.3d 142, 147 (holding that the Hollandsworth presumption does not apply but the best interest factors can be relevant considerations in joint custody cases). 26. Singletary, 2013 Ark. 506, at 9, 431 S.W.3d at 240. 27. Lewellyn v. Lewellyn, 351 Ark. 346, 356, 93 S.W.3d 681, 687 (2002). 28. Id. 29. Cooper v. Kalkwarf, 2017 Ark. 331, at 16, 532 S.W.3d 58, 67. 30. Raymond v. Kuhns, 2018 Ark. App. 567, at 1, 566 S.W.3d 142, 143. 31. Id. at 4, 566 S.W.3d at 144. 32. Id. at 10, 566 S.W.3d at 148. 33. Id. 34. Id. 35. Id. 36. Id. at 10, 566 S.W.3d at 147. 37. Singletary, 2013 Ark. 506, at 12, 431 S.W.3d at 241-42; Raymond, 2018 Ark. App. 567, at 10, 566 S.W.3d at 147.
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Law School Updates
UA Little Rock
University of Arkansas
William H. Bowen School of Law
School of Law
Dean Beiner
The Bowen Law School community hopes you and your loved ones are safe and healthy. While our building is quiet, Bowen students, faculty, and staff remain busy. Our students and professors have migrated to online learning environments and, like many of you, our staff has transitioned to working from home. During these difficult times, we’re focusing less on what we don’t have and more on what we do. Three new professors will be joining Bowen in the fall. Professor Aaron Schwabach joins us to teach the classes previously taught by Professor Lynn Foster, who retired from Bowen in January after 33 years of service. Professor Christopher Trudeau will teach Research, Writing & Advocacy, filling a vacancy created by professors’ departures and retirement. Finally, Rebecca Feldmann will be the inaugural director of our Veterans Legal Services Clinic and Veterans Pro Bono Services Center. We also have welcomed a new Assistant Dean for Admissions and Enrollment Management, Eruore Oboh. Three members of our faculty have been recognized for their excellence in teaching, scholarship and service. Associate Dean and Professor Terrence Cain has been honored for his teaching. Professor Cain is known for his high professional standards, which he imposes rigorously on students in his classroom. His students say he has shown them “what can be accomplished by taking a professional, detailed, and fearless approach to each aspect of our education.” Bowen has recognized Professor Nicholas Kahn-Fogel for his research and creative endeavors. Over the last five years, Professor Kahn-Fogel has co-authored a legal textbook on Torts and five of his articles have been accepted for publication in highly-regarded scholarly law journals. His legal scholarship pertaining to Africa has been recognized internationally. Professor Anastasia Boles received the faculty excellence award in public service. Professor Boles devotes her time, her skills, and her academic research to bringing attention to the important issues of racial disparity, cultural competency, and implicit bias. She shares this expertise on the local, state, and national level. We also have some incredible alumni. We are proud of December 2019 graduate Janelle Lilley Cline, who earned the top score on the February Arkansas Bar Exam. We were pleased to welcome home 1986 graduate Wiley Cavin, who returned to take a tour of the campus and donate $269,000, which will create the Wylie D. Cavin III Endowed Scholarship for Bowen students. Our Dean’s Conference Room has been named in his honor. Finally, many of our alumni have stepped forward during the last few months to help students, either through continuing summer clerkships or by making donations to alleviate the burden on students with financial needs. We thank you for your support.
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Dean McCabe
When I was first planning this article, I was thinking that when this issue hit your mailbox we would be absorbed in graduation planning, events and recovery. Instead, we are absorbed in learning how to do all of our work—teaching, testing, helping students find jobs and prepare for the bar exam and graduating the Class of 2020—remotely. We are all adapting to these unusual practices, and I have been reminded repeatedly of the innovation, compassion, resilience and dedication of our students, faculty, staff and alumni. The week our courses were moved off campus, a student’s Tweet about his first online class went viral. The student was so entertained and inspired by his professor’s first remote lecture that he posted part of it to social media. As of this writing, the video has been viewed more than 903,000 times. A week later, our students who had planned to join Legal Aid of Arkansas for their annual Spring Break on the Road to Justice project moved their pro bono activities online. While they were unable to look their clients in the eye and reassure them in person, they were still able to provide intensive services to low-income Arkansans in remote and underserved areas. Students have also partnered with the Center for Arkansas Legal Services to help the agency develop a strategy to assist with evictions and foreclosures resulting from the consequences of coronavirus. The following week brought more change when one of our competition teams had to pivot from in-person transactional negotiations to online. They were clearly able to acclimate, as evidenced by taking first place in the 2020 Transactional LawMeet for their side of the negotiation. Our students are doing their best in an unprecedented situation, and I am proud of their hard work and sacrifice—particularly the Class of 2020, who did not get their traditional graduate awards ceremony, family reception and commencement ceremony. We typically take a photo of each incoming class at their 1L orientation and then take a similar one on the eve of their graduation. I have included their 1L photo in this update as a tribute to how far they have come and all they have accomplished.
