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Foul Language and Free Speech: Does Being Offended Justify an Arrest?

While most people treat law enforcement officers with respect, there are occasions when a citizen will voice his/her dissatisfaction with law enforcement officers. One such case occurred in Fort Smith, when a driver yelled “f*** you!” through his car window as he passed an Arkansas State Trooper who was performing a traffic stop related to a different vehicle. After the trooper noticed the reaction of two children to the profane language, he promptly tracked down the driver in his vehicle, stopped him, and arrested him for “disorderly conduct.” The driver spent several hours in jail, but was eventually released and all charges against him were dropped. Despite this apparent resolution, questions remained – was the profane language unprotected or protected speech and was his profane yelling actually a violation of Arkansas’s disorderly conduct law?

Following his release, the driver filed a civil rights lawsuit alleging violations of his First Amendment right to free speech and Fourth Amendment right against unreasonable seizure.  In its opinion in Thurairajah v. City of Fort Smith, 2019 U.S. App. LEXIS 16573, __ F.3d __ (8th Cir. 2019), the Eighth Circuit Court of Appeals recognized that “the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.”  The driver was able to show that (1) his speech was protected; (2) the trooper’s adverse action against him would have a chilling effect on persons wishing to continue in the same type of speech; (3) the motivation for the arrest was at least partially related to the driver’s exercise of a protected activity; and (4) there was no probable cause or arguable probable cause for the arrest.

In this case, the key elements of the analysis related to whether the profane language was considered free speech and whether there was probable cause for an arrest for disorderly conduct.  The protected nature of the speech is clear.  In Thurairajah, the Eighth Circuit Court of Appeals explains that the profane language is in fact protected speech, citing to a Vietnam War era United States Supreme Court opinion finding a jacket with a similarly profane anti-draft message was protected speech.  Furthermore, the Eighth Circuit went on to explicitly confirm that “[c]riticism of law  enforcement officers, even with profanity, is protected speech.”

Although the content of the language is thus clearly protected, the scope and volume of the language could still potentially render it a violation of Arkansas’s disorderly conduct law, as the applicable Arkansas statute penalizes “unreasonable or excessive noise.”  However, in its opinion, the Eight Circuit Court of Appeals highlights the fact that “Arkansas courts have not previously concluded that a two-word yell could violate the disorderly conduct statute’s unreasonable or excessive noise provision.”  In fact, the Court of Appeals cites to one Arkansas case in which “the Arkansas Court of Appeals held that 20 seconds of public shouting involving foul language did not establish disorderly conduct.”  Based upon the applicable facts and the established case law, the Eighth Circuit Court of Appeals held the trooper failed to meet the minimum standard of” arguable probable cause” for the driver’s arrest, acknowledging that the “conduct may have been offensive, but it was not an unreasonable or excessive noise.”  While it may be appropriate for the driver’s mother to wash his mouth out with soap, it was unlawful for the trooper to arrest him for making the profane statement.

 

Dancing to the Beat of Your Own Drum: Refining the Definitions of Assault and Battery

What happens when a nightclub is sued by a patron who was accidentally injured while he was being forcibly removed from the nightclub? One would expect that an insurance company would enter the picture to pay for the legal defense of the nightclub and for any judgment, if one is issued against the insured nightclub. However, that is not always the case.

The recent case of E B Mgmt. Co., LLC v. Houston Specialty Ins. Co., 2019 Ark. App. 294 (Ark. Ct. App. 2019), dealt with one such situation. In E B Management, a patron of a nightclub who wanted to play a drum accompaniment to the piano music paid the piano player $20.00 for the privilege. Once the music started and it was clear that the patron could not keep a beat on the drums, the piano player stopped the music. Incensed, the patron demanded the return of his $20.00, but the piano player refused. The nightclub’s bouncer then promptly removed the patron from the stage and threw him out the door of the establishment, causing the patron to hit his head on the concrete curb. A little more than a year later, the patron filed a negligence lawsuit against the nightclub and the bouncer.

