Editorial
Front Page - Friday, October 9, 2009
I Swear...
Reflecting on Gorman
Vic Fleming
I had the good fortune during my second and third years of law school to be employed in the legal profession.
I should mention, and thank, the lawyers for whom I was privileged to do research in 1976-78:
Jim Hamilton, now Judge of North Little Rock’s District Court;
Stewart Vess;
The late Russ Reinmiller;
Judith Rogers, now retired Arkansas Court of Appeals Judge;
The late Ruby Hurley;
Sam Hilburn;
Stewart Hankins; and
Scott Vaughn.
There were others, but memory has faded.
At that time of my life, there was nothing quite as exciting as digging into a legal issue that no one else wanted to tackle.
Vivid memories remain as to the first brief I ever wrote to the Arkansas Supreme Court.
The issue was whether an ordinance raising rates for a city-owned utility was legislative or administrative in nature. If the former, it was subject to referendum. If the latter, it was not.
I was working for then North Little Rock City Attorney Jim Hamilton. The city council had raised rates for electricity delivered by the city-owned electric company.
A large segment of the populace was outraged because they felt their rates were already too high.
A petition drive to refer the ordinance to the voters, pursuant to Amendment 7 of the Arkansas Constitution, was mounted.
With each passing day, it became clear that the petition would garner enough signatures.
(Hey, if someone told you that you could vote on the price you pay for something …)
After the petitions were presented, a lawsuit was filed in chancery court by a group of citizens seeking to enjoin the city from using the money it collected from the higher rates and to direct the council to call an election on the ordinance, pursuant to the petition.
Worried that chancery court had no jurisdiction to do the foregoing, another group filed suit in circuit court, seeking mandamus to require the city council to call an election on the ordinance.
The city’s position was that ordinances that raise utility rates are not subject to referendum.
Chancellor John Jernigan ruled, in essence, that because the city made a profit from the electricity it sold, the rate increase was in essence taxation; therefore, it must be legislative in nature and, thus, subject to referendum. The city appealed.
Special Circuit Judge Eugene Bailey denied the request for mandamus, noting that the chancery case had been ruled on and appealed; therefore, everyone had best be ready to follow the Supreme Court’s ruling. That order was appealed, and the cases were consolidated.
Every state that had considered the issue (and memory tells me it was eight or more) had ruled that setting utility rates was an administrative matter.
I was devastated when the Arkansas Supreme Court held that the ordinance was legislative, rather than administrative.
Eight or more cases directly on point from other jurisdictions had held otherwise, and all Arkansas cases cited by the opposition were distinguishable.
But a unanimous en banc ruling went against us, and neither the majority opinion written by Justice George Howard nor a concurring opinion written by Justice John Fogleman even cited the cases that I had taken hours to parse and analyze in our brief. See North Little Rock v. Gorman, 264 Ark. 150, 568 S.W.2d 481 (1978).
Jim Hamilton shrugged it off. He’d read the cases. He knew how and why the court had done what it had done.
Me? I had a lot to learn. And still do.
© 2009 Vic Fleming
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