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2019-2020
Sustaining Contributors Benefactors 2019-2020 Mark H. Allison Thomas M. Carpenter Suzanne G. Clark Ralph M. Cloar Steven A. Cosse Steven B. Davis Justice Robert H. Dudley Jack East III Bob Estes Brent J. Eubanks John F. Gibson, Jr. Judge Donald Goodner
Patrons
Benefactors are members who make a sustaining contribution of $250/year in addition to membership dues to support Association programs.
Judge David F. Guthrie David Michael Hargis R. Victor Harper Joseph Hickey Denise Reid Hoggard Donald T. Jack, Jr. Paul W. Keith William H. Kennedy III Charles Knox Lincoln II Michael R. Mayton Jerald Cliff McKinney II Brandon K. Moffitt
Margaret Woodward Molleston Timothy J. Myers Debby Thetford Nye William L. Owen William Lance Owens William L. Patton, Jr. John V. Phelps Joseph H. Purvis Richard L. Ramsay Brian M. Rosenthal Judge John R. Scott Scotty M. Shively
Ted C. Skokos James W. Smith James D. Sprott Mary Beth Sudduth W. H. Taylor Greg A. Thurman William A. Waddell, Jr. Danyelle J. Walker Eddie H. Walker, Jr. David J. Whitaker Tom D. Womack Susan Webber Wright
2019-2020
Patrons are members who make a sustaining contribution of $100/year in addition to membership dues to support Association programs.
Elizabeth Ann Andreoli Ben F. Arnold Barry D. Barber Melody Peacock Barnett James Paul Beachboard Roy T. Beard III David L. Beatty Kandice A. Bell Paul B. Benham III Michael Stephen Bingham Allen W. Bird II Judge Samuel N. Bird Charles Tad Bohannon Senator Will Bond Ted Boswell Eugene D. Bramblett Robert Bruce Branch, Sr. Silas H. Brewer, Jr.
Fred E. Briner Bill W. Bristow Larry W. Burks Paul Byrd Robert D. Cabe Worth Camp, Jr. Donald K. Campbell III Earl Buddy Chadick H. Murray Claycomb Roger U. Colbert Charles T. Coleman Randy Coleman Jon B. Comstock Nate Coulter Judge James O. Cox Michael A. Crockett J.B. Cross, Jr. James E. Crouch
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Tim J. Cullen F. Thomas “Tom� Curry Thomas A. Daily Judge Robert T. Dawson Judge Beth M. Deere Terry Dugger Warren E. Dupwe Don A. Eilbott Byron M. Eiseman, Jr. Laura K. Ferner Lyle D. Foster Matthew L. Fryar Price C. Gardner Buck C. Gibson Charles Clifford Gibson III Pamela B. Gibson Sam E. Gibson Greg R. Giles
John P. Gill Dent Gitchel Morton Gitelman Ronald L. Griggs Justice (Ret.) James H. Gunter, Jr. Judge Barbara A. Halsey Don F. Hamilton Frank S. Hamlin Alexandra K. Harper Charles L. Harwell Richard F. Hatfield Rosanna Henry Paul F. Henson Anthony A. Hilliard Glen Hoggard Cyril Hollingsworth Don Hollingsworth Robert Howard Hopkins, Sr.
