Lawyer The Arkansas
A publication of the Arkansas Bar Association
Vol. 54, No. 3, Summer 2019 online at www.arkbar.com
the Bar Bunch
Brian Rosenthal President
Meet the 2019-20 Bar Bunch
r a B k r A Now Offering
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You can now earn CLE via on-demand ArkBar is pleased to announce a lineup of over 50 new on-demand CLE seminars. More programs will be added each week. One-hour seminars you can watch anytime from any device. The Supreme Court has ruled audio, on-demand, CLE programming is an acceptable means to obtain CLE.
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 Secretary Glen Hoggard Treasurer Joseph F. Kolb Parliamentarian Aaron L. Squyres Young Lawyers Section Chair Stefan McBride 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 Brandon K. Moffitt John Rainwater Albert J. Thomas III LIAISON MEMBERS Judge Charles E. Clawson Jay Robbins Karen K. Hutchins Aaron L. Squyres Harry Truman Moore Judge John C. Throesch Richard L. Ramsay Danyelle J. Walker The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2019, Arkansas Bar Association. All rights reserved.
The Arkansas
Lawyer Vol. 54, No. 3
features 8 Crossword Puzzle By Victor Fleming
10 2019-2020 Arkansas Bar Association President Brian Rosenthal By Anna Hubbard 14 Land Rovers, Excessive Fines, and Selective Incorporation: Civil Asset Forfeiture after Timbs v. Indiana By Annie Depper and J. Blake Hendrix 24 The Public Health Connection to the Implied Warranty of Habitability and HB1410 By Amy Pritchard, Lynn Foster and Jimmy Gazaway 32 Why Brand Enforcement Laws for Medical Marijuana are Deficient, and What it Means for the Industry’s Product Safety Efforts By Amanda Denton 38 2019 Legislative Update By Jay Robbins
42 Access to Lawyers, Access to Justice: New Developments and Future Plans By Marquisa Wince 46 ARJLAP 2019 Annual Advocate’s Dinner By Jennifer Donaldson
On the cover
See page 6 for list of Bar Bunch names and More Bar Bunch photos.
Contents Continued on Page 2
Lawyer The Arkansas Vol. 54, No. 3
in this issue ArkBar News
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ArkBar Annual Meeting
20
ArkBar Governance Report
30
Law School Updates
44
Disciplinary Actions
49
Arkansas Bar Foundation
50
In Memoriam
51
Classified Advertising
52
columns
President’s Report
7
Brian Rosenthal
Young Lawyers Section Report
9
Stefan McBride
#bAR #bARNone #ArkbAR
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, 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, Jordan Rogers, 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, Carla M. Martin, George Lea 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 Congratulations to ArkBar Executive Director Karen K. Hutchins Karen was presented an award at the NABE Annual Meeting in August for her outstanding and dedicated leadership as NABE President 2018-19. ArkBar’s Executive Director Karen K. Hutchins is a shining example of President Brian Rosenthal’s motto “the Bar is for Service.” Karen recently completed her service this past year as the national president of the National Association of Bar Executives. Immediate Past President Suzanne Clark often refers to Karen as a “complete rock star in the bar association world,” because of her experience and service. Brian says the association has benefited from Karen’s initiative in seeking out that national leadership role.
Karen was honored at the Presidents’ Reception at this year’s Annual Meeting with Suzanne Clark and Judge John Fogleman.
“It gives her the opportunity to bring us new ideas,” Brian said in a recent article on Karen in the High Profile section of the Arkansas Democrat Gazette. “With Karen’s help we have been able to be among the first bars in America to provide cyber protection services to its lawyers. So that’s real cutting-edge type stuff.” Karen commented in the article, “that’s put me in a group of all bar associations and how they work. Many of them are structured differently, but we’re all here to support our members and we’re all facing the same issues that come down the pike.” Robert Craghead, executive director of the Illinois Bar Association, who has worked with Karen through the national board for many years spoke to Karen’s leadership traits in the article: “Karen is intelligent, analytical and thoughtful, and most importantly, she cares about people. She is a recognized leader in our chosen field. She is exceptional in her ability to analyze and develop solutions to problems that the NABE has confronted over the years with respect to which way we’re going to head in the future,” Craghead said. Karen has served as the Executive Director of the Arkansas Bar Association for the past 12 years. Karen is also the past president (2018-19) of the Arkansas Society of Association Executives.
Karen spoke at the Dallas Bar Association Emerging Bar Leaders’ 2019 Leadership Conference; pictured here with State Bar of Texas Executive Director Trey Apffel.
Karen was invited to provide the commencement address to the Class of 2019 of LISA Academy North in May; pictured here with Dr. Bogrek.
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The Arkansas Lawyer
www.arkbar.com
Joint Effort to Provide Free Legal Assistance to Arkansas Flood Victims Thank you to all those who volunteered to assist victims of the historic flooding in Arkansas in May and June. The following organizations joined forces to support a toll-free phone line for Arkansas flood victims to request free legal assistance, and to provide volunteer attorneys to handle cases arising from recent storm damage: the Arkansas Bar Association and the Young Lawyers Section, FEMA, the Arkansas Emergency Management Agency, the American Bar Association, Center for Arkansas Legal Services, Legal Aid of Arkansas, Arkansas Access to Justice, Arkansas Trial Lawyers Association and Arkansas Association of Defense Counsel.
Thank you to Rose Law Firm
The Arkansas Bar Association and the Arkansas Bar Foundation are grateful to Rose Law Firm for providing temporary office space for the Arkansas Bar Center staff when faced with potential flooding in the Riverdale area in early June, two weeks before the Annual Meeting in Hot Springs. Pictured above is the parking lot and street in front of the Arkansas Bar Center. Pictured left is the Arkansas River near the banks behind the Bar Center. The waters did not enter the building.
Oyez! Oyez! ACCOLADES Arkansas Business selected the following members for inclusion in the 2019 “40 Under 40” Class: Nate Steel, Steel, Wright, Gray, PLLC; Kendra Pruitt, Little Rock Mayor’s Office.
APPOINTMENTS AND ELECTIONS Chad W. Pekron of Quattlebaum, Grooms & Tull PLLC, was appointed to the State Board of Education.
2019-2020 ARKBAR COMMITTEE CHAIRS Arkansas Bar PAC: Brent J. Eubanks; Audit Committee: Ledly Stock Jennings; Branding Task Force: Jeffrey Ellis McKinley; Continuing Legal Education Committee: Brooke Moore; Disaster Preparedness Task Force: Kandice A. Bell and Samantha Vital; Editorial Advisory Board–The Arkansas Lawyer: Anton L. Janik; Engagement Task Force: Gregory J. Northen; Finance Committee: Joseph F. Kolb; Governance Committee: J. Cliff McKinney II; Jurisprudence & Law Reform Committee: Jamie Huffman Jones and Sean T. Keith; Law School Committee: Harry A. Light; Legal Hall of Fame Task Force: J. Cliff McKinney II; Legal Related Education Super Committee: Beverly Brister; Legislation Committee: Lynn Foster; Member Benefits Committee: David S. Mitchell and Vicki Vasser-Jenkins; Membership Super Committee: Brian M. Clary and Denise R. Hoggard; Mock Trial Sub-Committee: Anthony L. McMullen; Personnel Committee: Mark W. Hodge; Practice Closure Task Force: Bob Estes; Professional Committee: Maggie Benson and Shaneen K. Sloan; Professional Ethics Committee: Brad L. Hendricks; Redistricting Task Force: Bob Estes; Revenue Task Force: Charles L. Harwell; Strategic Governance Task Force: Eddie H. Walker, Jr.; Website & Social Media Sub Committee: Chistopher Hart Collins and Jordan Rogers.
Filing Petitions Due October 31, 2019 For 2021-2022 ArkBar President The President-elect of the Arkansas Bar Association is elected by the vote of the entire membership of the Association. The position rotates each year among the three state Bar districts. The next president-elect designee will come from Bar District A. Nominating petitions must be filed with the secretary at the Association’s office no later than October 31, 2019. The petitions must be signed by at least 75 Association members. The petition signers must include at least 25 signatures from Association members residing in each of the three state Bar districts of the Association. Please contact Karen Hutchins at 501-801-5663 for a petition. The member elected this fall will assume the office of president-elect at the June 2020 Annual Meeting in Hot Springs and will become the Association president in June of 2021.
Teachers Law School
2019-2020 ARKBAR SECTION CHAIRS Administrative Law: Ruthanne Nash Murphy; Business Law: J. Don Overton; Civil Rights Law: Mary Claire Hyatt; Construction Law: Jeffrey H. Moore; Corporate & In-House Counsel: Matthew David Mitchell; Criminal Law: Judge Andrew C. Gill; Debtor/Creditor: O. C. “Rusty” Sparks; Elder Law: Steven M. McClelland; Environmental Law: Basil V. Hicks; Family Law: Angela M. Mann; Government Practice: Angela C. Lowther; Intellectual Property & Technology: Joshua Hallenbeck; International & Immigration Law: Kathleen M. McDonald; Labor & Employment: Candice A. Settle-Beshears; Natural Resources Law: William M. Klein; Probate & Trust: Lillian Dee Davenport; Real Estate Law: J. Cliff McKinney II; Solo, Small Firm & Practice Management: William P. Allison; Tax: Matthew C. Boch; Young Lawyers Section: Stefan McBride.
WORD ABOUT TOWN Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. announced Wade Bowen has joined the firm as Counsel in the Jonesboro office. Wright Lindsey Jennings announced that Michelle Browning and Jason Browning have joined the firm as part of the firm’s medical malpractice defense team. Please send Oyez announcements to ahubbard@arkbar.com.
The Legal Related Education Committee presented the Eighth Teachers’ Law School at the Arkansas Bar Center on August 9. Thank you to the following volunteers for making the annual event another success: Beverly Brister, Chad Cumming, Dr. Jay Barth, Anthony McMullen, Dr. Candace Barnes, Jordan Rogers and Courtney Salas-Ford. The program is geared toward civics and lawrelated topics with instruction from Arkansas lawyers and authors. Topics included free speech, hot topics in education, practical legal information for students, and other interesting topics. Vol. 54 No. 3/Summer 2019 The Arkansas Lawyer
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the Bar Bunch From the cover: Top row l to r: Danyelle J. Walker, Arkansas Bar Foundation President; Paul W. Keith, President-Elect; Glen Hoggard, Secretary; Second row l to r: Joe Kolb, Treasurer and Annual Meeting Co-Chair; Cindy Kolb, Annual Meeting Co-Chair; Brian Rosenthal, President; Stefan McBride, YLS Chair; Third row l to r: Brandon K. Moffitt, Board of Governors Chair; Suzanne Clark, Immediate Past President; Aaron Squyres, Parliamentarian
More Bar Bunch The Staff Bunch
Top row l to r: Carolyn Witherspoon, American Bar Association Delegate; Amy Johnson, Arkansas Access to Justice Executive Director; Harry Truman Moore, American Bar Association Delegate; Second row l to r: Ann Pyle, Arkansas Bar Foundation Executive Director; Judge John Fogleman, Arkansas Judicial Council President; Jennifer Johnson, Arkansas Bar Foundation Associate for Finance and Administration; Third row l to r: J. Cliff McKinney II, Arkansas Access to Justice Board President; Richard L. Ramsay, American Bar Association Delegate; Sarah Jewell, Mid-Year Meeting Chair 6
The Arkansas Lawyer
www.arkbar.com
Top row l to r: Kristen Frye, Director of Education and Administrator of Staff Relations; Cynthia Barnes, Office and Data Administrator; Anna Hubbard, Publications Director; Second row l to r: Jay Robbins, Director of Government Relations; Karen K. Hutchins, Executive Director; Yan Chen, Director of Finance & Administration; Third row l to r: Alexis Teal, Data Integrity Specialist; Michele Glasgow, Executive Administrative Assistant; Jennifer Jones, Meetings and Membership Director
PRESIDENT’S REPORT
THE BAR IS FOR SERVICE AND FOR GOOD! Brian Rosenthal Please vote in our Constitutional Election this Fall. See page 49 and visit arkbar.com/ for-attorneys/new-governance-structure-proposal. Recently, a national bar associations’ publication stated a national trend in bar associations is a public service academy citing our bar association’s announcement as the third such program to launch in America. I am very grateful to Nate Looney and Maggie Benson, chairpersons of our Public Service Academy, and staff liaison Jay Robbins who have shown tremendous initiative and vision in crafting our first Public Service Academy, co-presented with the Clinton School of Public Service and sponsored by the University of Arkansas School of Law and the University of Arkansas Little Rock Bowen School of Law. Other sponsors include bar sections, law firms and lawyers. We celebrate lawyers who choose to serve and advance our profession. Such service brings a unique perspective to any organization. Our steering committee of former Chief Justice Howard Brill, Judge Earnest Brown and Speaker of the House Matthew Shepherd plan to announce our first class soon, as our academy will host its first session in November in Little Rock to be followed by a session at the University of Arkansas School of Law in January 2020. Applications may be found at www.arkbar.com under the link https://www.arkbar.com/events/ public-service-academy and are due September 3! As mentioned, the bar is not only for service, it is for good! I
am grateful for the opportunity to serve all lawyers. My agenda is to serve all with equal enthusiasm. This year we will focus on the many positive aspects of our association, its volunteers and new initiatives. We have a dynamic organization for service and for good. First let’s take a look at who we are: •We are made up of lawyers of every practice area and age group and part of the state. •We are represented by a professional staff of nine. •Our attorneys volunteer and serve our community in local, regional and national posts. •A new governance proposal approved by the House of Delegates will be set for vote this Fall! Thanks to our statewide, diverse task force chaired by Eddie Walker, Jr. and vice-chaired by Aaron Squyres. •We have several new task forces advancing and reviewing our profession. First, our task force on Emeritus Attorney Pro Bono practice has proposed a new rule for retired or inactive lawyers to keep their licenses under inactive status, but practice solely in conjunction with a pro bono legal service. This dynamic task force was chaired by Julie Greathouse with the assistance from Access to Justice Commission’s Jordan Rogers. A copy of the proposed rule change can be found by logging in arkbar.com and go to Open Forum (found under the ACE tab).
• Another new task force was formed with the encouragement of Chief Justice Dan Kemp and involves disaster preparedness. We formed the disaster preparedness task force two weeks before our state experienced its flood disaster. The disaster task force is chaired by Kandice Bell of the Arkansas Governor’s Office and Sam Vitale of Springdale–Sam is leading the Young Lawyers in this service project. Traditionally, our young lawyers have prepared a Disaster Preparedness Handbook, and this task force will update the handbook and look for ways to implement disaster plans with lawyer assistance. Currently, we have an active disaster relief effort in conjunction with our legal aid societies. If you know of someone who was affected by the recent floods whose residence is in the following counties: Conway, Crawford, Faulkner, Jefferson, Perry, Pulaski, Sebastian, and Yell, they may contact 1-800950-5817 for direction to either a legal aid service or volunteer lawyer to help them navigate flood disaster relief opportunities and programs. •A new task force has been formed to look at our bar branding. We have operated under the same logo for a number of years and this task force chaired by Jeffrey McKinley is made up of lawyers, community artists, lawyer artists and law firm marketing professionals.
Brian Rosenthal is the President of the Arkansas Bar Association. He is a member of Rose Law Firm in Little Rock. •Our redistricting task force just completed its constitutionally mandated review. That task force chair is Bob Estes of Fayetteville who has recently been appointed to take the chair of the Practice Closure task force which is being reconstituted under guidance from Stark Ligon. •Professor Lynn Foster, who is chairing our legislation committee, has already started a statewide effort to recruit those who are willing to serve. You may find her recruitment form by logging in arkbar.com and going to the Legislative Resources page. The bar could not perform its services and activities without our sponsors and we are grateful for our program and annual sponsors. These sponsors are highlighted throughout the year in our magazine and as program and event sponsors. If you would be willing to help our bar and sponsor a program or become an annual sponsor at any level, we are anxious to craft a sponsorship that meets your needs. The bar would not and could not function without volunteers. I have been inundated with offers to assist, which is a real boost and shows me that our bar is supported and supporting. As I close my first column, I wish to thank Judge Victor Fleming for sharing his creative talents in helping highlight a focal point of our bar service year. You will find the answer key on Page 29.