While the nightclub’s commercial insurance policy had coverage limits of $1,000,000.00, it had a special exclusion that only allowed coverage of $100,000.00, including the costs of a legal defense, for any “assault and battery incident[s].” Claiming the negligence lawsuit was actually based upon an “assault and battery incident,” the insurance company refused to cover any legal fees, settlement amount, or judgment which commutatively exceeded $100,000.00. The nightclub, on the other hand, relied upon the allegations in the Complaint, which specifically claimed that the injury was caused by negligence rather than by an intent to commit harm or assault the patron. The determination of coverage was thus dependent upon whether the trial court found the events set forth in the Complaint to be “an assault and battery incident.”

Despite the fact that the terms “assault” and “battery” are well known legal terms and necessarily require an element of intent, the insurance policy at issue in E B Management utilized a unique definition of “assault and battery” defining it as any harmful or offensive contact, regardless of intent. In evaluating these competing definitions of an “assault and battery,” the trial court ignored the theory of liability alleged in the Complaint, which did not include any alleged intent, and instead focused on its interpretation of facts associated with the actions leading to the plaintiff’s injury. Applying the unique contract definition of “assault and battery” to those facts, the trial court concluded that the “assault and battery” limitation applied.

In spite of the dissenting judges’ strongly worded conclusion that the trial court had improperly “adjudicate[d] facts to justify its decision,” the majority of the Arkansas Court of Appeals affirmed the trial court’s ruling in favor of the insurance company and its limitation of coverage. In essence, the Arkansas Court of Appeals approved the insurance company’s contract definition of “assault and battery”in such a way as to deny full coverage and a legal defense to the nightclub.

There is a lesson to be learned from this situation. It is essential that businesses be familiar with the language of any liability insurance policy that they may have, paying particular attention to any defined terms in the policy that stray from the commonly understood meanings of the words utilized.

 

Up in Smoke: How an Individual’s Previously Destroyed Will Can Still “Exist” at the Time of His/Her Death.

Generally, the last will and testament of a testator (the individual who makes the will) needs to meet various legal formalities to be valid. However, a testator can revoke his/her will by simply intentionally destroying the will prior to his death. As a result, the validity of a will is questioned when the will is lost or unintentionally destroyed prior to the testator’s death. So what happens when a will is lost/destroyed as a result of a house fire?

The Arkansas Court of Appeals recently addressed this issue in the case of Cunningham v. Dillard, 2019 Ark. App. 177, 2019 Ark. App. 191 (Ark. App. 2019). Prior to his death, Loy Cunningham executed two separate Wills. The first Will (the “2006 Will”) satisfied the necessary formalities of Arkansas law and was executed in 2006. The second Will (the “2010 Will”) also satisfied the necessary formalities and was executed in 2010. In the 2010 Will, Mr. Cunningham specifically revoked the 2006 Will. As a result of a fire at Mr. Cunningham’s residence in 2012, the 2010 Will was either lost or unintentionally destroyed.

Following Mr. Cunningham’s death in 2016, his daughter, who was the primary beneficiary of the 2006 Will, through a Trust, filed a petition to probate the 2006 Will. Less than two weeks later, Connie, a woman who lived with the testator during the last years of his life, filed a petition to prove the existence and validity of the missing 2010 Will. The main dispute between the parties was whether Connie could satisfy a key requirement for proving the validity of a lost/destroyed will under Ark. Code Ann. § 28-40-302 – namely, a beneficiary seeking to prove the validity of a lost/destroyed will must prove that the will was “in existence at the time of the death of the testator . . .” Mr. Cunningham’s daughter argued that it was impossible for Connie to satisfy this requirement because the parties had stipulated that the 2010 Will was destroyed by a fire in 2012 and, thus, there was no document in existence at the time of Mr. Cunningham’s death. However, Connie argued that the she only needed to prove that the 2010 Will was not intentionally destroyed and thus had a “legal existence” at the time of Mr. Cunningham’s death. The trial court found in favor of Connie and held that the 2010 Will was valid and enforceable.

On appeal, the Arkansas Court of Appeals noted that if a will is not produced after the testator’s death, it is presumed to have been revoked by the testator prior to his death. However, the Arkansas Court of Appeals held that such a presumption can be overcome if the proponent of the lost will proves that the will was not revoked or cancelled during the decedent’s lifetime. Adopting the “legal existence” standard proposed by Connie and due to the parties’ stipulation that the 2010 Will was accidentally lost or destroyed as a result of a house fire, the trial court concluded that Mr. Cunningham did not revoke or cancel the 2010 Will during his lifetime. The Arkansas Court of Appeals accepted the trial court’s determination that Connie proved the 2010 Will was not intentionally destroyed. In addition, it confirmed that under Arkansas law only “legal existence” is necessary to satisfy the requirement that a will be in existence at the time of the testator’s death. Accordingly, if a will is lost or even destroyed by a fire, a beneficiary may still be able to prove the validity of the will.