Thank You for Your Support Patrons (cont.) 2019-2020 Frank Huckaba Karen K. Hutchins James W. Hyden Judge Michael E. Irwin Donald T. Jack, Jr. Lawrence W. Jackson Randolph C. Jackson Judith M. Johnson Robert S. Jones Jim Julian Philip E. Kaplan Sean T. Keith Donald H. Kidd Judge Milam Michael Kinard Joseph F. Kolb Peter G. Kumpe Howard Baker Kurrus Michelle Y. Leding John Charles Lessel Stark Ligon Judge John R. Lineberger Stephen A. Lisle Steven M. Lowry Gabriel D. Mallard
Richard Bryant Marshall Stewart D. Matthews Michael S. McCrary Bobby McDaniel Becky A. McHughes Josh E. McHughes James “Jim” A. McLarty III James E. McMenis Anthony L. McMullen Philip Miron Judge Chalk S. Mitchell Michael W. Mitchell Harry Truman Moore Henry Clay Moore Wm. Kirby Mouser Sheffield Nelson Judge William David Newbern Frank B. Newell Stephen B. Niswanger Edward T. Oglesby Judge James E. O’Hern III Brant Perkins Donald C. Pullen Brian H. Ratcliff
Gordon S. Rather, Jr. Robert Jeffrey Reynerson Judge Curtis E. Rickard William B. Roberts William S. Robinson Charles D. Roscopf John L. Rush Don M. Schnipper Stephen M. Sharum Justice Ronald L. Sheffield Shaneen K. Sloan Don Allen Smith Michael W. Spades, Jr. O. C. “Rusty” Sparks Aaron L. Squyres Jean D. Stockburger James H. Swindle David S. Taylor Judge Cindy Thyer Justice Annabelle Imber Tuck Richard Edwin Ulmer James R. Van Dover Judge Rice VanAusdall Glenn Vasser
Vicki S. Vasser-Jenkins Judge Bill H. Walmsley Judge John C. Ward Lt. Col. Stan L. Warrick John Dewey Watson Timothy Fagan Watson, Sr. Judge Gordon Webb J. Adam Wells Edd N. Williams, Jr. Carolyn B. Witherspoon Marsha C. Woodruff Ronald G. Woodruff Andrea Grimes Woods Daniel Yates Steven S. Zega Audra Katharine Zemma Dennis M Zolper
Become a Benefactor or Patron Member Your gift strengthens the Association by helping to support its mission and many projects. You will receive: • recognition as individual sponsors in The Arkansas Lawyer magazine • a specialty ribbon for your name badge at the Annual Meeting • recognition at the Annual and Mid-Year Meetings Show your support when you renew your membership by adding a sustaining contribution on your membership form for the 2020-2021 Bar Year that begins July 1, 2020. For questions, contact Michele Glasgow at 501-801-5661 or mglasgow@arkbar.com. Vol. 55 No. 2/Spring 2020 The Arkansas Lawyer
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Self Awareness Helps Deal with Trauma By Jennifer Donaldson, LCSW, Executive Director, AR JLAP
Trauma. This word may bring several things to mind: war, fire, vehicular accident, natural catastrophe, terrorism.… Most may not identify a pandemic–much less the COVID-19 Pandemic we are facing. While our focus is appropriately locked in on treatment, prevention and containment, a sleeping giant is slowly beginning to awaken: T-R-A-U-M-A. Trauma is the response to an event(s) that causes mental and/or emotional distress resulting from a threat to one’s safety. As individuals, our trauma responses and thresholds for distress vary significantly, as do our subjective experiences of the everevolving world around us. While one person may experience a traumatic event and appear to be responding adaptively, another may experience the same event with overwhelming distress that triggers unhealthy cognitive, emotional, or behavioral responses. The intensity of a traumatic experience combined with our biologically-hardwired responses to stress determine where we fall on the spectrum. However, there is one common thread to trauma: it does not sleep forever. As a clinician, one of the most-asked questions in session is “What do I do now?” This usually follows an enlightened moment where one recognizes a crossroad and has a desire to adapt and thrive. The same question seems applicable day-to-day and, at times, moment-to-moment, as the pandemic continues with no clear end in sight. So, what is the answer? And how do we know what is the RIGHT answer? While the clinical response would be a rhetorical question to elicit further critical thinking and self-exploration, there are guiding principles to assist in answering this question, as often as it presents itself; believe me, when dealing with trauma, this question will present itself time and time again! Of these principles, the most important is the practice of self-awareness. Recognizing 46
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and understanding our own desires, drives, needs, morals, values, emotions, thought patterns, and behavioral responses aids us in developing a strong sense of self. To put it in simpler terms, the more I know about myself, the more power I have to manage myself. Looking from the perspective of trauma response, self-awareness is a tool that allows individuals to recognize and identify traumatic experiences while exploring the internal and external impacts on their life. As denial and shock begin to slowly lift, we are neurologically and physiologically in a position to begin self-exploration. While self-awareness is a universal practice, further exploration of trauma is recommended under the appropriate supervision of a mental health professional. It is important to note, the sole experience of a traumatic event does not automatically impose mental illness, nor does it warrant a diagnosis of PTSD, etc. Highlighting trauma is beneficial, as we all have traumatic experiences individually, and now, in this current time, collectively. Raising our level of self-awareness better equips us to respond to the impacts of trauma in a healthy, informed, safe manner, thus strengthening our families and communities. Another important principle in the search to answer, “What do I do now?” is Resourcefulness. While this may sound elementary and unrelated, it is tied closely to self-awareness. When self-reflecting, identifying available and unavailable resources will assist in prioritizing and meeting individual needs. As physical and social distancing persists with our normal business, community, and social routines disrupted, discovering valuable resources is key to maintaining an overall sense of safety and normalcy. Finding connection and security promotes the ability to return to baseline in our cognitive and emotional responses, despite the current crisis. While we cannot “undo” our hardwired