Vol. 54 No. 3/Summer 2019 The Arkansas Lawyer
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CROSSWORD
NEW ESTABLISHMENT By Victor Fleming Co-sponsored by the Bowen School and UA-Fayetteville Law and Co-presented by the Clinton School and … 7-/65-Across Across 1 7 10 13 14 15 16 17 19 20 21 22 25 26 27 29 32 33 37 39 40 41 42 43 44 46 49 53 55 56 57 59 61 62 63 64 65 66
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Meghan, Duchess of Sussex, on May 13 14 15 6, 2019, e.g. With 65-Across, Natural State 17 18 16 grp., familiarly, with a committee 20 21 19 whose members’ last names are answers to the starred clues 25 22 23 24 Corp. money mgr. Klingons and Vulcans 26 27 28 ___ B (backup strategy) 29 30 31 32 33 34 35 36 Omelet ingredient *“Soap” spinoff 37 38 39 Current White Monopoly bills 40 41 42 Tiny ammo 43 44 45 *UPS truck color Inside-___ (like trivia appreciated by 46 47 48 49 50 51 52 only a few) Hutchinson and Gray 55 56 53 54 Persian Gulf sheikdom 59 60 57 58 Jeweler’s tool Sport-___ (off-road vehicle) 62 63 61 Drug buster, for short Jittery 65 66 64 Start of play, in tennis Plebe’s place Actor Len of “Four Seasons” Down Got grounded? 41 Agree 1 Muckety-muck Post-year letters 45 Possible explanation 2 The Honorable ___ Kagan Second pleading, often (abbr.) 46 ‘Vette rival 3 Cellar selections ___ infinitive 47 “... but maybe I’m wrong” 4 ___ up (made a mistake) Unknown Soldier’s place 48 Fine sprays 5 Musician Yoko *One seen with a crook? 50 ___ Del Mar (“Brokeback 6 AOL competitor *European flatfish Mountain” role) 7 Zurich’s peaks Drug buster’s employer, for short 51 Witherspoon of “Legally 8 Hamelin rodent “Powerful” cabinet dept. Blonde” 9 It opens the door Like a juicy melon, maybe 52 Hot air source 10 Mass confusion *“___ Tunes” (classic animated 54 Ewe’s offspring 11 Mullah’s edict series) 55 She takes action 12 Dark clouds, some think Utter drivel 58 Mermaid’s milieu 14 Part of PDA Converge 59 Kind of wrench 18 ___ with (covered by) Revolt 60 Unlatch, in poems 20 Be loud, as a radio Sot’s affliction 23 Podiatrist’s concern See 7-Across 24 “Beady” Old World calculator Old Faithful, for one 27 Mild-mannered 28 How some place bets at Oaklawn 29 Golden State sch. 30 Pekoe or Assam 31 Be human? 34 Belle of the ball, for short 35 Big name in trucks 36 Potato feature 38 Like a good alternative See page 29 for answers. 39 Antigone’s A The Arkansas Lawyer www.arkbar.com
YLS REPORT
A HARD ACT TO FOLLOW By Stefan K. McBride Stefan K. McBride is the Chair of the Young Lawyers Section. He is an attorney with the Davidson Law Firm in Little Rock. Merle Haggard is the best male country music singer of all time; that is not a controversial question. The identity of the second-best male country music singer is, however, a topic for lively debate for those of us who ponder such questions. For myself, Ray Price, Marty Robbins, Don Williams, Vern Gosdin, or Jim Reeves are all strong contenders. Some (not me) would nominate Keith Whitley as a contender. I take issue with giving someone legendary status bonus points because of a tragic death. (But he is an unbelievable talent with a really, really sad story, I’ll admit. His hasty home recording of “Tell Lorrie I Love Her” just a few weeks before his death is gripping.) Obscure fact: Whitley’s first album was titled “A Hard Act to Follow,” and a song with that title also appears on the record. (Ironically, this album was easy to follow because later albums were far more successful.) “A hard act to follow” is my sentiment stepping into this role after the inimitable Sarah Jewell. She was wonderfully suited for this position in both temperament and skill. I am thankful for her commitment, her leadership, and her friendship. I get tired just watching her, but I am grateful she intends to continue serving us
young lawyers and ArkBar generally. Thanks, friend. At this point, I think I am supposed to sketch out what you can expect to see from YLS over the next year. As I do, I am struck at how well things have been done in previous years. To the degree that YLS is a benefit to anyone this year, please keep the following in mind: The current leadership knows that we are serving you tradition, integrity, and trust from cisterns we did not dig in chalices that we did not forge. But first: Why YLS? I believe that participation in YLS provides significant exposure to opportunities for self-care, community, and service, all of which are necessary components for a healthy lawyer. (Though generally not billable, I’ll admit.) Lawyering is tough. Even when it’s good, it’s tough. I am convinced that lawyers either find constructive, helpful ways to deal with the stress, or they don’t. For obvious reasons, it’s best to build good habits as a young lawyer. In my experience, the people who participate in YLS are mostly the former. These people are the ones you want to surround yourself with to ward off depression, frustration, and all the other dreadful companions to lawyering.
My tendency, as a young lawyer, has been to embrace cynicism and sarcasm. I am a scoffer, generally. I will probably always be a scoffer. But one of the ways that I have held these demons at bay is through involvement in the Young Lawyers Section. Through YLS, I have been able to spend time around other lawyers with passion, vision, and commitment to something greater than the next tenth of an hour. These lawyers have encouraged me to think lofty thoughts and avoid the crappy ones. The tedious aspects of involvement (reading by-laws, forming opinions on minutiae, attending meetings that should have been an email, etc.) are worth the rewarding aspects of involvement, and that by an order of magnitude. So…you should get involved. Here are some things you can look forward to this year. (NB: I need help with every single one of them.) YLS will be continuing its tradition of providing basic estate-planning documents free of charge to first responders, known as “Wills for Heroes.” This is a ton of fun. Recognizing that heroes come in other shapes and sizes—and that sometimes pro bono work requires serving those who don’t give us warm fuzzies—we hope
to think more broadly about serving other groups. YLS will also continue its tradition of assessing and updating its various publications, which include “18 and Life to Go,” “Statute of Limitations Handbook,” and several resources for those suffering under and serving those suffering under domestic abuse. I would also like to revive a quarterly publication in the style and substantive quality of The Arkansas Lawyer. (The Young Arkansas Lawyer?) YLS will try to expand its membership, both numerically and geographically. As someone who is not originally from Little Rock, I am conscious that there are, in fact, places where lawyers live that are not Little Rock or NWA. YLS should reflect that. I would also like to see greater YLS participation in ArkBar generally, including involvement on governance bodies, committees, task forces, the PAC, and attendance at events. These are my ideas, but I am not married to them. If you have better ones, let’s try yours. Seriously: If you’d like to know more or have suggestions about how YLS can do great things, I would love to hear from you. Above all, I want to see YLS bless and benefit as many young Arkie lawyers as possible.
Vol. 54 No. 3/Summer 2019 The Arkansas Lawyer
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Brian Rosenthal was sworn in as the 122nd President of the Arkansas Bar Association on June 14, 2019.
Brian Rosenthal President Article by Anna Hubbard
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The Arkansas Lawyer
Family and friends left to right: Sylvia Boyer, Jeanne Lloyd, Tommy Boyer, Laurel Rosenthal, Lisa Robison, Scott Rosenthal, Brian, Susie Rosenthal, Grant Rosenthal, Jo Boyer, Molly Rosenthal, Austin Rosenthal and Janet Rosenthal
www.arkbar.com
How did he get the band to march in this formation? “It turns out that to get the band to form the scales of justice, you ask the band to form the scales of justice,” he joked. In addition to the videos, each table in the room had envelopes that included invitations to support the association in different ways and chocolates hand-wrapped by Brian’s wife, Susie, bearing the association’s logo. “At every table each person has a different envelope,” Brian announced. “If you are willing to help, or are willing to consider a new idea to help build the bar, I invite you to open your envelope when I conclude. None of the items requested cost money.”
STAY TUNED “We are going to be creative and do some things differently,” Brian Rosenthal said after being sworn in as the 122nd president of the Arkansas Bar Association. “So, stay tuned all year.” Brian’s swearing-in ceremony began like most traditional ceremonies of the association’s incoming president, taking place during a special luncheon on the final day of the annual meeting at the Hot Springs Convention Center. Chief Justice Kemp administered the oath of office to Brian on June 12, 2019, following the State of the Judiciary Address. A few events stood out as different in this year’s ceremony, starting with a live rendition of the national anthem performed by Brian’s longtime friend and Gridiron actor Craig Wilson. “Brian always brings a creative flair to all of his work,” Craig said. Craig also made an appearance as President Trump while a video replayed highlights of the 2018 Gridiron performance during the annual meeting. Next Brian showed an “expose video” entitled “Kids Say the Darndest Things” which captured an unscripted video session with
Chief Justice Kemp at the Justice Building with a group of curious children. “I hope the Chief Justice and I remain friends because we have a little bit of a surprise for him. We had some secret cameras filming the goings on at the court. So, with your permission I would like to present to you a backstage view of a day at the court where it’s not just the justices who get to ask questions. So, this is a little bit of an expose.” “Why do you sometimes stand up there and talk?” one of the children in the video asked while the rest of the children giggled. “Just so I can be seen a little easier and heard a little easier,” Kemp patiently replied. “Has someone ever said anything mean to you, like said, you shall die or something?” asked another while the camera panned other children who had their mouths dropped and eyes wide open in shock. “Nothing like that. Nothing that mean,” he said. “They have said some mean things to me,” he added after a pause. A video of the Razorback marching band in a special formation—the scales of justice— closed the ceremony. “I wondered what it would feel like if the band encouraged nonathletes in their careers,” Brian said.
CREATIVE FLAIR Brian and Susie have two children, and art and theatre play a big role in their lives. “My daughter Molly has a degree in musical theatre and has recently returned to Arkansas to pursue a graduate degree in education and my son Grant will be a freshman in college this fall. Some of the things we enjoy are creative, as both Molly and my wife Susie have been on stage, including at The Rep, Murry’s and most recently Molly at Argenta Community Theatre. Most of Susie’s stage performances, but not all, have included Gridiron, where we have made lifelong friends and memories.” Craig Wilson currently serves on the board of the Gridiron Productions, Inc., with Brian and has worked alongside him for many years. “Brian recognizes the vitality and togetherness that the arts bring to a community, and he has been dedicated to ensuring the livelihood and growth of the arts in Arkansas,” Craig said. “This is acutely evident through his work at the Arkansas Repertory Theater and the biennial Gridiron show, which spoofs local politics. Although no stranger to the stage, you will rarely see him on it. He is often the driving force, though, who makes sure that the curtain goes up.” Like in his work with the theatre, Brian would prefer to work behind-the-scenes as the 122nd president of the Arkansas Bar Association, stating that “I [would] prefer to serve anonymously but that is not allowed.” A genuinely humble man, Brian spent a large part of his swearing-in ceremony thanking the people in his life who have supported him. He expressed gratitude to all of his guests, members of his firm, mentors, past and incoming bar presidents, staff members, and members of the association.
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From left to right: Brian’s late father Malcom and son Grant holding one of the famous tomatoes; Brian with his mother Laurel and Diane Carroll; the courthouse in Carthage, Missouri (photo credit Kelly Hartley and Carthage Chamber of Commerce). “We are grateful when someone decides to join the bar association. About 60% of the licensed lawyers in Arkansas join the bar association. At 5000+ members with 32 sections and 15 committees, we are staffed by one of the smaller bar association staffs. Our bar association has volunteer leaders, and we are temporary. The presidents each serve only 525,600 minutes.” SERVICE AND LEADERSHIP Although Brian wants the attention focused on others, Brian’s track record with the association deserves the spotlight. Numerous presidents appointed him to chair various committees, and he served as chair of the Board of Governors under past president Denise Hoggard (2016-17). “Brian brings enthusiasm to any task before him,” Denise said. “When he served as Chair of the Board of Governors he was challenged to create progress in our mission during a time we were actively cutting expenditure levels. In other words, he was asked to do more with less. He didn’t shy away from the task. His creativity and dramatic flair was obvious. He opened his home to the Board members for a holiday meeting that was elegant, fostered collegiality and got the members excited about doing the hard work before us. He crafted thoughtful challenges to get the governors thinking about our association’s rich history and the important functions it serves in representing our profession and the public we serve.” “He consistently builds consensus and problem solving,” she added. “He is efficient 12
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and flat out works harder than most everyone around him. The presidency requires mastering technology and it is not an easy part of the job. I’ve watched him navigate the system and his video messages are top notch. So proud of his service.” Brian understands and values the traditions of the association and has a passion for continuing to move it forward in a positive and creative way. He chaired the annual meeting in 2007, which was the 50th anniversary of the integration of Central High School in 1957. In his role as chair, he arranged a creative team of talented artists, film producers and actors to produce inspiring audio and visual representations of the litigation that followed the event. One of the films, “The Giants Wore White Gloves,” told the story of the “Women’s Emergency Committee to Open our Schools.” Brian introduced one of the women who served on the committee, Diane Carroll, as one of his special guests at the swearing-in ceremony. Brian described Diane as “a role model for all of us in the way that she has lived her life and the way she has supported the bar and the profession.” Diane is the widow of the late Phil Carroll, war hero, past president of the Arkansas Bar Association (1980-81), and member of the Rose Law Firm for 63 years. Both Diane and Phil “championed tolerance and inclusiveness.” Brian mentioned that like past president Rosalind Mouser (2008-09), he stands on the shoulders of others. He is the seventh president from the Rose Law Firm to serve as president of the Arkansas Bar Association:
U.M. Rose (1898-99) who was the association’s first president, George B. Rose (190203), J.F. Loughborough (1921-22), Archie House (1948-49), J. Gaston Williamson (1968-69), and Philip Carroll (1980-81). “I am very humbled to follow in these footsteps,” Brian said. LOOKING BACK Brian is a native of Carthage, Missouri. He is grateful that his parents, both graduates of the University of Missouri, allowed him to follow his heart to the University of Arkansas. “I believe there are many good college choices, but the University of Arkansas was the right one for me. It provided me with a great education and opened up opportunities throughout my lifetime, including through today. It was there I met my spouse and was introduced to this dynamic state. I feel like I have two home states, both of which I love.” Brian speaks with pride and respect for his birthplace and gratitude for his family. Carthage is a unique town in many ways and has quite a military and arts history. It is the home of several artists and continues to support the arts, including in unique ways like both an operating dinner theatre and a drive-in movie theatre, both on historic Route 66. It is home to one of America’s most beautiful courthouses made of marble and limestone native to North America and quarried in Carthage. I am very fortunate to have had supportive parents who valued edu-
cation. In Carthage my late father Malcom was a businessman with a passion for reading and nature. He grew organic tomatoes of many varieties and made all his own plant food, fertilizer, and insect repellants from scratch. I have the plant food formula. He gave the tomatoes as gifts to friends or charities, with his primary charity being Camp Quality, a camp for children with cancer. My mother Laurel has a passion for education. Next year she will be celebrating her 53rd year at Mark Twain Elementary School where she has served as a teacher and now principal. I was in my mother’s first kindergarten class, and the kids did not think I was very smart as I called the teacher “mom,” instead of “teacher.” I still do! She has also served in many volunteer capacities in the community. The most accomplished leader in my family is my brother Scott—he is a great role-model and is an excellent public speaker. He constantly supports others and our entire family. Brian was an accounting major at the University of Arkansas and went on to the University of Missouri law school. He admires anyone who seeks to advance themselves through a profession such as law, which offers so many opportunities to help and serve others. After law school he was hired by a law firm in Dallas (Winstead) where he worked in the real estate finance section. Soon Brian and Susie felt drawn back to Arkansas where he was happy to reconnect with his close friends, Steve Joiner, Mike Lax and Tommy Vaughn, who had been trusted leaders in the Sigma Nu fraternity where Brian pledged. They were all attorneys at the Rose Law Firm, where Brian considers himself fortunate to have practiced since 1989. Dan Young has had the opportunity to work alongside Brian for almost 20 years at Rose Law Firm and said that Brian truly respects and cares about everyone. “The impact Brian has had on the firm cannot be measured,” Dan said. “He has mentored countless attorneys, including myself, and his dedication not only to our clients, but also to the legal profession in Arkansas, is beyond compare.”
MOVING FORWARD “Without question, serving as the Arkansas Bar President is daunting and exciting,” Brian said as he explained some of his initiatives for the year. “First, the bar association desires to support lawyers who serve through our new Public Service Academy (“PSA”). In Arkansas, as in many other states, there has been a decline in the number of lawyers who are serving in the legislature. Our PSA is the third such program in America. The academy is designed to teach members of the bar how, why and when to run for public office at any level. The academy does not exclusively relate to the legislature; it can be a springboard to run for judicial office, city council, mayor, governor, federal office or even a community group.” The Academy is co-presented with the Clinton School of Public Service and sponsored by the University of Arkansas School of Law and the University of Arkansas Little Rock Bowen School of Law. Brian appointed Maggie Benson (Bowen 2014; Clinton School 2014) and Nate Looney (Bowen 2012; Clinton School 2012) to chair the Inaugural Public Service Academy. “Brian is enthusiastic about the success of the Public Service Academy and the success of the bar as a whole,” said Maggie Benson. “His thorough and humble approach to leadership will promote the bar’s mission of encouraging practices that improve the honor and dignity of the profession. Brian’s commitment to fostering opportunities for public service is one of the many ways he is an asset to the bar.” One of the items on the agenda for this bar year is the new governance structure for the association. “We are very excited to move forward under a proposal to restructure our governance,” Brian said. “After a year-long study where it was determined that most bar associations have moved away from two governing bodies, a proposal will be made to the membership of the bar to restructure the bar into one governing body. This proposal passed the House of Delegates at annual meeting and will be voted on by the membership in November. The proposal was crafted by young lawyers, seasoned lawyers, lawyers from all over the state, and the planning group was diverse in every way, including a mix of plaintiffs’ bar, defense bar, government and in-house counsel.”
LULABELLE’S LIFTOFF One of the things that people may not know about Brian is that he has written a series of children’s mystery books. “They have not been published, but my son gave me an artist’s rendition of the cover last year for my birthday; pictured here with my pen name G.K. Ludwin (using a pen name like Missouri’s Mark Twain).” My heroine is a young lady named Lulabelle who loves math. I was a math tutor when I was younger and found that math puzzles and games helped to engage young people to enjoy math. In my mystery series Lulabelle and her brother Lelandale work together to solve local school crimes and math riddles. Send me an e-mail and I will send you my copyrighted first book. (You will be my first and perhaps only reader!)”
Brian pledged to serve with compassion and kindness. “I will be positive, responsive, and I hope you conclude that I will have served with high integrity. But most of all I will serve with humility in honor of my father’s blessed memory. I am very honored and grateful and will strive to be even handed.” “If I ever do something that seems like it is favoring one side of the bar or the other, please call that to my attention as that is not my intention,” he added.