 

Going Once, Going Twice, Sold: Can a Judge Make You Bid to Receive Your Interest in a Marital Business?

Attempts to divide the marital assets of a divorcing couple are often complicated. This is particularly true when a couple has been married for decades and owns a business. As a result, judges are often left in the unenviable position of attempting to ascertain the value of the marital businesses and then determine how to divide that business among uncooperative co-owners, without requiring liquidation of the business. In Ballegeer v. Ballegeer, 2019 Ark. App. 269 (Ark. App. 2019), a judge recently came up with a unique method for resolving this dilemma – simply make the divorcing parties bid against each other in a reverse auction.

In Ballegeer, the judge granted Mrs. Ballegeer’s divorce and ruled that the business had a value of $336,000.00 and that one-half interest was thus valued at $183,000.00. The judge then granted Mr. Ballegeer the first right to purchase Mrs. Ballegeer’s interest in the company. If he refused, Mrs. Ballegeer would have the right to purchase her ex-husband’s interest at the same price. However, if she then refused to purchase her ex-husband’s interest, the process would repeat itself with the price dropping by $5,000.00 increments until one of them exercised the right to purchase the other’s interest in the company.

At the time Ms. Ballegeer filed for divorce in 2015, the Ballegeers had been married for more than 30 years and had owned their landscaping/maintenance business for nearly 20 years. While both parties had been involved in the business at various times during the course of its operation, by the time of their separation in 2016, Mr. Ballegeer had complete control of the company and Mrs. Ballegeer was working in a retail store making $8.00 per hour. Mrs. Ballegeer had no access to the income stream from the business and was not in a financial position to be able to obtain a loan to buyout her husband’s interest in the company. Mr. Ballegeer, on the other hand, had a superior bargaining position and the financial ability to obtain a loan and buyout Mrs. Ballegeer’s interest in the company. As a result, the bidding process gave the parties an unequal opportunity to exercise the right to purchase their former spouse’s interest, providing Mr. Ballegeer the ability to purchase his ex-wife’s interest in the business for much less than its actual value.

Although this method for resolving the conflict was a creative solution to a difficult problem, the Arkansas Court of Appeals held that the judge had abused his discretion by not explaining his reasoning for requiring the parties to bid against one another in a manner that resulted in an unequal distribution of the marital property. In Arkansas, marital property is divided equally among the parties unless the judge determines that such a division is inequitable and explains why an unequal distribution of marital property is appropriate. In this case, the judge did not explain the reasons for his decision to impose a bidding procedure that facilitated an unequal distribution of the marital business between the parties. As a result, the Arkansas Court of Appeals sent the case back to the trial court so that the judge would have the opportunity to either alter or scrap the bidding process from his ruling or explain the basis for approving an unequal distribution. It remains an open question as to whether any explanation by the judge regarding his reasons for utilizing the unique bidding process would satisfy the Arkansas appellate courts.

Don’t Count Your Chickens Before They Hatch: When an Attorney Lacks Authority to Settle a Case

In Arkansas, litigation is more likely to be resolved by settlement than by trial. While settlement is generally the quickest route to resolution, settlement negotiations can sometimes be tumultuous and so it is particularly important that all of the attorneys and clients make sure that they are on the same page as they navigate through the settlement process. An example of where this did not occur is the recent case of Terra Land Servs. v. McIntyre, 2019 Ark. App. 118 (Ark. App. 2019), in which the Arkansas Court of Appeals reversed the trial court’s order compelling execution of a settlement agreement, finding that ruling “clearly erroneous.” The outcome in the McIntyre case has significant implications with respect to any attorney who relies upon an opposing attorney’s statements regarding settlement.

This case was complex litigation between partners to resolve the ownership and interests of a partnership which had been ongoing for many years and involved hundreds of thousands of dollars of assets. The disputing partners agreed on very little regarding the business venture. Five years into litigation, pleadings were filed seeking financial records and a summary judgement. While these items were under consideration by the court, ten days of numerous emails, faxes, and telephone calls between counsel for the parties resulted in the attorneys confirming (likewise by emails and faxes) to each other that a settlement had been reached, its details, and that formal settlement documents would be finalized in the coming days.