responses, i.e. fight, flight, or freeze, we can proactively connect our own needs with healthy resources and find balance based on personal insights. While the months ahead remain uncertain, with heightened awareness and stable connection comes the ability to prepare and adapt as events unfold. This positions us to proactively engage in an evolving environment. We may not have the perfect answer to every “What do I do now?” but we will have the right tools for the search. For instance, when caring for a baby for any length of time, most can attest to the importance of two things during nap time: your own rest and/or completing essential tasks. Knowing when to do which is equally important. For as the child awakens, his or her need for attention outweighs all! This collective trauma experience and its impacts are not fully awake, and self-preparation is still possible on many levels. However, timing is everything; the longer we allow trauma to lie dormant, the more challenging our journey to baseline will be. Arkansas JLAP staff, the JLAP Committee, the JLAP Foundation Directors, and JLAP volunteers, with the support of the Arkansas Supreme Court, are committed to providing assistance during the current crisis and times ahead. Acknowledging the presence of trauma and exploring the degree of impact in our own reality are beneficial tools for self-help; however, further assistance is available. In an effort to support the members of the Arkansas legal community, JLAP continues to offer individual mental health therapy, specialty mental health contract services, referral and resource connection, and community support and outreach with schools, firms, and organizations. JLAP is pleased to provide assistance and connection; please do not hesitate to reach out. For more information, please visit arjlap.org.
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Disciplinary Actions JUDICIAL DISCIPLINE & DISABILITY COMMISSION ACTIONS On March 26, 2020, the Arkansas Judicial Discipline and Disability Commission issued a “JDCC Executive Director Statement to the Arkansas Judiciary.” The full press releases can be found online at http://w w w.state.ar.us/jddc/decisions. html.
ATTORNEY DISCIPLINE ACTIONS Final actions from January 1, 2020 – March 31, 2020, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available online either at http:// www.arcourts.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.] SURRENDER: Keeter, Bobby K., of Mena, Arkansas, Bar No. 77076, in Supreme Court case No. D-20-138, surrendered his law license effective April 1, 2020. The surrender was accepted by the Arkansas Supreme Court by Formal Order issued March 19, 2020. In Committee case No. CPC 2019-026, Keeter was found to have violated Arkansas Rules of Professional Conduct 1.1, 1.3, 1.4(a)(3), 1.4(a)(4), 8.1 and 8.4(d), and § 9.C(1) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (Procedures) by failing to file a response to the Complaint, for which he was assessed a separate Reprimand. The Committee suspended Keeter for a period of three months. Keeter then petitioned the Committee for surrender of his license which was approved by the Committee and filed with the Court. In 2011, Keeter was hired by Diane
State Board or DEA Licensure Issues? Call Pharmacist/Attorney Darren O’Quinn
800-455-0581 www.DarrenOQuinn.com Representing: Doctors Pharmacists Nurses Healthcare Providers The Law Offices of Darren O’Quinn 36 Rahling Circle, Suite 4 Little Rock, Arkansas 72223 Huffman regarding opening an estate of her deceased grandmother. Ms. Huffman paid Keeter for a title search of the property. Keeter then opened the probate administration. Ms. Huffman had opened a probate case for her deceased father in Iowa, and Keeter opened an Arkansas ancillary probate for her father. Ms. Huffman was administrator in both probate matters. Ms. Huffman paid Keeter each time a billing statement was sent to her. After not hearing from Keeter for some time, Ms. Huffman wrote the judge a letter requesting assistance in contacting Keeter. The judge forwarded the letter and a directive to Keeter to contact Ms. Huffman, which Keeter failed to do. Ms. Huffman filed a grievance against Keeter with the OPC, which sent Keeter a copy of Huffman’s grievance, requesting information and an informal response to the allegations. No response was received. Keeter failed to respond to several other attempts by OPC to obtain information from him. Keeter was served with the Formal Complaint but failed to respond.
Satterfield, Guy Randolph “Randy,” of Little Rock, Bar No. 81140, through Committee case No. CPC 2019-044, petitioned the Supreme Court for the surrender of his law license in lieu of disciplinary proceedings. On January 23, 2020, in No. D-19989, the Court accepted his petition and removed him as an attorney. Satterfield’s surrender arose from his handling of two probate cases. In one case, Satterfield placed approximately $97,000 belonging to the estate into his trust account and then depleted the funds over a period of time until his trust account showed a balance of $11.30. None of the money removed from the trust account was used for the benefit of the estate. In the second case, Satterfield received funds for an estate and placed those funds into his trust account. Other than two withdrawals from the account for the benefit of the estate, the remainder of the funds were depleted. Satterfield did provide money to the beneficiaries of that estate from a separate source of funds. Satterfield violated Arkansas Rules 1.15(a), 8.4(b) and 8.4(c).