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LAND ROVERS, EXCESSIVE FINES, AND SELECTIVE INCORPORATION: CIVIL ASSET FORFEITURE AFTER TIMBS V. INDIANA
By Annie Depper and J. Blake Hendrix
Supreme Court of the United States, November 28, 2018 “Come on, General,” Justice Neal Gorsuch blurted out. It was oral argument in Timbs v. Indiana. Thomas M. Fisher, the Indiana Solicitor General, was Justice Gorsuch’s target. Justice Gorsuch was incredulous: “And here we are in 2018 still litigating the incorporation of the Bill of Rights. Really?” Justice Kavanaugh, six weeks on the bench, joined in. “But aren’t—but aren’t all—all the Bill of Rights at this point in our conception of what they stand for, the history of each of them, incorporated?”1 The case involved civil asset forfeiture, a common tool used in the war on drugs. But the debate, although not much of one, was about the Selective Incorporation Doctrine.
Depper
Hendrix
Annie Depper and J. Blake Hendrix are partners at Fuqua Campbell, P.A., in Little Rock. Annie specializes in criminal defense and civil litigation. Blake has practiced criminal law since 1986. They would like to dedicate this article in memory of their paralegal Alexa Montez. 14
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Marion, Indiana, Five Years Earlier Tyson Timbs is a symbol for contemporary American addiction. Timbs was prescribed a powerful painkiller after injuring his foot at work, and he was soon hooked.2 Finally, his doctor cut him off, and Timbs began to look for something else. He found heroin.3 Heroin and prescription opioids have similar properties, and their physiological effects on users are virtually the same. Heroin, however, is cheaper and more available.4 Timbs moved in with his aunt to get clean, but then his father died, and he started using again. His father’s life insurance policy left him $73,000, and Timbs splurged.5 He bought a $42,000 Land Rover LR2 and squandered the rest on opioids and heroin. “I was careless and stupid,” he told The Atlantic. “I wonder to myself how I went through all that money.”6 An addict with money. The word was on the street. A police informant suggested Timbs sell heroin to support his addiction.7 The police set up a controlled buy and, on May 6, 2013, an un-
“The standard for determining excessiveness is left to practitioners to argue and courts to decide.” dercover detective and the informant met Timbs at an apartment where Timbs sold them two grams of heroin for $275. The police arranged another buy, and on May 22, Timbs sold the detective another two grams for $260, and a third and final buy was arranged.7 Approximately a week later, on May 31, as Timbs drove to the final transaction in his new Land Rover, he was arrested.8 Timbs entered into a plea agreement, pleading guilty to one count of felony dealing in a controlled substance. Under the deal, Timbs was sentenced to six years, with one year in community corrections and five years suspended. He was assessed approximately $1200 in costs and fees, but the sentence did not include a fine.9 The state of Indiana, however, intended to keep Timbs’ $42,000 Land Rover, having filed a civil suit against the vehicle seeking an in rem forfeiture. Timbs fought the forfeiture, arguing that forfeiting the Land Rover constituted an excessive fine: after all, he had only dealt drugs twice, about four grams, and the Land Rover’s value was over four times the maximum fine for his offense—$10,000.10 Relying on the Eighth Amendment’s prohibition against excessive fines, Timbs argued that
forfeiting the vehicle was disproportionate to his offense.11 The state’s response was simple: the Eighth Amendment’s Excessive Fines Clause does not apply to the states.12 A Legal Fiction: Property is the Criminal A civil in rem forfeiture is a lawsuit filed against property.13 The government, for instance, can file a civil lawsuit seeking forfeiture of not only contraband, such as illegal drugs or a murder weapon, but also ordinary objects, such as a vehicle used to transport drugs or a home where drugs were sold. In rem forfeiture can extend not only to proceeds directly generated from an unlawful act, but to proceeds that are traceable to, or used to facilitate, an unlawful act.14 Since these are civil suits, the owner of the property doesn’t have the same protections afforded in a criminal case. The government need only prove its case by a preponderance of the evidence, not beyond a reasonable doubt. An owner is not entitled to an attorney if he or she can’t afford to defend against the forfeiture. Even an innocent owner—an owner not involved in the underlying crime—must bear the costs of litigation and prove that he or she was, in fact, innocent of any wrongdoing.15
Policing for Profit: A Brief History Civil asset forfeiture has its genesis in Medieval England in something called a “deodand.” “At common law the value of an inanimate object directly or indirectly causing the accidental death of a King’s subject was forfeited to the Crown as a deodand.”16 The property—the “instrument of death”—was the accused.17 The goal of a deodand seemed noble: “The value of the instrument was forfeited to the King, in the belief that the King would provide the money for Masses to be said for the good of the dead man’s soul, or insure that the deodand was put to charitable uses.”18 The British later developed a less noble purpose for the forfeiture of property— to raise revenue. In the Navigation Act of 1660, Parliament mandated that only English ships could be used to carry imports to and exports from the Colonies. Anyone found attempting to violate the Navigation Act was deemed a “smuggler” or a “pirate,” and his ship, and the goods on the ship, were subject to forfeiture.19 The use of forfeiture to raise revenue did not end with American independence. In the Collection Act of 1789, the First Congress imposed taxes on imported goods and
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on ship owners according to the vessel’s weight; any vessel that violated the Act or any goods smuggled in without payment of the duty were subject to forfeiture.20 The nascent American government used forfeiture to fund the War of 1812, the Civil War, and the Spanish American War, increasing customs duties on cargo ships and seeking forfeiture of ships found in violation of the law.21 Following these years of war, the government’s use of forfeiture declined. It would see a brief resurgence with prosecutions of bootleggers in the 1920s, but real use of civil forfeitures did not resurface until Ronald Reagan’s War on Drugs.22 The Comprehensive Crime Control Act of 1984 revived civil asset forfeiture. The same logic used to raise revenue for war was used to raise revenue for the war on drugs. According to Reagan’s Attorney General, Richard Thornburgh, forfeiture ensured that “a drug dealer [] serve[d] time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation.”23 Thus began the modern-day use of civil forfeiture: policing for profit. According to the Institute for Justice, the federal Justice and Treasury departments collected almost $4.5 billion in forfeiture proceeds for the 2014 fiscal year.24 Arkansas law enforcement agencies received approximately $59 million in cash from 2010 to 2018.25 Almost all these proceeds are generally used for “law enforcement or prosecutorial purposes.”26 Selective Incorporation: Applying the Eighth Amendment to the States The Institute for Justice represented Tyson Timbs before the Supreme Court. Its argument was simple: the Eighth Amendment’s ban on excessive fines prohibited the forfeiture of the Land Rover. Forfeitures, the Institute argued, are fines if the forfeiture’s purpose is, even in small part, to punish the offender. The forfeiture of the $42,000 Land Rover was meant to punish Timbs, and was, therefore, a fine. Further, the forfeiture/fine was disproportionate to Timbs’ offenses and in violation of the Eighth Amendment’s ban on excessive fines. But there was one problem with the Institute’s argument: the Supreme Court had never held that the Excessive Fines Clause applied to the states.27 16
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The founding generation only intended for the guarantees of the Bill of Rights to restrict the power of the federal government.28 The states were free to craft their own laws. If a state wished to suppress free speech or to establish a state religion, it was free to do so (as long as it didn’t violate the state’s constitution). The states were free to prohibit slavery if they chose to, or they were free to give slavery its official approval (several of which did). The Civil War radically changed the nature of our system of governing.29 After the ratification of the three Civil War Amendments, the states were no longer free to do as they wished. The Thirteenth Amendment prohibited the states from maintaining slavery; the Fifteenth Amendment forbade the states from disenfranchising any voter “on account of race, color, or previous condition of servitude.” The Fourteenth Amendment was equally powerful. It prohibited the states from violating the fundamental human rights that should be the core values of any civilized society. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”30 The Fourteenth Amendment became the vehicle for incorporating rights protected in the Bill of Rights. This incorporation rendered such rights applicable to the states. But, which rights to incorporate? As Justice Ginsburg states in Timbs, “A Bill of Rights protection is incorporated . . . if it is ‘fundamental to our scheme of ordered liberty,’ or ‘deeply rooted in this Nation’s history and tradition.’”31 Since ratification of the Fourteenth Amendment in 1868, the Supreme Court has incorporated many rights protected in the Bill of Rights, finding each “fundamental to our scheme of ordered liberty” or “deeply rooted” in American history and tradition. In 1925, in Gitlow v. New York,32 the Supreme Court incorporated freedom of speech and of the press. The Court held, For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and
"liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States.33 The Court has since selectively incorporated, among others, the right to be free from unreasonable law enforcement searches and seizures (the Fourth Amendment);34 the right against self-incrimination (the Fifth Amendment);35 and, the protection against cruel and unusual punishments (the Eighth Amendment).36 After a lull, the Court more recently incorporated the right to keep and bear firearms (the Second Amendment) against state infringement.37 By now, most people assume that all of the protections of the Bill of Rights have been incorporated into the U.S. Constitution and that those rights are protected against state infringement. Remember Justice Gorsuch’s question: “[H]ere we are in 2018 still litigating the incorporation of the Bill of Rights. Really?” Justice Kavanaugh seemed to believe that all of the Bill of Rights had already been incorporated. But there are a few that have not. The right to a unanimous jury verdict in criminal cases has not been incorporated.38 The Fifth Amendment’s right of an accused to be charged by a grand jury has not been incorporated.39 And, the right to be free from excessive fines was not incorporated— until Timbs. The Opinion in Timbs v. Indiana In an opinion announced February 20, 2019, the Supreme Court held that the Excessive Fines Clause of the Eighth Amendment is an incorporated protection enforceable against the states through the Fourteenth Amendment. The decision was unanimous. The court found that the prohibition against excessive fines is both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.”40 The prohibition is traceable to Magna Carta, in 1215. Blackstone, in his Commentaries on the Laws of England, found that “no man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear . . . .”41 The English Bill of Rights provided that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.”42 The Virginia Declaration of Rights43 and
then the Eighth Amendment used the same basic words: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”44 Freedom from excessive fines is steeped in our tradition. Accordingly, it must be incorporated, constraining not just federal action, but state action, as well. But how did that help Timbs? Remember, he was not fined; the state was trying to forfeit his Land Rover. In 1993, the Court held in Austin v. United States45 that the Excessive Fines Clause applied to federal civil in rem forfeiture actions. Federal civil in rem forfeitures are, the Court held, “fines” within the meaning of the Eighth Amendment when they are at least partially punitive. “[A] civil sanction,” the Court said in Austin, “that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving retributive or deterrent purposes, is punishment.”46 Think of an order of restitution with the sole goal of having the offender return what he took from the victim. Such an order is most likely to be considered remedial, not punitive. But now consider what the FBI states are the goals of asset forfeiture: • • • • • •
To punish criminals To deter illegal activity To disrupt criminal organizations To remove the tools of the trade from criminals To return assets to victims To protect communities47
The first two purposes the FBI lists serve goals of retribution and deterrence, the hallmarks of punishment. Finding that freedom from excessive fines is incorporated and that in rem forfeitures are fines, the Timbs Court concluded its analysis, providing little guidance on how to determine excessiveness. The big question left open in Timbs is: what exactly counts as “excessive” in the context of civil in rem forfeitures? Where Do We Go From Here? The standard for determining excessiveness is left to practitioners to argue and courts to decide. The trial court in Timbs found persuasive the disproportionality between the fine available for Timbs’ offenses and the value of the property sought for forfeiture. This metric is a useful starting point:
the maximum fine for Timbs’ offenses was $10,000, but the value of the Land Rover the state sought to forfeit was worth over four times as much. Is forfeiting a $42,000 asset disproportionate to the offense of selling approximately $500 worth of heroin? Likely so. Proportionality will doubtless be assessed by courts in future post-Timbs forfeiture cases. Timbs leaves us with another important issue: the Selective Incorporation Doctrine. It is clear that many members of the Supreme Court assume that all the protections contained in the Bill of Rights should be incorporated and enforced against the states. And most rights have. But some protections of the Bill of Rights, rights that are fundamental to our system of ordered liberty, do not apply to the states—yet. For instance, in 1937, Arkansas repudiated the right of its citizens to be charged by a grand jury,48 a right enshrined in the Fifth Amendment. In 1884, the Supreme Court refused to incorporate the Grand Jury Clause.49 But that was 135 years ago, and, since then, the Supreme Court has said that the Grand Jury, derived from Magna Carta, “serves a vital function in providing for a body of citizens that acts as a check on prosecutorial power.”50 Perhaps now, particularly in light of the questions presented by Justices Gorsuch and Kavanaugh, Arkansas practitioners and courts should start asking if it is time to incorporate the Fifth Amendment’s Grand Jury Clause and apply its protections to the states, including Arkansas. Endnotes: 1. Transcript of Oral Argument at 33, Timbs v. Indiana, 139 S. Ct. 682 (2019) (No. 17-1091), https://www.supremecourt.gov/oral_arguments/argument_ transcripts/2018/17-1091_6c36.pdf. 2. Mark Alesia, Tyson Timbs, former ‘junkie’ from Marion, is namesake of important U.S. Supreme Court Case, Indianapolis Star (Oct. 29, 2018, 6:00 AM), www. indystar.com/story/news/2018/10/29/ tyson-timbs-institute-justice-civil-assetforfeiture-us-supreme-court-eighth-amendment/1646693002. 3. Institute for Justice, Supreme Court Asks: Can States Impose Excessive Fines?, YouTube (Sept. 5, 2018), www.youtube.com/watch?v =FPml1UTijf0&feature=youtube. 4. Id. 5. Scott Bullock & Nick Sibilla, The Supreme Court Resuscitates the Eighth Amend-
ment, The Atlantic (Mar. 13, 2019), https://www.theatlantic.com/ideas/archive/2019/03/unanimous-supreme-courtdecision-policing-profit/584506/. 6. Id. 7. State v. Timbs, 62 N.E.3d 472 (Ind. Ct. App. 2016). 8. See id. 9. Id. 10. Id. 11. Timbs v. Indiana, ___ U.S. ___, 139 S. Ct. 682, 686 (2019). 12. Id. 13. In rem forfeitures can have strange case names: United States v. $124,700 in U.S. Currency, 458 F.3d 822 (8th Cir. 2006); United States v. Forty Barrels & Twenty Kegs of Coca Cola, 215 F. 535 (6th Cir. 1914); United States v. One Lucite Ball Containing Lunar Material, 252 F. Supp. 2d 1367 (S.D. Fla. 2003). 14. See, e.g. 18 U.S.C. § 981; 21 U.S.C. § 881; Ark. Code Ann. § 5-64-505. 15. See e.g., 21 U.S.C. § 881. 16. Austin v. United States, 509 U.S. 602, 611 (1993) (quoting Calero v. Pearson Yacht Leasing Co., 416 U.S. 663, 680–81 (1975) (citation omitted)). 17. Id. 18. Id.. 19. Caleb Nelson, The Constitutionality of Civil Forfeiture, 125 Yale L.J. 2446, 2457–63 (2016). 20. Id. at 2465. 21. Brittany Hunter, A History of Civil Asset Forfeiture in America, Tenth Amendment Center (Apr. 12, 2019), https:// tenthamendmentcenter.com/2019/04/12/ahistory-of-civil-asset-forfeiture-in-america/. 22. Id. 23. How Crime Pays: The Unconstitutionality of Modern Civil Asset Forfeiture as a Tool of Criminal Law Enforcement, 131 Harv. L. Rev. 2387, 2387 (2018). 24. Policing for Profit: The Abuse of Civil Asset Forfeiture 2nd Edition, Institute for Justice, ij.org/pfp-state-pages/policingprofit-federal-government (last visited Aug. 4, 2019). 25. Civil Asset Forfeiture in Arkansas May Change After US Supreme Court Ruling, But the State Could Do More to Protect Arkansans, Univ. of Cent. Ark., Ark. Ctr. for Res. in Econ. (Feb. 21, 2019), uca.edu/ acre/2019/02/21/civil-asset-forfeiture-maychange. 26. See 18 U.S.C. § 981(e); 21 U.S.C. § 881(3); Ark. Code Ann. § 5-64-505(h) – (i).
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27. Timbs, 139 S. Ct. at 687. 28. See id. 29. See id. 30. U.S. Const. amend. XIV. 31. Timbs, 139 S. Ct. at 686-87, quoting McDonald v. Chicago, 561 U.S. 742, 767 (2010). 32. Gitlow v. New York, 268 U.S. 652, 666 (1925). 33. Id. at 667. 34. Mapp v. Ohio, 367 U.S. 643 (1961). 35. Malloy v. Hogan, 378 U.S. 1 (1964). 36. Robinson v California, 370 U.S. 660 (1962). 37. McDonald v. Chicago, 561 U.S. 742 (2010). 38. Apodaca v. Oregon, 406 U.S. 404 (1972). 39. Hurtado v. California, 110 U.S. 516 (1884). 40. Timbs, 139 S. Ct. at 688. 41. William Blackstone, Commentaries on the Laws of England. Vol. 2 372 (Univ. of Chicago Press 1979) (17651769). 42. English Bill of Rights 1689, Yale Law School, The Avalon Project, https:// avalon.law.yale.edu/17th_century/england. asp (last visited Aug. 4, 2019). 43. Virginia Declaration of Rights, Yale Law School The Avalon Project, https://avalon.law.yale.edu/18th_century/ virginia.asp (last visited Aug. 4, 2019). 44. U.S. Const. amend. VIII. 45. 509 U.S. 602 (1993). 46. Asset Forfeiture, Fed. Bureau of Investigation, www.fbi.gov/investigate/whitecollar-crime/asset-forfeiture (last visited Aug. 4, 2019). 47. www.fbi.gov/investigate/white-collarcrime/asset-forfeiture. 48. U.S. Const. amend. 21, sec. 1. 49. Hurtado v. California, 110 U.S. 516 (1884). 50. United States v. Cotton, 535 U.S. 625, 634 (2002).