Then, one of the parties (Terra) declared they had not settled and were still awaiting documents before they would do so. The other side (McIntyre) filed a motion to enforce the obviously reached settlement. In response, Terra asserted that, despite the clear communications between attorneys that settlement had been reached and the terms thereof, they had never explicitly authorized their attorney to agree to a final settlement of the case. This limitation had not been conveyed by Terra’s attorney to McIntyre’s attorney; Terra’s attorney asserted during the negotiations that he had the authority to settle. The trial court ordered that the settlement should be enforced.

On appeal, the Arkansas Court of Appeals found the communications between Terra’s representatives and their attorney to be compelling evidence that Terra’s attorney was never authorized to agree to any settlement arrangement. The Court held that “[u]nder Arkansas law, an attorney has no implied authority to enter into a compromise agreement,” even if that attorney represents to the other side that he or she holds such authority. Finding specific authorization to settle was lacking, the Court ruled that the attorney had no authority to settle for Terra and concluded that McIntyre could not enforce the purported settlement agreement using the statements of Terra’s attorney as to his authority and the settlement terms.

While attorneys routinely negotiate on behalf of their clients, with both sides presuming authority to do so, any reliance on a resulting settlement, absent the written and specific confirmation of the clients, now has no justification until that confirmation is accomplished. Potentially, that may result in a most unhappy surprise for those attorneys and clients who presume the contest is resolved and then cannot acquire such confirmation.

Not Red Handed: When A Gun is Found 20 Yards From a Suspect in an Unlocked Shed.

The phrase “caught red handed” is often used in police dramas to describe a suspect in possession of a key piece of evidence that leads to a conviction. However, in many real criminal investigations the evidence of a crime is more nuanced and may depend upon circumstantial evidence to support a claim of constructive possession. For instance, in the recent case of Bradley v. State, 2018 Ark. App. 586 (Ark. App. 2018), the Circuit Court convicted a suspect of illegal possession of a firearm, despite the fact that the suspect did not have physical possession of the firearm at the time he was arrested. However, that conviction was subsequently reversed on appeal.

In Bradley, the defendant was convicted of being a felon in possession of a firearm in violation of Ark. Code Ann. § 5-73-103(c)(1)(A). Prior to Bradley’s conviction for that offense, the Circuit Court dismissed five separate charges related to Bradley’s alleged actions on the night he was arrested. All of the charges stemmed from an alleged domestic disturbance at a house in Little Rock. On the night of the alleged incident, the police responded to a 911 call and found various individuals in the house, including an older teenager. The suspect was arrested in the backyard, approximately 20 yards from a metal shed that was located next to the backdoor. About the time of the suspect’s arrest, one of the police officers located a loaded Glock semiautomatic pistol inside the metal shed. The suspect subsequently identified the Little Rock house as his address on a Miranda form.

In Arkansas, “[a] conviction for violating section 5-73-103(a)(1) may be based on actual or constructive possession. Bradley, 2018 Ark. App. at *7. “To constructively possess contraband means knowing it is present and having control over it.” Id. “Control and knowledge can be inferred from the circumstances . . .” Id. at 7-8 (finding it necessary that the item be “found in a place that is immediately and exclusively accessible to the accused . . .”). The Arkansas Court of Appeals determined that the Circuit Court had improperly applied the standard by accepting circumstantial evidence of constructive possession that “did not foreclose, beyond speculation and conjecture, every other reasonable hypothesis of [the defendant’s] guilt.” Id. at 9. The Circuit Court had previously concluded that the prosecution had met its burden of proof, “based upon proof that the Glock firearm located in the rear of the defendant’s residence . . . was located in an area from which the defendant was seen by police officers to have been fleeing or running. It was located in close proximity in time from the time that the defendant was being pursued. It was located in an open space, in an area near where defendant was apprehended.”