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SUSPENSION: McCallister, Bobby D., of Benton, Bar No. 91103, served as a circuit court judge in Saline County from 2009 through 2017. Prior to becoming a judge and during his time as a judge, McCallister failed to file state income-tax returns, a felony under Ark. Code Ann. § 26-18-202. McCallister entered a no-contest plea on one count of failure to file a tax return and resigned from office. A disbarment action was filed with the Supreme Court. Following trial, the Special Judge found McCallister violated Rules 8.4(b), 8.4(c), and 8.4(d), that McCallister’s action involved Serious Misconduct, and recommended that McCallister’s law license be suspended for nine months. The Court found that some of McCallister’s conduct occurred while he served as a sitting circuit court judge and that judges must be held to a higher standard. The Court found that McCallister did not profit from failing to file, that his misconduct did not relate to the practice of law, and, as he had no clients, none were affected. The Court adopted the findings of the Special Judge and imposed a nine-month suspension on February 20, 2020. 50
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Oliver, Charles Dwain, of Hampton, Arkansas, Bar No. 2001009, in Committee Case No. CPC 2018-003, was suspended for a period of 60 months for violations of Arkansas Rules 1.1, 1.16(a), 3.1, 3.3(a) (1), 3.3(a)(3), 3.4(a), 3.4(c), 3.7(a), 8.4(a), 8.4(c), and 8.4(d). Oliver also violated § 9.C(1) of the Procedures, and was issued a separate reprimand for failure to file a response to the Complaint. Oliver drafted three successive Wills for Jimmie Sue Roark. The 2015 Will named two of her daughters, Cindy and Cecilia, as coexecutrices, leaving real estate, retirement, and money assets to her four children and grandchildren. She appointed Oliver to probate her will. The Will executed November 1, 2016, removed daughter Cindy as co-executrix, and made changes in the amounts and distribution of assets of the estate. The last Will, executed November 10, 2016, with daughter Cindy present, made additional changes to the distribution of assets of the estate. Roark died January 1, 2017. Cindy hired attorney Michael Stuart to represent her. Stuart contacted Oliver by letter advising Stuart had the third Will, executed on November 10, 2016, in his possession.
Stuart also suggested that Oliver start the probate proceedings as soon as possible, as Oliver was appointed in the Will to probate the Will. Oliver opened probate administration, but offered only the second Will, which the court admitted while also naming daughter Cecilia as sole executrix. Cindy moved to set aside the order, attaching a copy of the third Roark Will, and filed a Contest of Will Petition. Cindy alleged in her petition that Oliver was put on notice by Stuart that they had possession of the final Will and that Oliver still presented the prior November 1 Will for probate. The petition alleged that Oliver made false representations to the court and failed to list or give notification of the probate of the estate to all heirs included in the Will. Cindy also sought the appointment of an independent estate administrator and estate probate attorney. At the hearing, Oliver appeared on behalf of Executrix Cecilia and the Estate and Stuart appeared on behalf of the other three sisters. Oliver alleged that at the time he drafted the November 10 Will Roark “was not herself,” and he filed the November 1 Will because “that is the way she [Roark] wanted it.” Oliver explained to the court that Roark came to his office with her daughter Cindy and asked him to make changes to the November 1 Will. According to Oliver, after making the changes to the Will, he looked up at Roark and asked her if she was okay with the changes. Roark looked over at Cindy and nodded her head yes. The court questioned Oliver about Roark’s mental state at the time the second will was drafted. The court also questioned Oliver about why he filed the second will after being put on notice by Stuart that he had the third will. The court found: (a) Oliver failed to give notice to the beneficiaries or Stuart Law Firm of the probate of the November 1 Will; (b) Oliver failed to notify the court of the November 10 Will, which revoked the November 1 Will; (c) Cecilia failed to file any objections to the Contest, Motion to Set Aside the Order; and (d) no contest of the November 10 Will had been filed pursuant to Arkansas statute. The court set aside the order appointing Cecilia as Executrix and probating the November 1 Will, and appointed an independent administrator. Oliver was also removed as attorney for the estate. The court then referred Oliver to the Office of Professional Conduct. Oliver was served with the Formal Complaint but failed to respond.
