Sutherland v. Arkansas Dept. of Ins.

• Decision Date: 14 June 1971
• Docket Number: No. 5--5609,5--5609
• Parties: Rudy Lee SUTHERLAND, Appellant, v. ARKANSAS DEPARTMENT OF INSURANCE, Appellee.
• Court: Arkansas Supreme Court

Page 724

467 S.W.2d 724

250 Ark. 903

Rudy Lee SUTHERLAND, Appellant, v. ARKANSAS DEPARTMENT OF INSURANCE, Appellee.

No. 5--5609.

Supreme Court of Arkansas.

June 14, 1971.

Glenn F. Walther, Little Rock, for appellant.

Thomas S. Stone, Earl R. Wiseman and Stephen E. Safly, Little Rock, for appellee.

HARRIS, Chief Justice.

Appellant, Rudy Lee Sutherland, is a licensed insurance agent under the laws of Arkansas, having been licensed in April, 1968. Sutherland, in December, 1969, was convicted in California of a felony, such felony being equivalent to embezzlement in this state. ¹ On April 6, 1970, the Insurance Commissioner of the State of Arkansas conducted a hearing for the purpose of determining whether Sutherland's license should be cancelled, and after taking evidence, issued an order revoking the license of Sutherland on the basis of Sub-Paragraph (e) of Paragraph I of Ark.Stat.Ann. § 66--2835 (Repl.1966), which gives as one of the grounds for revocation the following: 'Conviction, by final judgment, of a felony involving moral turpitude.' Thereupon the commissioner ordered appellant's license to sell insurance cancelled. In the meantime, Sutherland had appealed the conviction in the California court to the appellate courts, and he appealed the cancellation order to the Pulaski County Circuit Court, asserting that he had not been convicted by a 'final judgment' since his case was on appeal; that final conviction would not occur until the highest state appellate court handling this type of case had affirmed the conviction. Thereafter, the Circuit Court, (Second Division) of Pulaski County, not agreeing with this contention, affirmed the order of the commissioner revoking the license of the appellant, and from the judgment so entered, Sutherland brings this Appeal. Three points are argued for reversal, but all relate to whether the judgment of the California trial court was a 'final judgment', the judgment of conviction now pending on appeal.

At the outset, it might be stated that it is argued by appellant, that under California law, Sutherland has not been convicted by final judgment, ² a point not raised in the trial court, but even had this question been timely raised, there would be no point in discussing the California law, for the matter is controlled by Arkansas law, i.e., the judgment entered by the California trial court, insofar as it relates to the question at hand, is governed by whether the judgment was final under Arkansas law. This is true because of the ancient principle of law that where the enforcement of the foreign law would contravene the established policy of the state of the forum, the law of the forum governs. See Beauchamp v. Bertig, 90 Ark. 351, 119 S.W. 75. See also Leflar, American Conflicts Law (1968) § 109, p. 251. The Arkansas view of the question presented was set forth in 1917 in the case of Huddleston v. Craighead County, 128 Ark. 287, 194 S.W. 17. In 1935 this case was cited and relied upon by this court in its holding in State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W.2d 83, a case involving the revocation of a medical license. As recently as June 15, 1970, the holdings in Huddleston and Rodgers were reiterated in TUCKER V. STATE, 248 ARK. 979, 455 S.W.2D 888. ³ Of course, the General Assembly, in enacting legislation, is presumed to be familiar with the holdings of the Arkansas Supreme Court, Lumbermen's Mut. Cas. Co. v. Moses, 224 Ark. 67, 271 S.W.2d 780, and accordingly was presumed to be familiar with the cases just cited, when passing the statute, now codified as Section 66--2835.

Before discussing the application of these cases to the instant question, we must first examine the proceedings in California. The record reflects that on December 9, 1969, the jury returned the following verdict:

'IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ORANGE. The People of the State of California, Plaintiff, vs. RUDY LEE SUTHERLAND, Defendant. No C--21263 VERDICT We, the Jury in the above entitled action find the Defendant, RUDY LEE SUTHERLAND, Guilty of the crime of Felony, to-wit: Violation of Sections 484--487 of the Penal Code of the State of California (Grand Theft) as charged in the Information. Roma L. Marx, Foreman Dated: Dec. 9, 1969.'

Thereupon, the court excused the jurors and set for hearing a 'Motion for New Trial and Probation and Sentencing set for January 9, 1970 at 1:45 P.M. in Department 13'. On that date, the record reveals the following:

'Defendant having been arraigned for Judgment and it appearintg that there is no legal cause why judgment should not be pronounced and the Court having read and considered the probation report, it is the judgment of the Court that imposition of sentence be suspended for three (3) years and that the defendant shall be placed on probation, subject to the following terms and conditions:

(1) serve nine (9) months in the Orange County Jail;

(2) obey all the rules and regulations of the Orange County Sheriff with regard to prisoners;

(3) violate no laws;

(4) obey the usual terms and conditions of probation of the State supervising the probation (5) on release from Orange County Jail, defendant shall not leave this State without the approval of his probation officer, who is hereby authorized to arrange and provide out-of-state supervision;

(6) not to engage in any occupation or business without the prior approval of his probation officer;

(7) manage his business or occupation in accordance with the supervision of his probation officer, and in the event defendant is employed as an agent of any principal in any business, defendant shall not accept funds from parties dealings with the principal, unless such funds are in the form of check or money order and made payable to the principal, and then defendant shall transfer such funds immediately to the principal, and further, defendant shall not maintain a trust account of his own for holding such funds, regardless of the nature of his activity, and if he is paid by his principal, the payment to him shall be forwarded by the principal to him and he shall not take his 'percentage' or...