Evaluating the circumstantial evidence, the Arkansas Court of Appeals noted that: (1) the police officers admitted that multiple people had access to the house and the shed where the gun was found; (2) no witness had explained the defendant’s relationship to the people in the house; (3) the prosecution did not present evidence that the defendant had a property interest in the house, nor did it provide evidence that he paid utility bills for the house; (4) the prosecution did not link the defendant to the gun through fingerprint analysis, ownership records, or testimony regarding the defendant having a history of prior gun ownership/use; (5) there was no testimony regarding who used the storage shed, the purposes of that use, and the period of time it had been used;(6) the gun was located approximately 20 yards from the defendant, outside of the house, in an open box, in an unlocked shed; and (7) “the police officers did not recover any personal items that may have linked [the defendant] to the metal shed, the gun, or the house.” Id. at 9-12. Based upon these deficiencies, the Arkansas Court of Appeals held that there had not been “substantial evidence to support the conviction . . .” and reversed the conviction.

While it is possible to use constructive possession to prove a crime has occurred, it is difficult to accomplish. Whenever possible, it is better to catch the suspect “red handed.”

 

How Hostile Must I Be To Acquire Ownership By Adverse Possession?

To prove ownership of land by adverse possession, one must show possession of the disputed property continuously for seven years and that the possession has been actual, open, notorious, continuous, hostile and exclusive, and accompanied with an intent to hold the property against the true owner. However, a recent decision by the Arkansas Court of Appeals shows that the element of hostility is now viewed by an objective, rather than a subjective, standard, which should make it easier for one claiming ownership by adverse possession to prove his claim.

Garland Gilmore filed suit against Sean and Kim Collier to quiet title to a disputed strip of property. Both Gilmore and the Colliers acquired their respective titles from a common predecessor, Lyn and Myrtle Holder. Mr. Gilmore testified at the trial that when he purchased his property in 1972, he was told by Mr. Holder that he was buying all of the land up to a then-existing fence, which enclosed the property where Mr. Holder lived (and which the Colliers now own). The fence was later removed, but Mr. Gilmore actively farmed the disputed strip of land up to where the fence used to be for more than 40 years. The Colliers maintained that the descriptions in the deeds control and that the boundary line should conform to the deeds and not to Holder’s and Gilmore’s understanding of where the boundary line was located.

To establish ownership of property by adverse possession, one must show that he has had actual, open, notorious, continuous, hostile and exclusive possession of the disputed property for seven years, along with an intent to hold the property against the true owner. At the trial, Mr. Gilmore testified that he has always believed that the property he was farming belonged to him and that it was not his intention to “take” the property from anyone. The Colliers argued that this testimony showed that Mr. Gilmore’s use was not a hostile use, but was a permissive use. If one uses someone else’s property with permission, he cannot show the hostile intent necessary for adverse possession.

The Court of Appeals concluded that Gilmore’s act of farming the disputed tract for decades was enough to “establish an intent to hold against, and not in subordination to, the true owner’s rights.” The fact that Gilmore subjectively believed he was farming up to the true property line – which would seemingly eliminate the element of hostility – was deemed unimportant. Instead, the Court focused on Gilmore’s objective behavior. Applying an objective, rather than a subjective, view of intent, the Court found that Gilmore’s possession was “hostile” because “it was to an extent greater than the deed anticipated; and his conduct was not subordinate to Holder’s property interests or done with Holder’s permission.” Collier v. Gilmore, 2018 Ark. App. 549 (November 14, 2018).

This case signals Arkansas’s shift towards what the Court of Appeals described as the “trending” majority view that in adverse possession cases, the element of hostility will be determined by the parties’ behaviors and not by inquiring into a claimant’s subjective intent. So, even if you only intended to possess up to the true property line, if you actually possess property beyond that line and can establish the other necessary elements, your adverse possession claim should succeed. This new interpretation of the law also puts a heavy obligation on all landowners to know where their legal boundaries lie and to enforce those against a neighbor’s apparently non-hostile use. In other words, if your neighbor is mowing, gardening, playing on or otherwise using property inside your boundary, even though only smiling quietly at you as he does it, he is maturing his claim to your property.

 

Making Bad Decisions Leads to More Bad Decisions: Meth Use Does Not Invalidate Consent to a Police Search.

Methamphetamine is an insidious drug that can cause serious turmoil in the lives of its users. That point is exemplified in the recent case of Dye v. State, 2018 Ark. App. 545 (Ark. App. 2018), in which a methamphetamine user consented to a police search of his house, while he was under the influence of the drug.