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Oliver, Charles Dwain, of Hampton, Arkansas, Bar No. 2001009, in Committee Case No. CPC 2018-007, was suspended for a period of 60 months and ordered to pay restitution for violation of Arkansas Rules 1.1, 1.3, 1.4(a)(3), 1.4(a)(4), 8.1, and 8.4(c). Oliver also violated § 9.C(1) of the Procedures by failing to file a response to the Complaint and was issued a separate reprimand. Milton Parker hired Oliver in 2010 to expunge his prior criminal records, and paid Oliver $800.00. Later, Parker made several unsuccessful attempts at contacting Oliver. Oliver obtained an Order to Seal on September 1, 2011, as to Parker’s criminal record from a conviction on May 20, 1992, in Calhoun County, Arkansas. Parker moved to Chicago, Illinois. In 2015, he and his wife desired to adopt a child and completed the necessary paperwork, which included a criminal background check, which Parker failed. Parker again unsuccessfully attempted to contact Oliver to inquire as to why his criminal records were not expunged, including making several trips to Arkansas to talk with Oliver. Oliver had managed to seal one of his criminal records in Calhoun County, but failed to include 52
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his other criminal records in Calhoun and Union Counties. After unsuccessfully attempting to contact Oliver, Parker filed a grievance with the OPC. OPC made several unsuccessful attempts, by written communication and telephone calls, at getting Oliver to respond in writing to the Parker allegations. Although Oliver made written contact to request additional time, no written response to the allegations has ever been received from Oliver. Oliver, Charles Dwain, of Hampton, Arkansas, Bar No. 2001009, in Committee Case No. CPC 2018-008, was suspended for a period of 60 months and ordered to pay restitution for violation of Arkansas Rules 1.1, 1.3, 8.1, and 8.4(c). Oliver also violated § 9.C(1) of the Procedures for failing to file a response to the Complaint and was issued a separate reprimand. Larry Romine hired Oliver to expunge the criminal record of his son Blake Romine. Oliver did not take any action or file any pleadings on behalf of Romine’s son. Oliver did not provide Romine or his son with a refund of the $350.00 paid to him. After Romine filed a grievance with OPC, OPC made several unsuccessful attempts
by written communication and telephone calls to Oliver to get Oliver to respond in writing to Romine’s allegations made against him. No written response has ever been received from Oliver. Oliver, Charles Dwain, of Hampton, Arkansas, Bar No. 2001009, in Committee Case No. CPC 2018-009, was suspended for a period of 60 months and ordered to pay restitution for violation of Arkansas Rules 1.1, 1.3, 1.4(a)(3), 1.4(a)(4), 8.1, and 8.4(c). Oliver also violated § 9.C(1) of the Procedures by failing to file a response to the Complaint and was issued a separate reprimand. Steven Harrelson hired Oliver to expunge his prior criminal record, and paid Oliver $800. Harrelson made several attempts at contacting Oliver, who when contacted made excuses for not filing the expungement petition. Oliver stopped responding to Harrelson’s attempts to contact him. Oliver did not take any action or file any pleadings on behalf of Harrelson, or provide Harrelson with a refund of the $800 fee. Harrelson filed a grievance with OPC, which made several unsuccessful attempts by written communication and telephone calls to Oliver to get Oliver to respond in writing to Harrelson’s allegations. CAUTION: Taylor, Gregory D., Bar No. 93080, of Benton, in CPC 2019-031 by Consent Findings and Order filed March 20, 2020, was Cautioned for his violations of Rules 1.4(a)(3) and 8.4(d), ordered to pay Restitution in the amount of $2,500 to James and Laura Engelhorn, and assessed Costs in the amount of $50. Mr. and Mrs. Engelhorn retained Taylor’s firm and paid Taylor a $5,000 retainer to represent them in pursuing a civil matter. Discovery responses were not timely submitted by Taylor. Taylor failed to keep Mr. and Mrs. Engelhorn informed about the case and failed to notify them that there were any issues regarding the discovery, including an Order to Compel and a $500 sanction assessed against them and payable to the opposing attorney. Taylor’s conduct led to the clients terminating his services and non-suiting the case.
Arkansas Bar Foundation Report by Ann Dixon Pyle, Executive Director, Arkansas Bar Foundation
Memorials The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period February 1, 2020, through April 30, 2020. In Memory of Mary Kay “Katie” Cloar Judge Bill Wilson and Judge Cathi Compton In Memory of George D. Ellis Rosalind and Kirby Mouser In Memory of Mary Henry Hayden and Gordon S. Rather, Jr. In Memory of John G. Lile III Nancy and Judge John N. Fogleman Hyden, Miron & Foster, PLLC Hayden and Gordon S. Rather, Jr. Brian Rosenthal In Memory of Charles Mott B. Jeffery Pence In Memory of Charles Owen Jennifer and Randy Coleman Philip Kaplan Brian Rosenthal Mike Wilson In Memory of Henry James Price Hayden and Gordon S. Rather, Jr. In Memory of James Robert Rhodes III Jennifer and Randy Coleman B. Jeffery Pence Sue and Judge John Plegge Brian Rosenthal Mike Wilson In Memory of William Sherman Judge Robert Dawson Philip Kaplan Brian Rosenthal Mike Wilson In Memory of Tom Streetman Rosalind and Kirby Mouser Brian Rosenthal
In Memory of Judge Harvey Yates Charles D. Roscopf Judge Bill Wilson and Judge Cathi Compton
Memorial Medallion
In Honor of Dr. James A. Metrailer Hayden and Gordon S. Rather, Jr. Thank you to our #GivingTuesdayNow Donors on May 5! Steve Bauman Tim Cullen Curtis Hogue Jamie Huffman Jones William (Bill) Mann John V. Phelps Hoyte Pyle Brian Rosenthal James (Jim) Sprott Judge Cindy Thyer Eddie Walker, Jr.