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The Program is structured to provide affordable pricing whether you are a Solo Practitioner or a large corporation. The ABA Retirement Funds Program is available through the Arkansas Bar Association as a member benefit. Please read the Program Annual Disclosure Document (April 2018) carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: joinus@abaretirement.com. Securities offered through Voya Financial Partners, LLC (member SIPC). Voya Financial Partners is a member of the Voya family of companies (“Voya”). Voya, the ABA Retirement Funds, and the Arkansas Bar Association are separate, unaffiliated entities, and not responsible for one another’s products and services. CN700696_0121-2019
2019
annual Thank meeting You 2019 Annual Sponsors
The 121st Annual Meeting was a SLAM DUNK thanks to our Annual Sponsors, volunteers and attendees! Yay Team! DIAMOND LEVEL Arkansas Bar Foundation
ArkBar PAtron MeMbers
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2018-19 President Suzanne Clark pictured left with her husband Steve, center with Annual Meeting Chair Vicki Vasser-Jenkins and right with 2019-20 President Brian Rosenthal.
50 ArkBar volunteers packed 10,576 meals for neighbors in need in our first outreach program during annual meeting. ArkBar partnered with the Pack Shack for the “Feed the Funnel” project. Thank you to the Young Lawyers Section, McMath Woods P.A. and the Davis Law Firm for sponsoring the event. Pictured left, YLS Chair Sarah Jewell and Annual Meeting Chair Vicki Vasser-Jenkins. We hope to see you next year for our second annual service project during the 2020 Annual Meeting! The exhibit hall was the place to relax with therapy dogs, yoga, chair massages, games, and a chance to mingle with and colleagues and exhibitors.
Thursday’s social events pictured above included the traditional Friday Firm reception sponsored solely by Friday, Eldredge & Clark and the first annual tailgate party with live entertainment and food trucks.
The theme for the Annual Meeting was “Game Changers” and it was a line-up of over 40 hours of CLE, including plenary speaker Shannon Miller, pictured center, who hosted a meet and greet. The Arkansas Game and Fish Honor Guard presented the Colors before Chief Justice Kemp’s State of the Judiciary followed by the Swearing-In Ceremony for Brian Rosenthal pictured far right with Janet, Laurel, Rodney Slater and Austin Rosenthal. Vol. 54 No. 3/Summer 2019 The Arkansas Lawyer
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2019
ARKBAR ANNUAL AWARD RECIPIENTS Arkansas Bar Association President Suzanne Clark selected the following members as award recipients for their outstanding work and service.
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Judge Morris S. Arnold, U. S. Court of Appeals for the Eighth Circuit, received the Maurice Cathey award for his valued contributions to The Arkansas Lawyer magazine.
J. Cliff McKinney II, Quattlebaum, Grooms & Tull PLLC, Little Rock, received the Outgoing Board of Governors Chair award.
Kandice A. Bell, Law Office of Governor Asa Hutchinson, Senior Counselor and District Representative, received a Golden Gavel award for her work as cochair of the Member Benefits Committee.
Anthony L. McMullen, Assistant Professor of Business Law, University of Central Arkansas, received the Lawyer Community Legacy Award in recognition of his volunteer public service.
Carl J. Circo, Ben J. Altheimer Professor of Legal Advocacy, University of Arkansas School of Law, received the CLE Award for elevating the quality of continuing education provided through ArkBar CLE.
Jordan Rogers, Program Coordinator, Arkansas Access to Justice, received the Judith Ryan Gray Outstanding Young Lawyer award.
J.B. Cross, JB Cross Construction Law, Little Rock, received the CLE Award for elevating the quality of continuing education provided through ArkBar CLE.
Aaron L. Squyres, Wilson & Associates, PLLC, Little Rock, received a Golden Gavel award for his work as chair of the Legislation Committee.
Brad Hendricks, The Brad Hendricks Law Firm, Little Rock, received a Golden Gavel award for his work as chair of the Professional Ethics Committee.
Scott C. Trotter, Trotter Law Firm, PLLC, Little Rock, received a Golden Gavel award for his work as a Jurisprudence and Law Reform Committee Subject Matter Expert.
Jamie Huffman Jones, Friday, Eldredge & Clark, LLP, Little Rock, received a Golden Gavel award for her work as chair of the 2019 Mid-Year Meeting.
Vicki Vasser-Jenkins, Wright, Lindsey & Jennings, LLP, received a Golden Gavel award for her work as chair of the 2019 Annual Meeting.
Chris Hussein, Staff Attorney in the Consumer Protection Workgroup at Legal Aid of Arkansas, Inc., received the YLS Award of Excellence
Samantha Vital, Davis, Clark, Butt, Carithers & Taylor, PLC, Springdale, received the YLS Award of Excellence.
Paul W. Keith, Gibson & Keith, Monticello, received a Golden Gavel award for his work as chair of the Jurisprudence and Law Reform Committee.
Eddie H. Walker, Jr., Walker, Shock & Harp, P.L.L.C, Fort Smith, received a Presidential Award of Excellence for his work as chair of the Strategic Governance Task Force.
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ARKANSAS BAR FOUNDATION AND ARKANSAS BAR ASSOCIATION JOINT AWARDS Outstanding Lawyer Award LAURA HENSLEY SMITH of Friday, Eldredge & Clark, LLP, Little Rock, received the award in recognition of excellence in the practice of law and outstanding contributions to the profession.
Outstanding Lawyer-Citizen Award F. THOMAS CURRY of McMillan, McCorkle & Curry, LLP, Arkadelphia, received the award in recognition of outstanding participation in and for excellent performance of civic responsibilities and for demonstrating high standards of professional competence and conduct.
C.E. Ransick Award of Excellence JAMES D. SPROTT of Sprott, Golden & Bardwell, Harrison, received the award in recognition of outstanding contributions to the profession.
James H. McKenzie Professionalism Award GORDON S. RATHER, JR. of Wright, Lindsey & Jennings, LLP, Little Rock, received the award in recognition of sustained excellence through integrity, character and leadership to the profession and the community.
Equal Justice Distinguished Service Award STEVEN T. SHULTS of Shults & Adams LLP, Little Rock, received the award in recognition of his commitment to and participation in equal justice programs, including pro bono efforts through legal services programs.
Outstanding Jurist Award CHIEF JUSTICE JOHN DAN KEMP of the Arkansas Supreme Court, received the award in recognition of exceptional competency, efficiency and integrity on the Bench and exemplary service to the administration of justice.
Arkansas Bar Foundation Writing Awards
Boch
Graves
Read
Legal Category: Matthew C. Boch, Dover Dixon Horne PLLC General Category: Kathlyn Graves and Nathan Read, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.
CELEBRATING
50
Outstanding Local Bar Associations Pulaski County Bar Association Sebastian County Bar Association
YEARS President Suzanne Clark honored members celebrating 50 years of practice at a luncheon on June 13, 2019. H. William Allen John M. Bilheimer Larry B. Boling Eugene D. Bramblett Jack E. Browne James C. Clark John Atkins Crain Warren E. Dupwe Chadd L. Durrett, Jr. Horace J. Fikes Dent Gitchel Roger A. Glasgow Robert H. Holmes Judge B. Kenneth Johnson
Robert L. Jones III Judge Robert Lynn Lowery Frank B. Newell Richard Martin Pence James G. Petty, Jr. Norvell N. Plowman David M. Powell Thomas E. Robertson, Jr. Joe M. Rogers Ted H. Sanders Virgil W. Trotter Bud Whetstone
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THE PUBLIC HEALTH CONNECTION TO THE IMPLIED WARRANTY OF HABITABILITY AND HB1410
By Amy Pritchard, Lynn Foster and Jimmy Gazaway This article summarizes some of the existing research connecting public health with housing quality.
Amy Pritchard is an Assistant Professor of Clinical Education at the University of Arkansas at Little Rock William H. Bowen School of Law, where she directs the consumer protection clinic. Lynn Foster is the Arkansas Bar Foundation Professor of Law at the University of Arkansas at Little Rock William H. Bowen School of Law. Jimmy Gazaway is State Representative for District 57 (Paragould) and is serving in his second term. He is an attorney in private practice. This article was completed with the assistance of a grant from the Bowen Law School.
Pritchard 24
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Foster www.arkbar.com
Gazaway
P
oor-quality rental housing can adversely affect the health of tenants. Research conducted both outside and within Arkansas clearly demonstrates the connections between housing quality and tenant health. All states except for Arkansas have recognized the need for and enacted the “implied warranty of habitability,” a requirement that landlords maintain a minimal level of fitness and habitability in residential housing.1 Without this requirement, Arkansas landlords generally have no duty to tenants to repair premises.2 Some municipalities have adopted housing codes that require minimum standards, but such codes can only be enforced by the government. Tenants can report violations, but no law prevents a landlord from evicting such a tenant as quickly as possible, within 30 days in the case of a month-to-month lease. Therefore, many rental units in Arkansas are neither healthy nor safe. Attorneys who represent tenants are familiar with a pattern of conduct by landlords who rent unhealthy and unsafe housing, make promises of repair to new tenants, do nothing or evict the tenant who complains, and then re-rent the same unhealthy and unsafe unit to the next tenant who comes along. Attempts to enact such a law in Arkansas began in the 1970s, subsequent to the Uniform Law Commission’s adoption of the Uniform Residential Landlord Tenant Act in 1972. However, the Arkansas legislature has steadfastly resisted all bills containing such a warranty, going so far in 2007 as to enact only the pro-landlord provisions of the uniform law and omitting any pro-tenant provisions. In 2011, the legislature created a commission that studied landlord-tenant law throughout the U.S. and unanimously recommended passage of an implied warranty in Arkansas.3 In every subsequent legislative session, bills requiring an implied warranty of habitability in residential housing have been introduced and have failed in committee. This article summarizes some of the existing research connecting public health with housing quality. It summarizes the features of HB1410 as introduced and connects the standards imposed on landlords with the health problems they are designed to ameliorate. The bill’s reception by the legislature (it was defeated in committee) is discussed briefly. Finally, the article discusses some of the most important public health provisions an Arkansas implied warranty of habitability statute should contain and includes suggestions for moving forward.
Research Outside of Arkansas In terms of public health, “[a] robust body of research has established links between health and housing.”4 A longitudinal study of over 2,400 children and adolescents in low-income families living in low-income neighborhoods in three cities revealed that poor quality housing is connected to greater emotional and behavioral problems in children, as well as lower average reading and math skills in adolescents. The authors hypothesized that “rather than being a source of security and escape from life’s pressures, a home with quality deficiencies may add to other stresses experienced by poor families, leading to a cumulative negative effect on well-being.”5 Such defects as lead paint, cockroaches, bedbugs, and lack of heat, hot water, or adequate light have all been shown by research to affect children’s cognitive abilities, ability to regulate emotion and behavior, engagement in learning activities, and social activities.6 These types of defects are presumably more prevalent in Arkansas, because of our lack of an implied warranty of habitability and lack of any tenant right to repairs. A Cleveland study showed that children who lived for a prolonged time in housing that was rated low to substandard by county assessors had lower literacy scores on entering kindergarten.7 The researchers noted that substandard housing played a unique role separate from family poverty. Of course lead paint in rental housing, which is regulated by federal law, can lead to developmental and educational deficits. However, other less serious problems can still cause or exacerbate health problems that will result in children missing school, which in turn will cause reduced performance on tests. Researchers have connected conditions like the persistent presence of cockroaches, pesticides, and mold to the incidence of asthma. Asthma can lead to absenteeism even if it is mild or moderate. One finding of the study was that living in a home with poor physical conditions is associated with a higher risk of child maltreatment, residential instability, and elevated lead levels, which all affect literacy scores.8 Types of premises defects can be linked to the health problems they cause. Health problems can be classified into four broad categories for this purpose: infectious diseases (such as respiratory infections and tuberculosis), chronic diseases (such as asthma
and allergies), injuries, and mental health.9 In the third part of this article, premises defects and their related health problems will be discussed in relation to the provisions in HB1410 that addressed them. Another policy issue that deserves some attention is public health costs. Many tenants whose health is affected by defective premises are almost certainly under- or uninsured, and taxpayer money is subsidizing their health care. Improving the quality of their housing will improve their health and cut down on health costs. Attorneys who represent tenants know well the frustration and despair experienced
by tenants who are dealing with serious problems a landlord refuses to fix (such as raw sewage) and who cannot afford to move. Coming home every day to an uninhabitable home is exhausting and depressing over and above the immediate effects of the defective premises. Arkansas Health Research Local research also indicates that poor housing conditions negatively affect the health of Arkansas tenants. In 2017, Arkansas Community Institute and its partners conducted a health-impact assessment study on the potential health impacts of adopting
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minimum housing standards.10 The study included a literature review; analysis of national and local data; and stakeholder interviews, tenant surveys, and focus group discussions. Researchers concluded that [t]he implied warranty of habitability can and does work to bring needed repairs and improvements to substandard housing that cause or exacerbate poor health. Adopting minimum standards for rental housing would strengthen renters’ rights and paired with enhanced code enforcement and education-based initiatives would likely improve public health and begin to address housing inequalities in Little Rock.11 As part of this study, researchers linked and analyzed existing data from the City of Little Rock’s Code Enforcement/311 database and the University of Arkansas for Medical Sciences (UAMS) data warehouse. This data linkage showed that “among Little Rock properties inspected for code violations, individuals seen at the University of Arkansas for Medical Sciences (Little Rock’s public hospital) for a respiratory condition were nearly 3 times more likely to live in a property that had a mold related violation notice issued.”12 Researchers from the University of Arkansas for Medical Sciences Fay W. Boozman College of Public Health surveyed nearly 1000 Arkansas tenants. Survey responses indicated that low-income renters often experienced problems getting landlords to make needed repairs, and survey respondents “who reported landlord problems often experienced health issues that they attributed to the condition of their rental property.”13 Of those survey respondents who reported housing issues, the most commonly reported maintenance issues were plumbing related (51%), followed by heating or cooling (42%), pests or rodents (36%), windows or doors (25%), and electric (24%). Respondents attempted to address these types of conditions by asking the landlord to fix the problem (73% asked more than once and 19% asked only once), in addition to trying to fix the problem themselves (19%) and ultimately moving (38%). While 55% of respondents who requested repairs reported that landlords eventually fixed problems, a substantial number of respondents indicat26
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ed that they were threatened with evictions (20%), had their requests ignored (10%), or experienced verbal abuse from the landlord (9%). “Of those who had problems with their landlord making repairs, one-quarter (25%) perceived that the problems impacted their health or the health of their family. Increased stress was the most frequently cited response (69%), followed by 46% who reported breathing problems, 37% indicated headaches, 27% with blood pressure problems, 22% had insect or animal bites, and 16% reported skin problems.”14 In United Health Foundation’s annual ranking of health outcomes by states, Arkansas ranks among the least healthy states overall and in nearly every health outcome.15 Health policy experts have advocated for increasing regulation of rental properties in order to improve the health of Arkansas tenants. The Arkansas Center for Health Improvement, a nonpartisan, independent, health policy center, examined national and local research on health and housing and concluded that the health and wellbeing of Arkansas tenants could be improved by enhanced housing regulation: “Establishing basic protections similar to those provided to individuals in other states could improve clinical outcomes and reduce medical costs. Potential savings resulting from fewer days of missed work/school and more appropriate medical utilization could offset the costs of improving housing conditions in Arkansas.”16 It called Arkansas an “outlier” because of its lack of “basic tenant protections” from “poor living conditions.”17 Children’s HealthWatch, a nonpartisan network of pediatricians, public health researchers, and children’s health and policy experts, has interviewed over 4,000 low-income Arkansas families since 2012. Based on its review of the data, which includes factors related to housing insecurity, the network advocates for a tenant’s bill of rights to decrease the hardships that negatively affect child health. They write: In Arkansas, landlords are not required to fix housing quality issues and renters cannot take money out of rent for repairs. These conditions negatively affect renter households. Establishing renter’s rights will protect renters from landlord retaliation by enforcing stricter housing codes,
imposing fines for landlords whose rental properties are not up to code and issuing small loans for landlords to make rental unit repairs.18 2019 House Bill 1410 Any implied warranty of habitability (“IWH”) law must have particular elements to be effective. When initially filed by sponsor Rep. Jimmy Gazaway (an attorney and a landlord), HB1410 contained all of these elements and protections for landlords and tenants. •HB1410 contained the requirements landlords must meet, discussed in more detail below. The initial general requirement referenced housing codes, which would apply in cities and towns, but the specific requirements were also included for those many properties throughout Arkansas where no housing codes apply. •HB1410 exempted landlords from the requirements in several instances, most notably if the tenant has caused the damage. •HB1410 made clear that a landlord would be in breach only if the noncompliance caused significant health or safety problems for the tenant. •HB1410 contained a procedure for tenants to follow if the landlord breached the IWH. •HB1410 contained remedies for tenants and relief for landlords if either party did not adhere to their responsibilities under the statute. •HB1410 prohibited landlords from forcing tenants to waive their rights under the statute, because without this provision tenants could sign a lease with a waiver without even realizing it. •HB1410 prohibited landlords from retaliating against tenants who sought repair from the landlord or contacted the local code enforcement agency (if any). In the authors’ experience, fear of retaliation is one of the biggest obstacles preventing tenants from reporting unsafe housing conditions to local code enforcement agencies. •HB1410 provided tenant remedies for unreasonable landlord access to tenant premises.19 The minimum standards that would be imposed on landlords connect quite directly to the health and safety of tenants. Following is each minimum standard in HB1410, matched with the relevant health problems it would ameliorate:
Landlords must comply with requirements of housing and similar codes that materially affect health and safety of tenants. Comment: This directly ties landlord obligations to housing, fire, and other types of codes that require minimum standards of building upkeep with a goal of healthy and safe occupancy. It is connected to all four types of health problems: infectious diseases, chronic diseases, injuries, and mental health. Landlords must ensure that premises and common areas are safe and fit for use consistent with the lease. Comment: The URLTA imposed similar obligations on landlord and tenant. Tenants were required to keep the tenant’s own premises clean and safe. (And in fact, this tenant duty was enacted into law in Arkansas in 2007, as Ark. Code Ann. § 18-17-601.) However, common premises and areas are under the control of the landlord, and not the tenants. Therefore, it makes sense to have a similar requirement of landlords with respect to common areas. Landlords must provide and maintain in good working order 1) a waterproof structure; 2) a reasonably safe structure containing sound walls, floors, etc; 3) locks on exterior doors and windows; 4) hot and cold running water in compliance with laws and regulations; 5) plumbing, ventilation, heating systems, electrical systems, and (if available) air conditioning that conformed to the law when installed; 6) means for trash disposal; and 7) working smoke alarms and carbon monoxide detectors at the beginning of the lease. Comment: Each of these requirements correlates with public health and safety issues, as follows. Water leaks are not only unsafe because they have the potential to cause collapse, but they are also unhealthy because dampness provides a “nurturing environment” for mites, roaches, respiratory viruses, and molds, thus causing or exacerbating respiratory diseases such as asthma.20 Structural defects allow entry to rodents and cockroaches, leaking pipes provide water for them to drink, and ineffective trash disposal provide them with food.21 In turn, cockroaches and mice can be allergens and are triggers for asthma.22 Rodent bites can cause bacterial infections that are hard to cure.23 Although bedbugs do not spread disease, they are an allergen. The inability to both heat and cool premises to livable temperatures can have an effect on health, a deadly effect in some cases.24
Toxic substances found in premises not maintained or repaired include, to name the most likely, tobacco smoke (third-hand smoke25), nitrogen dioxide and carbon monoxide (from poorly vented or functioning gas stoves and kerosene heaters), lead paint, airborne asbestos (from deteriorating insulation), polyvinyl chloride flooring and wall materials, and pesticide residue in old carpets (which can be much more harmful to babies and toddlers, whose breathing zones are much closer to the floor). These can cause or exacerbate asthma, lung cancer, headaches and CO intoxication (and ultimately death), neurological and developmental abnormalities, mesothelioma, and bronchial obstructions in children.26 Hazardous conditions in rental premises include structural defects like inadequate lighting and unsafe floors. Defective heating systems may drive tenants to purchase unsafe short-term heating appliances. For example, in a recent Arkansas appellate decision the cause of action arose when the landlord did not repair the heater and the tenant purchased space heaters, one of which severely burned the tenant’s granddaughter.27 Reception at the Legislature The bill enjoyed a better reception than it has in years past. Nonetheless, critics of the 2019 bill raised several concerns. One was that the words “health” (except as part of the phrase “health codes”) and “safety” should be removed from the bill.28 To do so is tantamount to removing the word “vehicle” from traffic regulations. Healthful and safe premises are the very foundation of an implied warranty of habitability. Landlord-tenant law is replete with requirements of “health” and “safety.” To name a few in Arkansas, statutes already require tenants to keep their own rental units “reasonably safe” and to comply with housing code provisions materially affecting health and safety.29 A tenant who does not comply with these requirements to the extent that health and safety are materially affected is subject to liability.30 The Arkansas Fire Prevention Code requires unsafe structures be taken down and removed or made safe. The federal Housing and Urban Development requires its housing be “decent, safe, sanitary and in good repair.”31 A clear double standard is present in placing obligations on tenants but not landlords. Other concerns were economic. Critics opined that the bill would unintention-
ally harm tenants by putting “mom and pop” landlords who could not afford the repairs out of business, and in response a provision was added that would exempt landlords from having to make a repair if the landlord’s noncompliance was caused by circumstances outside his or her control and repair would cause the landlord “undue financial hardship.”32 Both landlords and legislators raised concerns that HB1410 would cause rents to rise. However, a recent paper published in the American Journal of Sociology found that exploitation (defined as “being overcharged relative to the market value of a property”) of tenants is highest in poor neighborhoods.33 The researchers examined U.S. Census data nationwide and found that landlords who own property in poor neighborhoods face more risks so “they hedge their position by raising rents on all tenants, carrying the weight of social structure into price. Since losses are rare, landlords typically realize the surplus risk charge as higher profits.”34 The authors noted that “many policy analysts have simply assumed that extending tenant protections would automatically drive up rents, an assumption based on the presumption that landlords with thin profit margins would be forced to pass on additional costs to tenants.”35 However, the research study found “profit margins of landlords in poor neighborhoods to be higher than those of landlords operating in more affluent communities.”36 Another concern of landlords and legislators was tort liability. For example, tort liability would render a landlord liable for a tenant’s medical expenses to cure an illness or treat a condition or injury caused by a breach of the implied warranty of habitability together with other elements of negligence. However, HB1410 expressly stated that it would not expand landlord tort liability beyond its current statutory parameters.37 The goal of HB1410 was to spur repair and maintenance of housing. The initial version of HB1410 would have allowed damages for diminution of value to premises, but not injury to the tenant or damage to her property. After several well-attended hearings on the bill, where committee members heard favorable testimony from public health experts, including Arkansas’ former surgeon general Dr. Joe Thompson; a landlord; tenants; a firefighter; a pediatrician; a legal expert; an economist; and representatives of community organizations such as AARP and Arkan-
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sas Renters United, the bill failed to advance out of committee. After three rounds of amendments, tenants lost significant protections for health and safety and several tenants’ remedies were removed from the bill. By the last hearing, its supporters could no longer be confident that the benefit to tenants would outweigh the cost. IWH and Tenants’ Rights Moving Forward Given the extensive media attention on this issue and the growing public awareness, it seems inevitable that another IWH bill will be filed in the next legislative session. Legislative success of a bill that will provide meaningful tenant rights would seem to require a fundamental shift in the Arkansas legislature regarding landlord-tenant law. Landlords are a favorite of Arkansas law. Not only has the Arkansas legislature been willing to in effect subsidize undercapitalized landlords by refusing to enact an implied warranty of habitability, but it has also enabled the shifting of the cost of eviction to taxpayers, as witnessed by Arkansas’ unique status as the only state that essentially criminalizes the failure to pay rent.38 In all other states, landlords must represent themselves or retain an attorney to obtain an eviction through a civil proceeding, but a significant number of counties in Arkansas still allow landlords to complain to a prosecuting or city attorney who then initiates a criminal lawsuit, thus relieving landlords of the business cost of a lawsuit and transferring that cost to taxpayers. Future drafters of IWH bills should assess the health impact of their provisions. In addition to the health and safety related provisions discussed above, future bill drafters should consider including requirements related to vermin, including bed bugs, mold, and smoking, as these housing conditions can also have significant health-harming impacts. It is essential that any future IWH bill offer more extensive tenant remedies than the termination of the lease. A robust IWH must contain provisions that allow tenants to obtain injunctive relief for repairs or receive financial compensation for certain damages, at a minimum. Most states allow tenants to repair and deduct, in the case of minor repairs. Remedies that allow tenants to remain in their unit and obtain repairs will likely improve tenant health, as researchers have found that frequent moves are correlated with poor health and educational outcomes.39 Restrict28
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ing the tenant's remedy to moving out is simply codifying the doctrine of constructive eviction, and if constructive eviction had been a sufficient remedy, the other 49 states would not have enacted the implied warranty of habitability, which supersedes constructive eviction. Legislators should beware of an “imposter bill,” that contains no enforcement mechanisms against landlords except the bare remedy for tenants of moving out, no anti-retaliation provisions, and allows waiver of tenant rights. Although such a bill might be hailed as a victory for tenants, it would not be. A recent article noted that the voter initiative in Arkansas is currently a “vehicle for changing state policy while circumventing the party that holds institutional power,” citing the recent passage of the medical marijuana and minimum wage measures.40 The public has overwhelmingly expressed its support for an implied warranty of habitability. In 2019, a poll commissioned by the Arkansas Public Policy Panel revealed that 73% of all Arkansans strongly supported changing state law to enact an implied warranty of habitability, and 18% somewhat supported such a law.41 One-third of Arkansans are renters, over one million people. Perhaps in future we will see the opportunity for voters to weigh in on whether Arkansas should join all other states on this issue. Endnotes: 1. Only two states rely on a judicial implied warranty of habitability. See Lynn Foster, In the Hands of the State: The Failure to Vacate Statute and Residential Tenants’ Rights in Arkansas, 36 U. Ark. Little Rock L. Rev. 1, 36-38 (2013), for a discussion of other states’ laws. 2. Thomas v. Stewart, 347 Ark. 33, 60 S.W.3d 415 (2001); Noel v. Cox, 2019 Ark. App. 70, 570 S.W.3d 510. 3. Arkansas Non-Legislative Commission on the Study of Landlord-Tenant Laws, Report (2012), available at https://ualr.edu/ lawreview/files/2013/01/Foster_Commission-Report.pdf. 4. Leveraging the Health-Housing Nexus, HUD Office of Policy Development & Research, Evidence Matters (Winter 2016), at https://www.huduser.gov/portal/ periodicals/em/winter16/highlight1.html. 5. Rebekah Levine Coley, Tama Leventhal, Alicia Doyle Lynch, and Melissa Kull, Relations Between Housing Characteristics and
the Well-Being of Low-Income Children and Adolescents, 49 Developmental Psychology 1775, 1785 (2013). 6. Id. 7. Claudia Colto, Robert L. Fischer, Francisca Garcia-Cobian Richter, Seok-Joo Kim, and Youngmin Cho, Housing Crisis Leaves Lasting Imprint on Children in Cleveland, MacArthur Foundation (Policy Research Brief ) (n.d.), at https://www.macfound.org/ media/files/HHM_Brief_-_Housing_Crisis_Children_in_Cleveland.pdf. 8. Id. 9. James Krieger and Donna Higgins, Housing and Health: Time Again for Public Health Action, 92 American Journal of Public Health 758, 758 (2002). Abstract available at https://www.ncbi.nlm.nih.gov/pmc/ articles/PMC1447157/. 10. Assessing the Health and Equity Impacts of Arkansas’s Landlord-Tenant Laws, Arkansas Community Institute (2017), at http://arkansascomm.org/wp-content/uploads/2018/07/ReportFinal.pdf. 11. Id. at 10. 12. Id. 13. Ashley Bachelder, M. Kate Stewart, Holly C. Felix, and Neil Sealy, Health Complaints Associated with Poor Rental Housing Conditions in Arkansas: The Only State without a Landlord’s Implied Warranty of Habitability, 4 Frontiers in Public Health 263, at https://www.frontiersin.org/ articles/10.3389/fpubh.2016.00263/full. 14. Id. 15. America’s Health Rankings: Arkansas, United Health Foundation (2018), at http://www.americashealthrankings.org/AR. 16. Health and Housing Fact Sheet, Arkansas Center for Health Improvement (2017), available at https://achi.net/wpcontent/uploads/2018/01/Warranty-ofHabitability.pdf. 17. Id. 18. Chevaughn Wellington, et al.,The Road to Hardship-Free: Little Rock Check-Up for Children, Children’s Healthwatch (2018), available at http://childrenshealthwatch.org/wp-content/uploads/CHWHardship-free-LITTLE-ROCK-web.pdf. 19. Arkansas law already provides landlord remedies if tenants unreasonably deny access. Ark. Code Ann. § 18-17-705. 20. Krieger and Higgins, supra n. 9, at 758. 21. Id. at 759. 22. Id. at 758-59. 23. https://chicago.cbslocal.
com/2019/02/07/rat-complaints-elizabethbranem-toe-bite-five-years-of-hell-bacterialinfection-beal-properties/. 24. Nate Seltenrich, Between Extremes: Health Effects of Heat and Cold, Environmental Health Perspectives (2015), at https://ehp.niehs.nih.gov/doi/10.1289/ ehp.123-A275. 25. Third-hand smoke is chemical residue from smoke that stays on surfaces such as floors and furniture. 26. Krieger and Higgins, supra n. 9, at 758-59. 27. Robinson v. Willis, 2018 Ark. App. 542, 562 S.W.3d 265. 28. Benji Hardy, Revised Landlord Tenant Bill Blocked Again Despite Concessions to Realtors Groups, Arkansas Times, Mar. 19, 2019, available at https://arktimes.com/ arkansas-blog/2019/03/19/revised-landlordtenant-bill-blocked-again-despite-concessions-to-realtors-group. 29. Ark. Code Ann. § 18-17-601. 30. Ark. Code Ann. § 18-17-702. 31. Ark. Code Ann. § 18-17-601; Ark. Fire Code Vol. II, § 116.1; 24 C.F.R. § 5.703 (emphasis added). 32. https://arktimes.com/wp-content/ uploads/2019/04/pdf-draft_amendment_hb_1410_of_2019.pdf. According to the Arkansas State Legislature website, the third version of the bill, after two rounds of changes requested by landlords and the Arkansas Realtors Association, was not adopted and engrossed. However, a draft of the third version can be found at the URL in this footnote. 33. Matthew Desmond and Nathan Wilmers, Do the Poor Pay More for Housing? Exploitation, Profit, and Risk in Rental Markets, 124 Am. J. Of Sociology, 1090, 1090 (2019). 34. Id. 35. Id. at 1120. 36. Id. at 1121. 37. Ark. Code Ann. § 18-16-110. 38. Ark. Code Ann. § 18-16-101. 39. A Child HealthWatch review of literature found that “families with multiple moves are less likely to establish a medical home and seek out preventive health services for their children than are securely housed families. In older children and adolescents, a history of multiple moves has been associated with mental health concerns, substance abuse, increased behavior problems, poor school performance, and
increased risk of teen pregnancy. Multiple moves in childhood can have lifelong impact, as evidenced by higher rates of adverse childhood events, lower global health ratings in adulthood, and increased mental health and behavior concerns lasting through adolescence and into adulthood. Grade-school children with more than 2 school moves are 2.5 times more likely to repeat a grade, and adolescents who experience school moves are 50% more likely not to graduate from high school.“ Diana Becker Cutts et al., US Housing Insecurity and the Health of Very Young Children, 101 Amer. J. Pub. Health 1508, 1508 (2011), at: https://childrenshealthwatch.org/wp-content/ uploads/DC_AJPH_2011.pdf. 40. Olivia Paschal, How to Change Policy Without Politicians, The Atlantic, May 18, 2019, at https://www.theatlantic.com/politics/ archive/2019/05/arkansas-direct-democracyballot-measures/589513/. 41. Conducted by Mason-Dixon Polling & Strategy, at https://arktimes.com/wp-content/ uploads/2019/04/pdf-pollsthreepage.pdf.
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Report from the April 2019 Board of Governors Meeting and the June 2019 House of Delegates Meeting By Karen K. Hutchins The Association’s Board of Governors met April 26-27, 2019, at the Winthrop Rockefeller Institute in Morrilton, Arkansas. The Board received updates on the status of the changes to the membership structure, including adoption of monthly membership payments, which were approved at the December meeting. Also available for the 2019-20 bar year is a new CLE Bundle offering, the membership Auto Renew option, and new subscriptions for Handbooks on Fastcase. There are new developments in our Continuing Legal Education program. Recent decisions by the Arkansas Supreme Court have opened new opportunities for the Association to provide quality ondemand webinars for Arkansas attorneys. Watch for new online webinars starting in August. Chair McKinney recognized PAC Chair Brent Eubanks who reported on PAC and suggested reviewed changes on the PAC enrollment form. Eubanks also explained the importance and use of the Legislative Advocacy Network Contact Form. The Board voted on a motion presented by President Clark to support efforts to become an incorporated entity. The motion passed. President Elect Designee Paul Keith presented a report to the Board on his attendance at the Bar Leaders Institute in Chicago, detailing both the training he obtained and his ideas and plans for future Association consideration. President Elect Brian Rosenthal presented a list of Committee Chairs for the coming bar year and requested Board authorization for creation of several Task Forces. Among the newly-created task forces are the Emergency Preparedness Task Force, the Task Force to Review Emeritus Attorney 30
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Pro bono rules, and a Branding Task Force. Mr. Aaron Squyres, Co-Chair of the Strategic Governance Task Force, provided an update to the Board. The task force was charged with developing a governance structure that is more flexible than the current structure. Chair Squyres outlined the work to date and the commencement of efforts by a Drafting Committee. The task force presented its final recommendations to the House of Delegates at the June 12, 2019, meeting at the Hot Springs Convention Center in Hot Springs. Delegates at the meeting provided their input resulting in amendments to the proposed new governance structure. The House of Delegates reviewed the Strategic Governance Task Force’s recommendation to update the Association’s Constitution creating a combined governance structure resulting in one governing entity, a Board of Trustees. After extensive discussion, the Delegates revised the recommendation from the task force requiring that 60 trustees be elected from 15 trustee districts. Presidential elections will remain on a rotating basis from three state bar districts. As amended, the House voted to proceed to a full membership vote. A vote by the full membership will be forthcoming in November. The Association will send more detailed election information, so it is important all members have their correct contact information on record at the association. The Emeritus Attorney Pro Bono Task Force presented proposed rules to the House of Delegates. The Delegates voted to approve their recommendation to petition for the proposed new Rule. Administrative Order 15.3 Pro Bono Legal Services by Retired or Inactive Attorneys was filed with the Arkansas Supreme Court. The Professional Ethics Committee proposed
changes to the advertising and solicitation Rules, Rules 7.1 to 7.5. These proposed new rules were also presented to the House of Delegates who voted to move forward with filing the petition with the Court. President Elect Brian Rosenthal also announced his 2019-20 officer appointments that included Mr. Brandon Moffitt as Chair of the Board of Governors and Mr. Patrick McAlpine as the Presidential appointee to the Board of Governors. He also appointed Aubrey Barr of Sebastian County and Anthony McMullen of Faulkner County to serve open Board seats. The Association faced a challenging month in June having to vacate the Bar Center as rising waters from the Arkansas River and levees blocked access to the building. A temporary workspace donated by the Rose Law Firm assisted the staff enabling us to prepare for the 121st Annual meeting with 700 in attendance. Staff traveled around the state the last weeks in June to bring in-person CLE across the state in Jonesboro, Little Rock, and Fayetteville. The association presented CLE via webinar to provide our members options to obtain their year-end educational requirements. The next meeting of the Board of Governors will be held August 23-24, 2019, in El Dorado. The meeting will kick off with a regional reception for all members sponsored by the Union County Bar Association. Watch for more regional meetings in your area this bar year.