On the night at issue in that case, a police officer came across two vehicles on a road near an industrial park that was on private property. He was patrolling the area due to reports of trespassing on private property. After approaching the vehicles, the officer noticed an occupant with a hand full of cash and a black pouch full of loose baggies between the seats.

After additional patrol cars arrived, one of the occupants of the vehicles fled the scene on foot. When asked about where the fleeing person might have gone, the remaining person told the officers that the fleeing man was staying with him at his house. He consented to a search of the house, both verbally and in writing, and gave his key to the house to the officers. The officers later admitted that during his conversation with police, the man’s “speech was slurred, his eyes were glassy, and he was unsteady on this feet.” They concluded that he was under the influence of a narcotic. Despite the man’s condition at the time of his consent, the officers searched the home and within five minutes they discovered a shotgun, shotgun shells, spoon containing crystal methamphetamine, glass pipe, straws containing a powdery substance, and pit bull mix dog. Based upon the evidence, the man was subsequently convicted of possession of methamphetamine, possession of drug paraphernalia, and being a felon in possession of a firearm.

The man appealed his conviction, arguing the consent obtained by the officers was invalid due to the man being under the influence of drugs at the time the consent was allegedly given. Arkansas Rule of Criminal Procedure 11.1 puts the burden on the state to prove by clear and positive evidence that consent to a search was freely and voluntarily given and that there was no duress or coercion. In this case, both the trial court and the Arkansas Court of Appeals agreed that the state had met its burden, based upon the testimony of the officers that the man understood what was going on, consented to the search of his house, gave the officers his key to this house, and voluntarily advised the police about some of the items found in the house.

The man’s methamphetamine use not only subjected him to criminal prosecution, it also appears to have impacted his judgment to the point that he voluntarily gave the police the keys to his house and the evidence necessary to convict him. Some bad decisions, such as methamphetamine use, have a cascade effect that leads to more bad decisions. As appropriately stated in the pop-culture anti-drug television campaigns of the 1980s, “This is your brain on drugs. Any questions?”

To Catch a Catfish: A Woman’s Impersonation of a Deceased Romantic Rival Provided Sufficient Proof of Murder

“Catfishing” is a well known phenomenon in modern society in which a person adopts the digital identity of a real person, or even a non-existent person, on social media and/or other digital platforms, as a means of deceiving someone for romantic, financial, or other fraudulent purposes. An imposter in Nebraska took this practice to a whole new level, when she murdered her romantic rival and then adopted that person’s digital identity for nearly four years in an effort to cover up the murder.

In 2012, Cari Farver was casually dating a man named David Kroupa. Mr. Kroupa had recently broken off a relationship with a woman named Shanna Golyar. Ms. Golyar made multiple attempts to resume the relationship with Mr. Kroupa, including interrupting one of his dates with Ms. Farver, a woman that Mr. Kroupa had only recently started dating. Shortly thereafter, Ms. Farver’s vehicle was vandalized. A couple of days later, Cari Farver went missing.

Although Farver’s body was never found, approximately four years later, Shanna Golyar was charged with Farver’s murder. Following her conviction, Golyar appealed to the Nebraska Supreme Court to seek to have her conviction overturned, because she believed“the evidence was insufficient to support the convictions . . .” Ms. Golyar emphasized that no body or murder weapon were produced at trial.

However, prior to charging Ms. Farver, investigators were able to find digital forensic evidence proving that for a period of approximately four years after Ms. Farver went missing Ms. Golyar had utilized Ms. Farver’s Facebook account, email account, and text messages to adopt Ms. Farver’s digital identity. Using Ms. Farver’s accounts and phone, she sent a message breaking up with Mr. Kroupa, unfriended Mr. Kroupa on Facebook, sent multiple messages to Farver’s family members and friends, sent a message to Farver’s employer to quit her job, sent harassing messages to Mr. Kroupa and his other love interests, and sent harassing messages to herself. Ms. Golyar also created a myriad of false accounts, impersonating other individuals to further her scheme.