A new medallion will be included on the Arkansas Bar Center Memorial Wall in Memory of Michael J. Ptak. We thank the following donors for their contributions. This medallion is given by: Bank OZK Lax, Vaughan, Fortson, Rowe & Threet, P.A. Pender Law Firm, P.A. Rose Law Firm
Upcoming Events Arkansas Bar Foundation Annual Meetings (Virtual) Wednesday, June 3, 2020 1:00 p.m. Virtual Arkansas Bar Foundation Annual Membership Meeting Foundation Members: Please watch your email for video conferencing information
1:45 p.m. Virtual Foundation Board Meeting
✺ The Annual Fellows Dinner has been postponed ✺ and will be re-scheduled at a later date TBD SAVE THE DATE: Fourth Annual Arkansas Bar Foundation Friendraiser: Howlin’ Hour Wednesday, October 14, 2020 4:30 - 6:00 pm • ASU Cooper Alumni Center • Jonesboro
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in memoriam Robert Jacob (Jake) Henry Goheen died December 18, 2019, at the age of 47. He graduated cum laude with a B.A. degree from Henderson State University. He earned his law degree at the University of Arkansas at Little Rock. He practiced law in downtown Benton for many years. His favorite charity was the September Fund he helped spearhead after 9/11, which provides scholarships for the sons and daughters of first responders attending the University of Arkansas at Little Rock. He provided pro bono legal work for this endowment fund for many years. John Gardner Lile III of Little Rock died on March 30, 2020, at the age of 81. John graduated from Little Rock Central High School (1955), from Hendrix College (B.A. in 1959), and from Duke University (LL.B. in 1962). He accepted a position with the Coleman, Gantt, Ramsay, and Cox Law Firm and practiced law for 28 years in Pine Bluff, 26 of them as a partner with the Ramsay, Cox, Lile, Bridgforth, Gilbert, Harrelson & Starling Law Firm. In 1988 he joined Wright, Lindsey, and Jennings Law Firm in Little Rock. John was named a partner in the WLJ Firm January 1, 1990. He became “of Counsel” January 1, 2011, continuing to work part-time until fully retiring in March of 2015. He served as Chair of the Young Lawyers Section of the Arkansas Bar Association 1971-72, as Jefferson County Bar Association President in 1973, and on several other committees over five decades. He especially appreciated serving on the Arkansas Bar Law School Committee for several years. He chaired the Arkansas Bar Committee on Professional Ethics which prepared the current Rules of Professional Conduct. He was a Fellow in the American College of Trial Lawyers for decades, as well as a Fellow of the American Bar Foundation and the Arkansas Bar Foundation.
