Atkinson v. Board of Trustees of University of Arkansas, 77-98

• Decision Date: 19 December 1977
• Docket Number: No. 77-98,77-98
• Citation: 559 S.W.2d 473,262 Ark. 552
• Parties: Richard ATKINSON et al., Appellants, v. BOARD OF TRUSTEES OF the UNIVERSITY OF ARKANSAS et al., Appellees.
• Court: Arkansas Supreme Court

Page 473

559 S.W.2d 473

262 Ark. 552

Richard ATKINSON et al., Appellants, v. BOARD OF TRUSTEES OF the UNIVERSITY OF ARKANSAS et al., Appellees.

No. 77-98.

Supreme Court of Arkansas, In Banc.

Dec. 19, 1977.

Rose, Nash, Williamson, Carroll, Clay & Giroir, Little Rock, for appellants.

C. Dallas Sands, University, Ala., amicus curiae brief.

Friday, Eldredge & Clark by Robert V. Light, Little Rock, for appellees.

HARRIS, Chief Justice.

This litigation refers to the constitutionality of Section 17 of Act 569 of 1975, effective July 1, 1975. The Act is entitled:

"AN ACT to Make an Appropriation for Personal Services and Operating Expenses of the University of Arkansas at Fayetteville for the Biennial Period Ending June 30, 1977; and for Other Purposes."

Pertinent language from Section 1 states:

"There is hereby established for the University of Arkansas at Fayetteville for the 1975-77 biennium, the following maximum number of regular employees whose salaries shall be governed by the provisions of the Uniform Classification and Compensation Act, and all laws amendatory thereto, and by the provisions of the Regular Salary Procedures and Restrictions Act."

The Act then sets out salaries for the various employees, and appropriations for various functions of the University.

Section 17 reads as follows:

"It shall be unlawful for any person employed by the School of Law of the University of Arkansas, who is employed as a professor, associate professor, or instructor, in a full-time position for which a regular salary of nine (9) months or more is established under this Act, to handle or assist in the handling of any law suit in any of the courts of this State or of the federal courts. It is the purpose and intent of this Act to require that professors, associate professors, and instructors who are employed on a full-time basis of nine (9) months or more by the School of Law of the University of Arkansas, shall devote their full time to their duties and shall not engage, either for hire or without payment, in the handling of, or assisting in the handling of, any law suits or litigation while so employed. Any person violating the provisions of this Section shall be relieved from employment immediately upon the determination of such violation, and shall forfeit all rights of tenure in the University of Arkansas."

On April 2, 1976, twenty-one full-time present and former members of the faculty of the School of Law of the University of Arkansas at Fayetteville filed an action in the Pulaski County Chancery Court against the Board of Trustees of the University, and individually in their capacity as members of the board, the President of the University, and the Dean of the School of Law at Fayetteville, seeking a declaratory judgment that Section 17 was unconstitutional on its face. An injunction was sought prohibiting the enforcement of the section. After the filing of answers, the case was submitted to the court upon a stipulation with exhibits, and the deposition of Morton Gitelman, Professor of the School of Law at Fayetteville. ¹ Thereafter, the court entered its decree containing the following findings:

"1.

That Section 17 of Act 569 of 1975 is a valid exercise of the legislative power of the General Assembly.

2.

The prohibitions contained in that section are construed as not applying to or impairing the conduct of the persons affected which (1) constitute exercise of their rights of self-representation or (2) occur during periods intervening between the terms of their academic contracts, which periods include the summer vacation.

3.

The section is construed as not prohibiting the practice of law but only prohibiting that phase of such practice as constitutes handling of, or assisting in the handling of, any lawsuits or litigation, nor does it have any application to any person rendering uncompensated service to the University.

4.

The Court finds that it was the intention of the Legislature to regulate the conduct of all full-time law teachers at the University of Arkansas Schools of Law at both Fayetteville and Little Rock holding contracts of nine months or more and that the term 'instructors' is sufficient to extend coverage of the section to assistant professors."

The complaint was dismissed, and from such decree, appellants bring this appeal. For reversal, eight points are asserted, but we think Point 1 is dispositive of the issue; actually there is an overlapping of Points 1 through 3. Accordingly, a discussion of other points will be omitted.

It is first contended that "The Trial Court erred in failing to find the statute denies appellants equal protection of the laws."

The appropriation act lists six different positions which are applicable to the law school, ² together with maximum salaries authorized, as follows:

Under Section 17, three of these classifications are permitted, without restriction, to practice law, ³ and three are restricted. As noted in the provisions of Section 17, heretofore quoted, distinguished professors, assistant professors and lecturers are not covered by the prohibition, while professors, associate professors and instructors come within the provisions. There is nothing in the record which reflects the various duties of these different classifications; in fact, the stipulation recites:

"(T)here is no substantial difference in the teaching duties, assignments and loads among professors, associate professors and assistant professors at either of the Schools of Law of the University of Arkansas, but there is a difference in qualifications, faculty committee assignments and salaries among the three positions."

We are firmly of the opinion that the section is invalid as a violation of the Equal Protection Clause of the Fourteenth Amendment, the classification not being reasonable relative to the disparity which is shown, and hereafter mentioned, in several respects. This legislation does not qualify under the standard declared by the United States Supreme Court many years ago in Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 561, 64 L.Ed. 989. There, the court said:

"It is unnecessary to say that the 'equal protection of the laws' required by the Fourteenth Amendment does not prevent the States from resorting to classification for the purposes of legislation. Numerous and familiar decisions of this court establish that they have a wide range of discretion in that regard. But the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike."

In the 1969 case of Trister v. University of Mississippi, 420 F.2d 499 (5th Cir.), the court held that while law school faculty members of the State University did not have an isolated constitutional right either to participate in the legal services program of the Office of Economic Opportunity, or to engage in part-time employment while teaching part-time at the law school, they did have the constitutional right to be treated no differently by a state agency than other faculty members of the law school, stating:

"No such right exists in isolation.

Plaintiffs, however, do have the constitutional right to be treated by a state agency in no significantly different manner from others who are members of the same class, i. e., members of the faculty of the University of Mississippi School of Law."

The most striking discrimination among law faculty members is shown by the fact previously mentioned; viz, that part of the law faculty is prohibited from the acts mentioned in Section 17, while other members of the law school faculty are unaffected by the provisions. The trial court simply found that the term "instructors" was sufficient to...