In early December of 2015, Ms. Golyar went to police in an attempt frame Amy Flora, the mother of Mr. Kroupa’s children, asserting that she had received harassing messages from Ms. Flora and that she believed Ms. Flora was also the actual source of the “harassing” messages ostensibly sent by Farver. A few days later, Ms. Golyar provided the police with additional harassing messages that she claimed came from Ms. Flora. Later that same day, Ms. Golyar shot herself in the leg. When the police arrived, Ms. Golyar alleged that Ms. Flora was the one who shot her. Using imposter email accounts, Ms. Golyar continued to send emails, purportedly from Ms. Flora. These emails included harassing comments and Ms. Flora’s supposed admissions regarding the murder of Ms. Farver, an arson at Ms. Golyar’s residence, and the shooting of Ms. Golyar.

Through their investigation of Ms. Golyar’s allegations, the police were able to confirm that all of the messages originated from Ms. Golyar. Police also discovered digital images tied to Ms. Golyar’s phone that included tattoos on Ms. Farver’s body and Ms. Farver’s vehicle. Moreover, the investigation uncovered digital evidence that placed Ms. Golyar in proximity to various criminal acts and tied her to the imposter accounts. On appeal, the Nebraska Supreme Court upheld Ms. Golyar’s murder conviction, based upon the digital forensic evidence, finding “circumstantial evidence associated with the victim’s disappearance can be sufficient to establish the death.” State v. Golyar, 301 Neb. 488 (Neb. 2018). While Ms. Golyar may have thought that she had gotten away with the perfect murder, by disposing of the body and the murder weapon, her digital footprints associated with her catfishing provided the proof necessary to tie her to the murder. Sometimes facts truly are stranger than fiction.

It is Good to be King: No, You Cannot Sue the State!

In battles between the proverbial David and Goliath, sometimes the giant wins. That is often the case when it comes to wrongful acts committed by the State of Arkansas, as the state is protected by sovereign immunity.

The doctrine of sovereign immunity generally prevents a state from being civilly liable for its wrongdoing. A principle that has its origins in the power of monarchies to establish courts of law, the concept of sovereign immunity is exemplified in the maxim rex non protest peccare (“the king can do no wrong”). This principle is included in the Arkansas Constitution in Article 5, Section 20, which provides that “the State of Arkansas shall never be made defendant in any courts.” However, the Arkansas Supreme Court has previously held, over many years and in many cases, that the Arkansas General Assembly can waive sovereign immunity. As a result, there are Arkansas statutes that explicitly include such a limited waiver. Thus, Arkansas has been sued successfully many times over many years, under the Freedom of Information Act, Worker’s Compensation laws, for land condemnation damages, and under a myriad other statutory waivers, including the Arkansas Minimum Wage Act which includes a specific waiver of sovereign immunity with respect to minimum wage claims by state employees against Arkansas.

Given this established precedent, it is surprising that the Arkansas Supreme Court recently overturned that precedent and held that the Arkansas General Assembly does not have the authority to waive sovereign immunity. In Bd. of Trs of the Univ. of Ark. v. Andrews, 2018 Ark. 12 (2018), the majority of the Arkansas Supreme Court held that the statutory waiver of sovereign immunity for Minimum Wage Act violations is invalid, because it is “repugnant to article 5, section 20 of the Arkansas Constitution.” In support of its ruling, the Arkansas Supreme Court noted that in contrast to the earlier 1868 Arkansas Constitution, which specifically allowed for waiver of sovereign immunity, the current Arkansas Constitution was ratified without that language and instead clarified that the State of Arkansas is “never” to be made a defendant. Due to its ruling in Andrews, the Arkansas Supreme Court has now established that the Arkansas General Assembly is prohibited from waiving sovereign immunity and subjecting the State of Arkansas to civil liability in court.

While the State of Arkansas is not subject to being sued in Court, the Arkansas General Assembly has established the Arkansas Claims Commission to consider the claims of aggrieved parties that have been harmed/damaged by the wrongdoing of the State of Arkansas. This method of redress has previously been approved by the Arkansas Supreme Court and was once again recognized as a viable option in the Andrews case. However, unlike in a court of law, where a party is entitled to due process and an unbiased judge/jury, a claimant before the Arkansas Claims Commission is at the mercy of the Arkansas General Assembly, which has the sole right to determine whether any funds should be paid to reimburse the claimant for his/her damages.

This decision has thrown into huge uncertainty the long-standing presumption of lawyers and claimants throughout Arkansas that the courts provide effective legal redress for wrongs inflicted upon them by the state. It is good to be king!