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Robert Franklin Morehead of Pine Bluff died March 8, 2020, at the age of 84. He attended Arkansas AM&N (now the University of Arkansas at Pine Bluff), graduating in 1961 with a Bachelor of Science degree in Business Administration. In 1970, he received his Juris Doctorate degree from the University of Arkansas School of Law. Morehead served as the first black Deputy Attorney General for the State of Arkansas. Morehead spent nearly 45 years in private practice, as he represented clients in criminal law. Charles Callis “Charlie” Owen of Little Rock died March 7, 2020, at the age of 76. Charlie graduated from the University of Arkansas at Fayetteville with an accounting degree in 1965 and earned a law degree from UA in 1968. Charlie was a Certified Public Accountant and was a tax lawyer for over 50 years. Charlie was a director and shareholder of Gill Ragon Owen, P.A. and served as President of the firm from 2000-2014. In addition to practicing law, Charlie enjoyed teaching; has written and spoken nationally on tax planning, legal ethics and wealth preservation; was recognized on multiple occasions for his excellence as a public speaker by the AR Society of CPAs; and was an eight-time recipient of the Arkansas Bar Association’s CLE Award. Charlie received the James McKenzie Professionalism Award in 2017. Michael James Ptak of Little Rock died January 24, 2020, at the age of 59. He received a degree in business from the University of Arkansas at Fayetteville, where he studied banking, finance and accounting. He earned his juris doctorate at the University of Arkansas at Little Rock School of Law. Upon
graduating in 1993, he began practicing law at Lax, Vaughn, Pender and Evans. He then opened his own practice of Pender, McCastlain & Ptak. After a time, he was offered an opportunity to join The Rose Law Firm, where he primarily practiced banking law. In 2008, he joined Bank OZK as General Counsel. There he was able to practice his two favorite disciplines— banking and law. James Robert Rhodes III of DeValls Bluff died on February 17, 2020, at the age of 79. He graduated from the University of Arkansas in 1962 with an accounting degree. He earned his juris doctorate at the University of Arkansas School of Law in 1965. He was in the Army Reserves for six years, serving as JAG captain when he resigned. He practiced law in Little Rock for 37 years with different law firms including Moses, McClellan, Arnold, Owens and McDermott and his own firm of Ward, Rhodes, Hickey, and Garrett from 1976 to 1986. He was assistant U.S. Attorney from 1968 to 1972 and retired in 2002 after serving “of counsel” with Dover and Dixon Law Firm for 16 years and one year with Darren O’Quinn. He was active in the Pulaski County Bar Association “Grid Iron” show from 1966 to 1992, playing many roles including Ed Wright, Judge Bill Kirby, Gary Hart, Fannie Fox and Jackie Kennedy. After returning to Prairie County in 2002, he served as District Court Judge for the Southern District of Prairie County from 2005 to 2017. Ramona Roe of Little Rock died April 5, 2020, at the age of 77. She was a 1960 graduate of Yellville-Summit High School. She earned a B.A. in English and journalism from the University of Arkansas at Fayetteville in 1964 and a Juris Doctorate from the UALR Law School in 1976. In law school, she wrote the top paper in five courses, served as associate editor of the law review and won numerous academic and writing awards. She worked for the Game &
in memoriam Fish Commission, taught English at North Arkansas Community College, practiced law in Rogers and Little Rock, served as Lowell City Attorney, clerked for the Chairman of the Workers’ Compensation Commission, codified acts of Arkansas at the Code Revision Commission and retired from the Bureau of Legislative Research. Brigadier General (Ret) William F. Sherman of Little Rock died March 11, 2020, at the age of 82. Bill graduated from the Tennessee Military Institute, and was awarded a BA in history from the University of Arkansas (distinguished military graduate) and an LLB from the University of Virginia. Bill had a rich and varied career as an attorney, public servant (Assistant U.S. Attorney, Arkansas Securities Commissioner, State Representative, Member of State Constitutional Convention), and as a 32-year service member of the U.S. Army Reserve and National Guard. He served as special assistant to the Judge Advocate General of the Army, holding the rank of brigadier general from 1987 until 1990. In 2017, Bill closed his law office after 53 years of practice. Bill was honored and recognized in each of his careers. In 1990, following his services as assistant to the Judge Advocate General, Bill was the recipient of the Legion of Merit award. Kenneth Ronald Smith of Yellville died March 3, 2020, at the age of 84. He was very proud to have served four years in the United States Air Force. He received his law degree from the University of Arkansas School of Law; practiced law in Marion County, Arkansas, for almost 50 years; and served as an Arkansas state representative.
Richard S. Smith of Little Rock died on February 7, 2020. Dick, as his friends knew him, went to Arkansas Tech in Russellville. Upon graduation he entered the U.S. Army and served in Vietnam commanding an Armored Cavalry troop with 3rd Squadron, 5th Calvary Regiment, 9th Infantry Division. He was awarded the Purple Heart and Bronze Star. After leaving the Army he attended the University of Arkansas Law School. He had a private practice for several years, then began a long career with the Arkansas Insurance Dept. as an Attorney Specialist from which he retired after 30 years. Marvin Dell Thaxton Sr. of Newport died April 16, 2020, at the age of 94. He graduated from Newport High School and attended the University of Arkansas. He graduated from the University of Arkansas School of Law. During World War II, he proudly served with the Merchant Marines and was stationed in Japan. His law career began in Newport where he practiced for over 50 years. During this time, he was a member of the Arkansas Board of Law Examiners and served as an Arkansas Special Supreme Court Justice. Mary Suzanne Winter of Forrest City died Thursday, March 5, 2020, at the age of 54. She lived in Forrest City most of her life. In addition to being a lawyer, she was a registered nurse. She graduated from the University of Arkansas with a Bachelors degree and Vanderbilt Law School.
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The information contained herein is provided by the members’ obituaries. Vol. 55 No. 2/Spring 2020 The Arkansas Lawyer
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