Karen K. Hutchins, J.D., CAE, is the Executive Director of the Arkansas Bar Association.
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WHY BRAND ENFORCEMENT LAWS FOR MEDICAL MARIJUANA ARE DEFICIENT, AND WHAT IT MEANS FOR THE INDUSTRY’S PRODUCT SAFETY EFFORTS By Amanda Denton With recent guidance from federal authorities, trademark enforcement regulations are improving for some hemp products, but brand protection and product safety challenges remain for medical marijuana.
Amanda Denton is an attorney at Mitchell Williams Law Firm, with over 15 years of experience helping brands and innovators to secure their intellectual property, address government regulations, and conduct enforcement against infringers, whether locally, across borders, or in the digital environment. 32
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Consumers have long relied on brand recognition to assess product safety. Likewise, businesses use their brands as tools to gain consumer loyalty, building their reputations on the consistent quality of their products and services. The federal trademark system serves these purposes on a national scale, allowing businesses to take private action in policing their brands across state lines, and to inform law enforcement authorities of criminal counterfeiting activity. Unfortunately, for many marijuana-related businesses (“MRBs”) offering products and services that comply with state law but are illegal federally, such as those operating under the Arkansas Medical Marijuana Amendment of 2016,1 federal trademark protection and enforcement are unavailable. Federal trademark registration under the U.S. Trademark Act is permitted only in connection with goods and services that are lawful under federal law.2 As a consequence, the landscape of state and federal laws pertaining to marijuana-related trademarks is uniquely complex. To assess the applicable laws and regulations, MRBs must consider, first, where they will do business and second, what types of goods and services they will offer, whether these include marijuana-based products, hemp-based products, accessories intended primarily for use with marijuana, or other goods or services that can be offered apart from marijuana. In each configuration, a different set of state and federal trademark and health and safety rules may apply.
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Recent safety incidents demonstrate the vulnerability of the cannabis industry to false labels. In states where MRBs operate legally, state trademark laws make brand protection available—but only locally. With no federal protection, brand owners for marijuana-based products are unable to police their marks outside their states of operation, resulting in counterfeit and false labels that damage the reputations of legitimate producers and leave consumers vulnerable to products bearing fake or deceptive labels. Recent outbreaks of counterfeit and mislabeled goods show how producers of fake marijuana-related goods can take advantage both of gaps in enforcement resources and of the inability of consumers to seek out nationally-reputed brands.3 In May 2018, a Memphis woman was reported to have been sickened by a bottle of cannabidiol (“CBD”) oil bearing a counterfeit label,4 prompting the legitimate brand to issue guidelines for consumers to identify the real product versus fakes.5 The same month, the Centers for Disease Control and Prevention reported that 52 people in Utah were sickened by synthetic products that were falsely labeled as CBD.6 In states with longer histories of legalized marijuana use such as California, where marijuana accessory makers have gained some name recognition, counterfeit accessories, often of substandard quality, have begun to enter the interstate market in significant quantities.7 A 2017 study published in the Journal of the American Medical Association found that nearly
“The uncertainties surrounding trademark protection for marijuanarelated goods and services are real.” ... 70% of all cannabidiol products sold online are either over- or under-labeled; specifically, the levels of tetrahydrocannabinol (“THC”) content were under-reported on labels in 42 percent of the products studied, and were over-reported in 26 percent of the products studied.8 In a previous study, the same authors analyzed cannabinoid dose and label accuracy in edible medical cannabis products and found similarly concerning mislabeling trends.9 For MRBs, the lack of federal trademark protection can have a significant impact on enforcement efforts. If civil trademark actions are unavailable, these MRBs must rely on the limited resources of foreign-state and federal law enforcement authorities to sua sponte crack down on the illegal content of the goods—which aid can be difficult to engage for businesses operating in an industry that is, in practice, relying on federal leniency. Federal Trademarks Are Not Granted in Relation to Goods or Services that Are Illegal Under Federal Law, Regardless of Legality Under State Law For a trademark or service mark to be eligible for federal registration under the U.S. Trademark Act, the goods or services to which the mark is applied in commerce must comply with all applicable federal laws.10 The United States Patent and Trademark Office (“USPTO”) explains in its Trademark Manual of Examining Procedure (the “TMEP”) that whether a product or service is lawful under state law “is irrelevant to the question of federal registration when it is unlawful under federal law.”11 The TMEP explicitly addresses goods and services involving marijuana:
[R]egardless of state law, marijuana, marijuana extracts, and the psychoactive component THC [(the popular term for tetrahydrocannabinol)] remain Schedule I controlled substances under federal law and are subject to the [Controlled Substance Act]’s prohibitions. These prohibitions apply with equal force to the distribution and dispensing of medical marijuana.12 Citing a 2016 decision of the Trademark Trial and Appeal Board, which is often quoted for the admonition that for a mark to be eligible for federal registration, “any goods or services for which the mark is used must not be illegal under federal law,”13 the TMEP instructs examiners to consider evidence extrinsic to the application when considering whether an application involves goods or services that are unlawful under federal law.14 USPTO records show that examiners have refused registration of certain marks because the examiner’s research turned up ties with marijuana.15 However, limited examples show that a business that clearly offers marijuana-based products may obtain a federal registration for the same marks used on other, lawful goods or services.16 In some cases in which apparently marijuana-related goods were initially refused registration, federal examiners have even offered to allow the applicants to exclude cannabis from the applied-for goods and services in order to achieve a registrable mark.17 Given the significant number of cannabis-related trademark applications currently pending before the USPTO, it appears to be common practice to take one’s chances that an examiner
will forgive any evidence that the applicant deals in multiple goods and services (some of which are federally illegal) under the same mark. The benefits of federal trademark protection may justify these hopeful applications. In addition to enforcement advantages, the federal system offers a tool for new businesses that most states, including Arkansas, do not: the “Intent-to-Use” trademark application. A federal trademark application can be filed on an intent-to-use basis, allowing the applicant to assert early rights to a mark before actual use in commerce has begun.18 The “Intent-to-Use” application must eventually be supplemented with evidence of lawful use in commerce within the allotted number of six-month extension periods if it is to proceed to a registered trademark. It gives the applicant an important marketing advantage by awarding priority of rights in the trademark as of the date the application was first submitted. The applicant can begin to invest in and develop marketing materials before offering the goods or services in commerce, with the knowledge that subsequent users of the mark with similar goods or services likely will not have superior rights in trademark. If federal trademark protection is not available to an applicant because the claimed goods and services are unlawful under federal law, the state-level recourse is generally only available in those states where the applicant has legitimate operations and where the mark is already actively in use. Like many states, Arkansas’ trademark registration is available only to marks already in use in commerce on the applied-for goods and services.19 This shortcoming in state trademark protection means that MRBs may be unable
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to invest in pre-launch marketing expenditures to the same degree, or with the same level of confidence in trademark ownership, as is typical for other businesses. For many MRBs in Arkansas, the core product is not yet on the market. As a result, these MRBs may have to begin developing marketing materials before any state or federal trademark protection may be sought. State Trademarks are Effective Within State Borders Only The Arkansas Medical Marijuana Amendment of 2016 (the “AMMA”) has led Arkansas entrepreneurs to launch businesses related to marijuana in the state, and like any new businesses, to begin considering trademark protection right away. Without a federal cause of action, state trademark law and remedies apply, but only to cases of instate infringement. In Arkansas, the owner of a state-registered trademark may seek from a defendant: injunction, disgorgement of profits, and in the case of willful or bad faith infringement, treble damages and attorneys’ fees.20 Actions in out-of-state trademark infringement must be brought either under the federal Lanham Act by plaintiffs whose trademark rights are based on lawful use in commerce, or under the foreign state’s trademark laws. In cases of trademark infringement committed with knowledge of intent to cause confusion, federal law makes available actual damages and lost profits, disgorgement of profits from the infringement, and in the case of willful counterfeiting, treble damages.21 But until federal trademark protection is available, MRBs are constrained from taking action against counterfeit activities occurring in states where marijuana is not legalized, or where there are no legitimate operations. Under Recent Changes to Federal Law, Certain Hemp Products May be Eligible for Federal Trademark Protection Recent law and policy changes could mean a useful exception is now in place for certain marks applied for in connection with CBD derived from hemp. Amendments to the Agricultural Marketing Act and the Controlled Substances Act (the “CSA”) enacted under the 2018 Farm Bill remove “hemp” from the CSA’s definition of marijuana as a controlled substance.22 In response, on May 2, 2019, the U.S. Patent and Trademark Office issued new guidance for examination of 34
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trademark applications (herein, the “USPTO CBD Guide”), in a significant departure from the agency’s previous stated policy.23 The USPTO CBD Guide makes it possible for manufacturers of hemp-derived (i.e., those products containing less than 0.3% of THC) CBD oil and other low-THC hemp products that are legalized at the state level to use the federal trademark system to establish nationwide trademark rights and ward off counterfeiters across state lines.24 The USPTO CBD Guide notes, however, that not all hemp-derived CBD and low-THC products are lawful following the 2018 Farm Bill, as they could still be subject to lawful-use issues under the Federal Food Drug and Cosmetic Act (“FDCA”). The use in foods or dietary supplements of a drug or substance undergoing clinical investigations without approval of the U.S. Food and Drug Administration (FDA) violates the FDCA.25 As the new USPTO CBD Guide states, “[t]he 2018 Farm Bill explicitly preserved FDA’s authority to regulate products containing cannabis or cannabis-derived compounds under the FDCA.”26 With this caveat, the USPTO has reserved the right to reject such goods and services for trademark registration. Therefore, MRBs should avoid making health- or dietary-related claims in their identifications of goods and services for federal applications in connection with CBD products, or their applications could be rejected under the USPTO CBD Guide, and should expect the USPTO’s examiners to review extrinsic evidence as to the applicant’s use of the mark in connection with such claims. MRBs still may be best advised to register simultaneously, or as soon as possible, at the state level for trademark protection, even for hemp-derived CBDs. The 2018 Farm Bill amendments and subsequent policy changes took effect on the heels of CBD public safety incidents such as those in Utah and Memphis, described above, and subsequent attention from the Centers for Disease Control (the “CDC”). In its May 2018 report on the Utah incident, the CDC called mislabeled CBD products an “emerging health threat,” and recommended that states consider regulating the products to minimize the risk of future similar incidents.27 In March 2019, Arkansas’ governor signed Act 504, legalizing at the state level any hemp-derived cannabidiol that contains not more than 0.3% of THC, and which is not
subject to U.S. FDA oversight as a medication. While Act 504 created no new state oversight regarding CBD labeling or advertising, it did open the door to federal protection of legitimate CBD products against counterfeiting. Arkansas producers of CBD that are otherwise in compliance with Act 504 may now apply for federal trademark protection, with a filing date as early as December 20, 2018, as long as the applied-for goods and services indicate that the products are hemp-derived and contain less than 0.3% of THC.28 Applications for CBD products filed prior to December 20, 2018, may be amended to claim a filing date of December 20, 2018, in compliance with the USPTO CBD Guide. Arkansas Imposes Additional Labeling Requirements on MRBs Together with these state and federal trademark considerations, Arkansas MRBs must also consider labeling compliance as a significant aspect of their marketing plans. The Arkansas Department of Health has set forth extensive labeling requirements in its Rules and Regulations Governing Medical Marijuana Registration, Testing, and Labeling in Arkansas, which took effect May 8, 2017,29 and with the rules and regulations issued by the Alcoholic Beverage Control Division of the Arkansas Department of Finance and Administration.30 Businesses must also avoid labeling CBD-based products as food, drink, or dietary supplements, or they could run afoul of the FDCA. Could Current Federal Trademark Registrations Act As Placeholders for Future Civil Enforcement Against Counterfeit Marijuana Goods and Services? The uncertainties surrounding trademark protection for marijuana-related goods and services are real. However, the rush of trademark applicants to register for federal protection of marijuana-related goods and services hints that there is optimism among MRBs, founded or not, that marijuana-based products and services might one day be legalized at the federal level. If such a day were to come, registrations associated with non-marijuana goods and services might bar future third-party applications for the same marks on marijuana-based goods and services.31 The likelihood of confusion with an alreadyregistered mark is grounds for refusal of a trademark application, and may be found
Veteran
justice alert. Defective 3M Dual-Ended Combat ArmsTM Earplugs In a startling settlement in July 2018, the 3M Corporation agreed to pay $9.1 million in a False Claims Act lawsuit to settle allegations that it knowingly supplied the United States military with defective earplugs. Servicemembers and combat veterans who were issued 3M Dual-Ended Combat ArmsTM Earplugs Version 2 (CAEv2) have reported multiple side effects, including • Hearing loss • Tinnitus, or ringing in the ears • Permanent hearing damage • Deafness Military personnel who have been diagnosed with these problems after using the defective earplugs may file lawsuits against the manufacturer alleging that 3M knowingly supplied the defective earplugs, leaving servicemembers vulnerable to injury. We can help injured parties seek justice. Medical devices and drugs that cause harm must be challenged. Veterans need an experienced advocate. Associate the unique expertise of The Law Office of David H. Williams for 3M CAEv2 Combat Earplug and other complex medical and product defect cases. 211 S. Spring Street Second Floor Little Rock, AR 72201 (877) 492-3030 (501) 372-0038 david@dhwlaw.net dhwilliamslawfirm.com
David H. Williams
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where the registered and applied-for mark are the same or similar and the goods and services are related or could be expected to be related in the eye of the target consumer. According to the USPTO examining guidelines, “[t]he issue is not whether the goods and/or services will be confused with each other, but rather whether the public will be confused as to their source.”32 Thus, a federal trademark registration can effectively bar third-party use of the mark not only in connection with the goods or services stated in the registration (for example, cigarette vaporizers or desserts), but also in connection with any other goods or services that are commonly available from the same source as the stated goods or services (for example, marijuana vape cartridges or marijuana confections). The current reality, nevertheless, is that the resources available to producers of marijuana-based goods to enforce trademark rights are severely hampered relative to those available to producers of other consumer goods. This situation promises to place a disproportionate burden on federal and state authorities to take on consumer protection initiatives against fake and mislabeled marijuana-based products, unless and until the industry is empowered to take federal civil trademark actions to clean up the market itself. Endnotes: 1. Ark. Const. amend. 98. 2. 15 U.S.C. § 1051; 37 C.F.R. § 2.69; Trademark Manual of Examining Procedure § 907 (October 2018) (“TMEP”) (“If the record in an application based on Trademark Act Section 1(a) indicates that the mark itself or the identified goods or services violate federal law, registration must be refused under Trademark Act Sections 1 and 45, based on the absence of lawful use of the mark in commerce.”). 3. Amelia McDonell-Parry, Counterfeit Weed Vape Cartridges Are Flooding Black Markets, Rolling Stone, Dec. 5, 2018 (available at: https://www.rollingstone.com/culture/ culture-news/weed-pot-vape-counterfitunsafe-black-market-763619/). 4. Andrew Ellison, Woman Says She Was Sickened By Counterfeit CBD Oil, News Channel 3 WREG Memphis, May 8, 2018 (available at: https://wreg.com/2018/05/08/ woman-warns-other-potential-victims-afterusing-counterfeit-pain-reliever/). 36
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5. Beyond Botanicals Blog, How to recognize Counterfeit CBD Oil, May 3, 2018 (available at https://www.beyondbotanicals. com/2018/05/03/how-to-recognize-counterfeit-cbd-oil/). 6. Roberta Z. Horth, PhD, et al., Notes from the Field: Acute Poisonings from a Synthetic Cannabinoid Sold as Cannabidiol — Utah, 2017–2018, 67 DOI Morbidity and Mortality Weekly Report 587-588 (May 25, 2018) (available at http://dx.doi. org/10.15585/mmwr.mm6720a5). 7. Terry Spencer, Bogus bongs or bogus lawsuits? Pipe maker sues over fakes, AP News, Jan. 27, 2017 (available at: https://www. apnews.com/f5029b0a157846ddbafc8fc1cf437b9e). 8. Penn Study Shows Nearly 70 Percent of Cannabidiol Extracts Sold Online Are Mislabeled, Penn Medicine News, Nov. 7, 2017 (available at: https://www.pennmedicine. org/news/news-releases/2017/november/ penn-study-shows-nearly-70-percent-ofcannabidiol-extracts-sold-online-are-mislabeled). 9. Ryan Vandrey, PhD, Cannabinoid Dose and Label Accuracy in Edible Medical Cannabis Products, Journal of the American Medical Association, June 23/30, 2015 (available at: https://jamanetwork.com/ journals/jama/fullarticle/2338239). 10. 15 U.S.C. § 1051 (“The owner of a trademark used in commerce may seek registration. . . .”); 15 U.S.C. § 1127 (“The word ‘commerce’ means all commerce which may lawfully be regulated by Congress.”). 11. TMEP § 907. 12. Id. 13. In re Morgan Brown, 119 USPQ2d 1350, 1351 (TTAB 2016) (affirming the refusal of HERBAL ACCESS for “retail store services featuring herbs”). 14. TMEP § 907 (“If, in response to a requirement for information or a refusal, the applicant indicates that the relevant goods or services comply with federal law, but there is extrinsic evidence indicating that the goods or services do not, in fact, comply with federal law, the examining attorney must refuse registration (or maintain the prior refusal).”). 15. See, e.g., In re JJ206, LLC, 120 USPQ2d 1568, 1569 (TTAB 2016) (affirming refusal to register POWERED BY JUJU and JUJU JOINTS for cannabis vaporizing and delivery services for lack of lawful use in com-
merce); In re Brown, 119 USPQ2d 1350. 16. See, e.g., Trademark Registration No. 5731048, for F (stylized design), in Class 30 for “Brownies; Burritos; Nachos; Quesadillas; Tacos; none of the foregoing comprised of cannabis,” Registered April 23, 2019 (Applicant’s specimen shows the mark used on the wrappers of “pot brownies.”); Trademark Registration No. 87528739 for AYURVANNA, in Class 30 for “Brownies; Candy; Chocolate Bars; Cookies; none of the foregoing comprised of cannabis based ingredients,” Registered July 17, 2018 (Examiner issued Office Action refusing registration on the basis of extrinsic evidence showing use of the mark in connection with cannabis. In response, applicant stated: “Applicant produces both medicated (containing cannabis) and baked goods that are not medicated. Applicant is seeking trademark protection for the unmedicated baked goods produced under the same mark.” The application was subsequently amended to exclude the unlawful ingredients, and proceeded to registration.). 17. See, e.g., Trademark Registration No. 5710083, for SATORI, in Class 30 for “Chocolate bars; Chocolate confections; Chocolate covered ants; Chocolate covered cocoa nibs; Chocolate covered fruit; Chocolate covered roasted coffee beans; Chocolates and chocolate based ready to eat candies and snacks; none of the foregoing containing cannabis or THC,” Registered March 26, 2019; Trademark Registration No. 5734217 for CUBAN BLUNTS (stylized design), in Class 34 for “Cigar accessories, namely, Cigar Rolling Machines, Cigar lighters, Cigar Cutters, Humidors, and Cigar Boxes; none of the foregoing for use with cannabis,” Registered April 23, 2019. 18. 15 U.S. Code § 1051(b) (also known as Section 1(b) of the Lanham Act). 19. Ark. Code Ann. § 4-71-203(a). 20. Ark. Code Ann. § 4-71-214(a). 21. Lanham Act, 15 U.S.C. 1117. 22. The Agriculture Improvement Act of 2018, Pub. L. 115-334 (“2018 Farm Bill”). 23. USPTO Examination Guide 1-19, “Examination of Marks for Cannabis and Cannabis-Related Goods and Services after Enactment of the 2018 Farm Bill” (May 2, 2019) (available at: https://www.uspto. gov/sites/default/files/documents/Exam%20 Guide%201-19.pdf ). 24. Id.; see, e.g., Trademark Registration No. 5783451, for HEMPTAILS, in Class
33, “Flavored brewed malt beverage brewed with sterilized hemp seeds and containing no other hemp or cannabis ingredients,” Registered June 18, 2019. 25. 21 U.S.C. § 331(ll). 26. USPTO CBD Guide. 27. Horth, supra note 6, 28. USPTO CBD Guide. 29. Rules And Regulations Governing Medical Marijuana Registration, Testing, And Labeling In Arkansas, Arkansas State Board of Health (available at: https://www. healthy.arkansas.gov/images/uploads/rules/ Medical_Marijuana_Emergency_Rule_427-2017_(Signed).pdf ). 30. Rules And Regulations Governing The Oversight Of Medical Marijuana Cultivation Facilities And Dispensaries By The Alcoholic Beverage Control Division, Arkansas Medical Marijuana Commission (available at: https://www.dfa.arkansas.gov/ alcoholic-beverage-control/abc-medicalmarijuana/). 31. TMEP § 1207.01(d)(iii) (“Thirdparty registrations that cover a number of different goods or services may have some probative value to the extent that they may serve to suggest that goods or services are of a type that may emanate from a single
source, if the registrations are based on use in commerce.”); TMEP § 1207.01(a)(vi) (“Evidence of relatedness might include news articles and/or evidence from computer databases showing that the relevant goods/services are used together or used by the same purchasers; advertisements showing that the relevant goods/services are advertised together or sold by the same manufacturer or dealer; and/or copies of prior use-based registrations of the same mark for both applicant’s goods/services and the goods/services listed in the cited registration,” citing In re Davia, 110 USPQ2d 1810, 1817 (TTAB 2014)). 32. TMEP § 1207.01 (“In some instances, because of established marketing practices, the use of identical marks on seemingly unrelated goods and services could result in a likelihood of confusion.”).
New Sponsorship Opportunities Coming Soon for next year’s Annual Meeting. June 10-12, 2020 Hot Springs Go to www.arkbar.com/ annualmeeting for more information.
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LEGISLATIVE CORNER ARKBAR IS THE VOICE OF THE ARKANSAS LAWYER
2019
LEGISLATIVE UPDATE The Arkansas Bar Association is your advocate at the state Capitol, and because of your help and support we had a successful 2019 legislative session.
The Regular Session of the 92nd General Assembly convened on Monday, January 14, 2019, and adjourned sine die on Wednesday, April 24, 2019. On behalf of the Arkansas Bar Association and the Association’s Legislation Committee, thank you for your legislative efforts and support. During the 2019 Regular Session, the Legislature filed 1,670 bills and 192 resolutions, passing just over half of the filed bills. The Association worked full time to monitor every piece of legislation affecting justice and the legal profession. The Association could not have done 38
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it without the help and support of the Legislation Committee, chaired by Aaron Squyres. This year’s Legislation Committee also consisted of Taylor Chaney, Suzanne Clark, Lee Curry, Glen Hoggard, Karen K. Hutchins, Jamie Huffman Jones, Patti Julian, Paul Keith, Carla Martin, Cliff McKinney, Brian Rosenthal, and George Rozzell. This committee reviewed every bill filed, every amendment made, and worked tirelessly throughout the session to protect the practice of law and the administration of justice. The Legislation Committee supported four bills and opposed 13. Of the four
bills the Association supported, three were signed into law. Of the 13 bills the Association opposed, none were signed into law. The Legislation Committee, with the help of the membership, also successfully amended one proposed constitutional amendment that would have changed term limits for judges. The Legislation Committee could not have done it without the backing of the entire membership. Many thanks to all the members who reviewed bills, provided comments, and testified on behalf of the Association.
The Arkansas Bar Association’s Legislative Package One of the primary priorities of the Association is to assist in the enactment of laws and improve the legal system in Arkansas. The Association’s 2019 legislative package included four proposed bills. Each proposal was submitted by the Jurisprudence and Law Reform Committee and approved by the House of Delegates. The four approved bills included the Uniform Protected Series Act, the Uniform Directed Trust Act, an Independent Expenditure bill, and a clarification bill regarding the registration requirements for lawyers and lobbyists. With the help and support of the members of the Association, two of the four proposals were passed by the Legislature and signed by the governor. The Uniform Protected Series Act and the Uniform Directed Trust Act was passed nearly unanimously by both the House and the Senate. The Independent Expenditure bill, HB1705, passed the House Judiciary Committee, but could not garner the 2/3 vote requirement to pass the entire House of Representatives. The clarification bill regarding the registration requirements for lawyers and lobbyists was sent to interim study for further review and consideration. Uniform Protected Series Act – Act 665 The Uniform Protected Series, HB1611, was sponsored by Representative John Maddox. According to the Uniform Law Commission, the Uniform Protected Series Act (UPSA) is the most comprehensive statute governing series limited liability companies. A series limited liability company offers the traditional vertical liability shield of an LLC, and a new, horizontal liability shield for protected series of the company. The UPSA clarifies a new business entity concept, requires transparency, promotes good recordkeeping and easily integrates into a state’s existing limited liability company statute. Uniform Directed Trust Act – Act 1021 The Uniform Directed Trust Act, HB1765, was also sponsored by Representative John Maddox. The Uniform Directed Trust Act (UDTA) addresses the rise of directed trusts. According to the Uniform Law Commission, the act offers a simple framework for allocating fiduciary power and duty between a trust
director and a trustee, and comprehensively addresses the many practical questions raised by the presence of a trust director. This division of authority between a trust director and a trustee raises a host of difficult questions for which the UDTA provides clear, practical answers. Independent Expenditure – HB1705 The Independent Expenditure bill, HB1705, was sponsored by Representative Jimmy Gazaway. HB1705 was an Act to protect the public’s confidence in the integrity of the appellate judicial elections. HB1705 required additional reporting requirements and transparency concerning independent expenditures for appellate judicial elections. HB1705 passed the House Judiciary Committee, but was unable to receive the needed support of the entire House of Representatives. Many thanks to the following sponsors of HB1705: Representative Jimmy Gazaway, Representative Sarah Capp, Representative Carol Dalby, Representative David Hillman, Representative Joe Jett, Representative LeAnne Burch, Representative David Whitaker, Senator Jonathan Dismang and Senator Bruce Maloch. Constitutional Amendment The Arkansas Term Limits Amendment – SJR15 Senate Joint Resolution 15 was sponsored by Senator Alan Clark. SJR15, also known as The Arkansas Term Limits Amendment, was approved by the Legislature as a proposed constitutional amendment to be referred to the voters in 2020. SJR15 limits state lawmakers to 12 consecutive years in office before requiring a four-year break. Currently, legislators can serve up to 16 years in the House or Senate. SJR15 initially included an amendment that would have limited terms for Supreme Court justices and Court of Appeals judges, as well as circuit and district judges. The Association opposed SJR15 as amended with the inclusion of term limits for judges. The Association, along with several others in the legal profession, testified against SJR15 as amended and asked that the term limits amendment for judges be removed from the proposed constitutional amendment. With the help of the membership, the Association was successful in this effort.
Legislative Resources The next Regular Session of the General Assembly will convene in January 2021. Members, Sections, and Committees of the Association are encouraged to participate in the development of the Association’s legislative package. Proposed legislation should be submitted in bill form and address issues concerning matters of jurisprudence and procedure, including reforms of the substantive law, and improvement in practice and in administration of the Courts. Proposed legislation must be submitted by January 31, 2020. The Association’s by-laws charge the Jurisprudence and Law Reform Committee with reviewing proposed bills and reporting their findings to the House of Delegates. The Association’s package for the 2021 Session of the Arkansas General Assembly will be adopted at the June 2020 meeting of the House of Delegates. Also, to promote effective representation of the Association and its members on legislative matters, a Legislative Advocacy Network has been implemented. The Network includes special contacts comprised of lawyers across the state who have established relationships with their representatives or senators and are willing to make an extra effort to communicate with those members regarding matters of interest to the Association and its members.
ArkBarPAC
Lastly, please consider becoming a supporting member of the non-partisan political action committee. The Arkansas Bar PAC is your opportunity to be the change you wish to see. Becoming politically involved is the best way to ensure your voice is heard and that you are part of the solution.
Jay Robbins is the Director of Government Relations for the Arkansas Bar Association.
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2020 ArkBar Legislative Timetable
The voice of the Arkansas lawyer
One of the most important things The Arkansas Bar Association does each year is represent its members at the Arkansas Capitol during the legislative session. The Association speaks with a unified voice to best represent the interests of the legal community and the profession of law. Legislative or administrative proposals concerning all matters of jurispru-
dence and procedure, including reforms of the substantive law and improvement in practice and in administration of the courts, originate with Association members, sections and committees. If proposals are recommended by the Jurisprudence and Law Reform Committee and adopted by the House of Delegates, they become part of the Association’s Legislative Package.
Deadlines have been established by the Arkansas Bar Association to facilitate consideration and inclusion for the ArkBar’s Legislative Package, and thereby sponsored by the Association. For the 2021 legislative session of the Arkansas General Assembly those deadlines are as follows:
JANUARY 31, 2020
APRIL 2020
JUNE 2020
Initial deadline for submission of legislation to the Jurisprudence & Law Reform Committee. All proposals must be in bill format.
Board of Governors considers the report of the Jurisprudence & Law Reform Committee and makes recommendation to the House of Delegates.
House of Delegates acts upon recommendation. Up to 10 bills selected for Association sponsorship. The House may also add up to three additional bills.
For more information or to submit proposals, contact Jay Robbins at the Arkansas Bar Association’s office at (501) 801-5665.
40
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Vol. 54 No. 3/Summer 2019 The Arkansas Lawyer
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Access to Lawyers, Access to Justice: New Developments and Future Plans By Marquisa Wince
The undersupply of attorneys across the state relative to the unmet civil legal needs of Arkansans has remained steady over the years.1 The Arkansas Supreme Court’s recent adoption of rule changes may help address that undersupply. A rule change adopted by the Arkansas Supreme Court in April will make it easier for out-of-state attorneys to become licensed in Arkansas.2 Starting with the February 2020 exam, Arkansas will begin administering the Uniform Bar Exam (UBE). Scores from the UBE exam may be transferred to 35 other jurisdictions, including Missouri, Kansas, and Tennessee. Arkansas will begin accepting transferred scores in October 2019, requiring scores to be 270 or higher. Bar takers across the country have taken advantage of the portability of UBE scores with nearly 12,000 transfers since 2011.3 The UBE eliminates the requirement to take another bar exam for attorneys who move from one jurisdiction to another. With this change, employers across Arkansas now have a greater pool of attorneys to recruit from. Another initiative that the Arkansas Supreme Court has undertaken in an effort to improve access to legal representation is the adoption of a rule allowing temporary admission to the bar for spouses of military service members. Effective upon issuance of its March 9, 2019, opinion, attorneys who are dependent spouses of military service members on full-time, active duty may gain temporary admission to practice in Arkansas.4 Admission under this rule lasts 24 months from the date of admission and entitles attorneys to the benefits and responsibilities of active Arkansas attorneys. Arkansas is the 37th jurisdiction to enact a rule of this kind.5 More changes may be on the horizon as the Supreme Court considers a rule change that would give attorneys Continuing Legal Education (CLE) credit for pro bono service. Arkansas Supreme Court Chief Justice John Dan Kemp noted in his June 14, 2019, State of the Judiciary Address that the Court is 42
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exploring the possibility of granting CLE credit to attorneys who perform pro bono legal services to Arkansans in need.6 A 2017 survey conducted by the American Bar Association in partnership with the Arkansas Access to Justice Commission indicated that a rule authorizing CLE credit for pro bono services was the chief initiative that respondents believed should be undertaken to encourage greater pro bono engagement.7 As a result, the Arkansas Access to Justice Commission adopted a resolution in October 2018 in support of such a rule. If the rule is ultimately adopted, attorneys will be able to earn a portion of the 12 hours of CLE they are required to complete each year by performing pro bono publico service. This practice has been successfully implemented in 17 other states and would be a step toward increasing the access to justice every Arkansan deserves. Another potential change would further augment efforts to better serve low-income residents in need of legal assistance. A task force convened by Arkansas Bar Association President Brian Rosenthal has partnered with the Arkansas Access to Justice Commission to study the possibility of authorizing retired and inactive Arkansas attorneys to provide pro bono services and develop a proposed rule. The “emeritus attorney” rule would allow for retired and inactive attorneys to provide pro bono services in cases referred by a “sponsoring entity.” Sponsoring entities would include legal aid services providers, such as Legal Aid of Arkansas, Inc., Center for Arkansas Legal Services, Inc., and Lone Star Legal Aid, Inc. Participating attorneys would only be required to pay fees necessary to maintain retired or voluntary inactive status and would be exempt from any CLE requirements. The task force plans to submit its proposal to the Arkansas Supreme Court for consideration during its Fall 2019 Term. Arkansas is steadily working to expand opportunities for Arkansas attorneys and access for the thousands of Arkansans with
unmet civil legal needs. Increasing the amount of attorneys serving residents requires a continuous push for rules that incentivize and ease the process for attorneys to practice. Endnotes: 1. Arkansas consistently ranks among the states with the lowest number of attorneys per capita. According to data collected by the Arkansas Access to Justice Commission, there are currently 22 resident, active attorneys for every 1,000 citizens. 2. In re Rules Governing Admission to the Bar & Admission to the Bar Regulation 7, 2019 Ark. 123. 3. Barbri, What the UBE Means for Your Legal Job Search, Career Mobility (March 15, 2019), https://www.barbri.com/the-ube-andyour-marketability/. 4. In re Rules Governing Admission to the Bar: Rule XVII, Military Spouse Temporary Admission, 2019 Ark. 74. 5. Gerner, K., Arkansas Adopts Rule for Military Spouse Attorney Licensing (March 7, 2019), https://www.msjdn.org/2019/03/ arkansas-adopts-rule-for-military-spouseattorney-licensing/. 6. Chief Justice John Dan Kemp, State of the Judiciary (June 14, 2019), at https://www. arcourts.gov/sites/default/files/State%20 of%20the%20Judiciary.pdf. 7. April Faith-Slaker, American Bar Association, Supporting Justice in Arkansas: A Report on the Pro Bono Work of Arkansas’s Lawyers (July 2017), at https://arkansasjustice.org/wp-content/uploads/2019/07/ProBono-Survey-Report_AR_2017.pdf. Marquisa Wince is a Fendler Fellow with the Arkansas Access to Justice Commission and a second year law student at the UA William H. Bowen School of Law.
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Vol. 54 No. 3/Summer 2019 The Arkansas Lawyer
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Law School Updates
UA Little Rock William H. Bowen School of Law Dean Beiner
My first year as Dean of the UA Little Rock William H. Bowen School of Law has been exciting, with some great developments for the students and faculty. Here are some of the highlights. Last summer began with my sitting in on the business boot camp for Bowen’s first group of Rural Practice Incubator Project attorneys. These recent graduates spent the last year serving clients in Stuttgart, Wynne, Nashville (Arkansas—not Tennessee), Glenwood, and the Arkansas Delta. Under the guidance of Clinic Professor Amy Pritchard, the Project plays a critical role in addressing access to justice in Arkansas by helping new attorneys develop innovative, economically viable law practices in these underserved counties. Bowen’s applications and enrollment were both up for the 2018-2019 school year. We received 772 applications, with 141 1Ls matriculating. Of these students, 32% are first generation college graduates, 50% are female, 21% are members of minority groups, and 9% are veterans. The class was diverse, although Dean of Admissions Matthew Kerns and I continue to work on law school pipelines to further diversify our student body. Enrollment for Fall 2019 likewise looks excellent. With the help of UA Little Rock Director of Athletics Chasse Conque, Assistant Dean Diana Snyder and I started an exciting partnership with Trojan Athletics to provide students with a unique internship experience in the highly regulated world of NCAA Division I intercollegiate athletics. The program will introduce interns to a broad spectrum of NCAA, Sun Belt Conference, and institutional regulations. Interns will serve an integral role in the enhancement of UA Little Rock’s compliance oversight responsibilities, while gaining valuable experience in athletics administration. The one-year internship also features a trip to New Orleans to the annual Sun Belt Conference rules meeting. Our July bar takers benefited from our free PASS program, which is designed to strengthen their exam-taking skills through practice tests, writing exercises, and feedback. This year, we also arranged for students to use Adaptibar, a bar prep program that uses actual MBE questions for practice, at a reduced rate. Many students took advantage of the program. Professor Kelly Terry, the Ben J. Altheimer Professor of Law, began an appointment as Bowen’s first Associate Dean for Experiential Learning & Clinical Programs. This new deanship strengthens Bowen’s experiential learning curriculum. Dean Terry already has begun transitioning Bowen’s clinical programs to a law office management structure, enhancing the student experience in our legal clinics. Our clinics continue to provide opportunities for Bowen students to engage in our core values of access to justice, public service, and professionalism. Finally, I’m very proud of Professor Alicia Mitchell, Tax Clinic Director, who received the University-wide Faculty Excellence Award for Public Service. In addition, Assistant Dean Wanda Hoover was awarded the Staff Excellence in Public Service for her volunteer work in the community. Both Professor Mitchell and Dean Hoover exemplify the type of public service that we emphasize at Bowen. They are great role models for our students. 44
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University of Arkansas School of Law Dean McCabe
Greetings from Fayetteville! I am looking forward to my second year as the dean of the University of Arkansas School of Law. At the outset, I want to thank the Arkansas legal community for welcoming me and making my first year a joy. In the past year, I’ve been so pleased to see the commitment our university has to fulfilling its land-grant and flagship mission. The law school plays a unique role in this endeavor by shaping many future Arkansas lawyers, producing wellregarded faculty scholarship on critical legal issues, and providing access to justice through our clinics, pro bono program, and public service programming. It will be a busy fall. We will host a Patent Bootcamp for Women and Minorities in STEM on Sept. 13. Professor Uché Ewelukwa developed this one-day event to cover the basics of patent law and the patent application process in the fields of science, technology, engineering, and mathematics. Supported by a grant from the Women’s Giving Circle, Patent Bootcamp is a prime example of how our law professors are sharing their legal expertise with Arkansas. If you know of clients or others who will benefit from this training, then please share the date. Our Board of Advocates, co-advised by professors Amanda Hurst and Danielle Weatherby, is planning a spirited year of competitions. The William H. Sutton Barristers’ Union Trial Competition and the Ben J. Altheimer Moot Court Competition will be held in October and February, respectively. I hope Arkansas Bar Association members will again share their time and expertise as guest judges. October promises to be a busy month. In addition to the Sutton Competition (and football), the school will host our annual Arkansas Law Review Symposium. Please join us on Oct. 25 for “The Evolving Regulation of Crypto,” which will provide a fascinating look into the varying regulatory regimes applicable to crypto transactions with legal, business, governmental, and academic experts. Professor Carol Goforth is a leader in the emergent field of crypto currency and the law. Her scholarship has appeared in a variety of publications, she has been featured in interviews and podcasts, and she has contracted with West Publishing to write a book on this cutting-edge topic. We’re also pleased to bring this topic to the university campus where the Walton College of Business’ Center for Blockchain Excellence is setting the standard for research in many applications of this emergent and powerful recordkeeping technology. My best wishes for a productive fall to all of you; I’ll look forward to providing additional updates from Fayetteville in The Arkansas Lawyer.
2018 William H. Sutton Barristers’ Union Trial Competition
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Vol. 54 No. 3/Summer 2019 The Arkansas Lawyer
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Arkansas Judges and Lawyers Assistance Program 2019 Annual Advocate’s Dinner By Jennifer Donaldson, LCSW, Executive Director, AR JLAP
Arkansas Judges and Lawyers Assistance Program (JLAP) is proud to announce the 2019 Annual Advocate’s Dinner, to be held on October 25, 2019, at Embassy Suites in Little Rock. We are inviting all attorneys, judges, family members, friends, leaders of the legal community, and advocates for mental health to come enjoy a reception, silent auction, awards ceremony, and dinner. Each year, to support JLAP’s statewide work, the JLAP Foundation hosts an Advocates Dinner to raise funds in support of suffering lawyers, judges, their families, and law students, and to celebrate and thank the supporters and advocates of JLAP. For 2019, we will present the Community Service Award to Michael Moore and the Distinguished Service Award to The Law Firm of Friday Eldredge & Clark. Mr. Michael Moore has served as Chair of the JLAP Committee and as Chair of the JLAP Foundation. Arkansas JLAP is founded to help Arkansas’ legal community live with and recover from mental-health and substance-abuse challenges. JLAP adheres to a three-part mission: (1) to protect the interests of clients, litigants, and the general public from harm caused by impaired lawyers or judges; (2) to assist impaired members of the legal profession to begin and continue recovery; and (3) to educate the bench and the bar about the causes of and remedies for impairments affecting members of the legal profession. 46
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The legal profession suffers from high rates of mental health issues—legal professionals suffering from stress/burn out, mood instability, substance abuse, and cognitive and emotional impairment are far more susceptible to business disruption, lost productivity, loss of significant relationships, and even malpractice. Rising complaints of depression, anxiety, social alienation, sleep deprivation, overall dissatisfaction with life, and thoughts or attempts of suicide contribute to the critical need for mental health services within the profession. Arkansas JLAP provides statewide assistance to the legal community seeking mental health services, by way of intervention or referral. As proactive, educational efforts continue to
raise awareness of the importance of mental health, the demand for services statewide grows each year. Arkansas JLAP relies heavily on the grant support established through the JLAP Foundation to provide vital services to those outside of the Central Arkansas area. Through networking with mental health professionals across the state, JLAP clients can receive essential therapeutic services close to home, allowing for less disruption to their daily practice. JLAP’s important work for the legal community of Arkansas is only possible through the generous support of members, volunteers, and advocates of that community, and we are deeply grateful for JLAP’s sponsors and donors. Each year, the financial support raised from the Advocate’s Dinner allows JLAP to provide funding for statewide therapeutic services and promotes growth and expansion of the program. To purchase tickets to the 2019 Annual Advocates Dinner or to become a sponsor, please visit our website at arjlap.org or contact the JLAP office at 501-907-2529. Jennifer Donaldson, LCSW is the Executive Director of AR JLAP
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ARKANSAS CHAPTER
The following attorneys are recognized in 2019 for
Excellence in the field of Alternative Dispute Resolution
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Disciplinary Actions JUDICIAL DISCIPLINE & DISABILITY COMMISSION ACTIONS On June 14, 2019, the Arkansas Judicial Discipline and Disability Commission issued an Order regarding Circuit Judge Wendell Griffin, in Commission case numbers 17-171–17-173 (COMBINED).
Thomas C. Morris, III, Bar No. 84110 of Bella Vista, surrendered his law license in D-19-413 in lieu of discipline relating to CPC2017010, CPC2017-011, and CPC2018-017 involving Morris’ failure to adequately communicate with clients and failure to properly safeguard client funds, relating to three estates/clients, in his IOLTA account with significant deficiencies spanning from April 2012 - April 2017 and at times exceeding $400,000. The Supreme Court accepted his surrender on May 30, 2019.
The full press releases can be found online at http://www.state. ar.us/jddc/decisions.html.
ATTORNEY DISCIPLINE ACTIONS
Final actions from April 5, 2019 - June 30, 2019, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line either at http://courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.] SURRENDER:
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Your ArkBar Your Voice The House of Delegates voted in June to recommend adoption of a new constitution changing the governance structure of your ArkBar. Electronic ballots distributed to members November 15, 2019.
Voting begins November 15, 2019.
For more information and updates visit arkbar.com/for-attorneys/ new-governance-structure-proposal Vol. 54 No. 3/Summer 2019 The Arkansas Lawyer
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Arkansas Bar Foundation 2224 Cottondale Lane, Little Rock, Arkansas 72202 www.arkansasbarfoundation.com • 501.801.5670
Danyelle J. Walker Elected Arkansas Bar Foundation President Danyelle J. Walker began her term as President of the Arkansas Bar Foundation Board of Directors for the 2019-2020 bar year immediately following the Annual Meeting in mid-June 2019. Ms. Walker earned her B.S. Degree in Accounting, Summa Cum Laude, from the University of Arkansas at Pine Bluff and her Juris Doctorate from the UALR Bowen School of Law. Danyelle, of The Law Office of Danyelle Walker, PLLC, has practiced exclusively in the area of consumer bankruptcy for approximately 23 years. Prior to entering private practice, she served as a law clerk for the late Arkansas Supreme Court Justice Andree Layton Roaf. She has been a Fellow of the Arkansas Bar Foundation since 2007 and is a Sustaining Fellow. Danyelle has served the Foundation as Secretary-Treasurer and Vice-President of the Board of Directors and as a past member of the Trust Committee. She is a past member of the Arkansas Bar Association Board of Governors and House of Delegates and a past president of the Debtor/Creditor Bar of Central Arkansas. Danyelle was honored with the Equal Justice Distinguished Service Award presented by the Arkansas Bar Foundation and Arkansas Bar Association. The same year she received the Arkansas Pro Bono Partnership Attorney of the Year Award. Danyelle is a past president of the Alumni Board of the UALR Bowen School of Law where she currently serves as a member of the Dean’s Advisory Committee. She currently serves on the Supreme Court’s Professional Conduct Committee, and is a member of the Harold Flowers Law Society, Delta Sigma Theta Sorority, Inc., VOCALS Board of Directors, Arkansas Advocates for Children and Families, and a former Board member of Our House. 50
The Arkansas Lawyer
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Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period May 1, 2019 through July 31, 2019. In Memory of Coralee Baldwin Judge Bill Wilson and Judge Cathi Compton
In Memory of Judge John F. Forster, Jr. Sally and Jim McLarty Brian M. Rosenthal Mike Wilson
Joy and Don Matthews Judge Robin L. Mays PCI Custom Homes/ Pursell Construction, Inc. David J. Peterson Karen and Brian Ratcliff Jean and Rob Robinson Mary Ann and Don Schnipper Cathy and John Slater Julie and Bill Wiedower Jenny and Don Williams RA Wilson Enterprises Teresa Wineland
In Memory of Jim Handloser Judge Bill Wilson and Judge Cathi Compton
In Memory of Mildred Smith Judge Bill Wilson and Judge Cathi Compton
In Memory of Melva Harmon Brian M. Rosenthal
In Memory of Lohnes Thomas Tiner, Sr. Judge Bill Wilson and Judge Cathi Compton
In Memory of Jane Hall Shackleford Designated to the Shackleford/Phillips Scholarship Fund Mr. and Mrs. Aubra Anthony, Jr. Becky and Mike Arthur Linda and Donald Bacon Sherry P. Bartley Jamie and A. Cale Block Suzanne and Pete Carroll Mary Jean and Bill Dabbs Dr. and Mrs. Doyle Dillahunty Janie and Tommy Foltz Anne and Dick James Megan and Robert Janes
In Memory of Garrett Wilson Rebecca B. Hurst
In Memory of Edward Wayne Boyce, Jr. Sally and Jim McLarty Charles B. Roscopf Brian M. Rosenthal Tom D. Womack
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Scholarship Contributions and Gifts Sebastian County Bar Association Scholarship Fund Sebastian County Bar Association Arkansas Bar Foundation grant applications for law-related projects are due Friday, October 4, 2019.
Arkansas Bar Foundation Third Annual Friendraiser
OktoberFellowsFest! Friday, October 11, 2019 5–7:00 pm Fassler Hall, Little Rock • $50 per person Call Ann at 501.801.5670 for ticket information
in memoriam Michael Anthony Bell of Springdale died May 25, 2019, at the age of 33. He graduated from Gosnell High School, Henderson State College with his BA and MA, and UALR Bowen School of Law with his Law degree. He practiced law for a few years in the Little Rock area before moving to be near family in Springdale. Wayne Boyce of Newport died June 10, 2019, at the age of 92. He graduated from Tuckerman High School in 1943, and attended the Citadel in Charleston, S.C. before enlisting in the Army. He shipped to the South Pacific as an infantryman and reclassified upon arrival as a combat medic. He was awarded the Combat Medic Badge, Bronze Star, and Philippine Victory Medal. After his service, he attended and graduated from the University of Arkansas, Fayetteville, with an undergraduate degree in history and political science, and with a Juris Doctorate degree from the University of Arkansas Law School in 1951. Returning to Jackson County, he was appointed Deputy Prosecuting Attorney for Jackson County. He later served two terms as Prosecuting Attorney for the Third Judicial District before entering the private practice of law. His legal career spanned more than 50 years, the last nine with his son in the offices of Boyce & Boyce. He served as President of the Arkansas Bar Association in 1978-79. After his initial retirement in 1992, Boyce returned to the University of Arkansas where he served on the faculty of the law school. Upon second retirement, Boyce explored an additional interest in creative writing. He continued his service as editor and author of the Stream of History, the publication of the Jackson County Historical Society. He also authored several essays, poems, and magazine articles.
Herman W. Eubanks, of North Little Rock, passed away on June 12, 2019, at the age of 72. Herman graduated from Sylvan Hills High School in 1965, served as a Lieutenant in the Arkansas National Guard, graduated from Hendrix College in 1970 where he finished first in his class, received his Juris Doctorate from the University of Arkansas School of Law in 1973 and his Masters of Law from Southern Methodist University in 1974. He was a member of the Pulaski County and Arkansas Bar Associations and the Arkansas Trial Lawyers Association. Judge John Fredrick Forster Jr. of Lexington, Virginia, died on May 7, 2019, at the age 76. He retired as a U.S. Magistrate Judge in 2008 after serving for 22 years. He practiced law at the Hilburn Law Firm before becoming a magistrate judge. He taught at Washington and Lee University in Virginia. Melva Jane Harmon of Little Rock died July 3, 2019, at the age of 71. Melva was educated in the Terrell, Texas, public schools and received her undergraduate degree from Stephen F. Austin State University in 1970 and then her law degree from the University of Texas in 1976. She was a VISTA volunteer right out of college, working in Harrison and Little Rock, and was one of the founding organizers for the thenfledgling ACORN community organization. After law school, she returned to Little Rock and began a long and distinguished career as a union and “people’s” lawyer, representing Teamsters Local 878 and other unions, as well as countless individuals in every type of employment dispute, for over
40 years. Melva was selected as a fellow of The College of Labor and Employment Lawyers, which honors the leading lawyers nationwide in the practice of Labor and Employment Law. In her later career, Melva was also a mediator and arbitrator and was active in service to both the American and Arkansas Bar Associations. Donna Hayden Lyles of Fayetteville died May 11, 2019, at the age of 52. She graduated salutatorian from Pine Bluff High School then headed to the University of Arkansas where she earned a BA in Political Science followed by a Juris Doctorate degree in 1991. Donna began her law career with a stint in Washington D.C. and moved back to Fayetteville where she practiced family law for the past 28 years. She dedicated herself to serve others through her passion for the law and treating her clients with dignity and respect as if they were part of her family. She was a member of the Arkansas Bar Association and a Baum Foundation Board Member. Dan Max Orr of Ash Flat died July 8, 2019, at the age of 88. Dan was a World War II veteran in the U.S. Air Force. He had been an attorney in Ash Flat since 1971. He served in leadership roles in the Tri-County and Arkansas Bar Associations, Masonic Lodge, Highland School District Athletic Booster Club, Ash Flat Saddle Club, Hillbilly Horse Show and Tri-County Cattlemen’s Associations. Dan was the legal representative for FNBC Bank and proudly served as Chairman of the Sharp County Democratic Central Committee for many years.
The information contained herein is provided by the members’ obituaries.
Vol. 54 No. 3/Summer 2019 The Arkansas Lawyer
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Classified Advertising
Index to Advertisers
WANT TO PURCHASE MINERALS AND OTHER OIL/GAS INTERESTS. Send details to: P.O. Box 13557, Denver, CO 80201.
Advertise in the next issue of The Arkansas Lawyer. Opportunities are also available on ArkBar’s website and weekly ebulletins. Go to www.arkbar.com/ for-attorneys/publications/the-arkansas-lawyer/advertising
THANK YOU FOR YOUR MEMBERSHIP Λορεμ ιπσυμ δολορ σιτ αμετ, χονσεχτετυερ αδιπισχινγ ελιτ, σεδ διαμ νονυμμψ νιβη ευισμοδ τινχιδυντ υτ λαορεετ δολορε μαγνα αλιθυαμ ερατ ϖολυτπατ. Υτ ωισι ενιμ αδ μινιμ ϖενιαμ, θυισ νοσ ♦
♦
2019-2020
The Arkansas Bar Association thanks you for your membership and commitment to sustaining our profession and association. Please contact Anna at ahubbard@arkbar.com if you would like a copy of the new member decal shown here for your website or email.
PAGE ABA Books for Bars
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ABA Retirement
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ArkBar CLE
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ArkBar Member Benefits
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