{ "id": 1892769, "name": "Barbara McCRORY, Individually, and Thomas McCrory, a Minor, by His Mother and Next Friend, Barbara McCrory v. Thomas J. JOHNSON, Brad W. Houston, and Jacquetta Alexander, in Her Official Capacity as Pulaski County Circuit Clerk", "name_abbreviation": "McCrory v. Johnson", "decision_date": "1988-07-18", "docket_number": "88-19", "first_page": "231", "last_page": "246", "citations": [ { "type": "official", "cite": "296 Ark. 231" }, { "type": "parallel", "cite": "755 S.W.2d 566" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "262 Ark. 803", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675830 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/262/0803-01" ] }, { "cite": "135 A.2d 746", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1957, "opinion_index": 0 }, { "cite": "390 Pa. 409", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1275671 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/pa/390/0409-01" ] }, { "cite": "92 Idaho 548", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 2354485 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/idaho/92/0548-01" ] }, { "cite": "287 Ark. 412", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1876550 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/287/0412-01" ] }, { "cite": "242 Ark. 541", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721502 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/242/0541-01" ] }, { "cite": "276 Ark. 390", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751494 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/276/0390-01" ] }, { "cite": "277 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750255 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/277/0406-01" ] }, { "cite": "289 Ark. 332", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875425 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0332-01" ] }, { "cite": "790 F.2d 1486", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1579122, 1578879 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/f2d/790/1486-02", "/f2d/790/1486-01" ] }, { "cite": "644 F.2d 852", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1207234 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/f2d/644/0852-01" ] }, { "cite": "424 U.S. 409", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12026708 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/424/0409-01" ] }, { "cite": "465 U.S. 1100", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11395329, 11395492, 11395558, 11395530, 11395659, 11395600, 11395472, 11395737, 11395415, 11395705, 11395772, 11395390 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/465/1100-01", "/us/465/1100-05", "/us/465/1100-07", "/us/465/1100-06", "/us/465/1100-09", "/us/465/1100-08", "/us/465/1100-04", "/us/465/1100-11", "/us/465/1100-03", "/us/465/1100-10", "/us/465/1100-12", "/us/465/1100-02" ] }, { "cite": "712 F.2d 490", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 5709866, 1878022 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us-app-dc/229/0176-01", "/f2d/712/0490-01" ] }, { "cite": "469 U.S. 832", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11984195, 11984133, 11983559, 11984376, 11983975, 11983614, 11983439, 11984049, 11983668, 11983893, 11983736, 11983513, 11983804, 11984286 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/469/0832-12", "/us/469/0832-11", "/us/469/0832-03", "/us/469/0832-14", "/us/469/0832-09", "/us/469/0832-04", "/us/469/0832-01", "/us/469/0832-10", "/us/469/0832-05", "/us/469/0832-08", "/us/469/0832-06", "/us/469/0832-02", "/us/469/0832-07", "/us/469/0832-13" ] }, { "cite": "720 F.2d 1542", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1904047 ], "weight": 3, "year": 1983, "opinion_index": 0, "case_paths": [ "/f2d/720/1542-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1982, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-110-402", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1988, "pin_cites": [ { "page": "(1)(A)" }, { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-110-111", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "431 F. Supp. 1369", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5725153 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f-supp/431/1369-01" ] }, { "cite": "534 F. Supp. 1178", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3426135 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/f-supp/534/1178-01" ] }, { "cite": "574 F. Supp. 966", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3613845 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/f-supp/574/0966-01" ] }, { "cite": "584 F. Supp. 730", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3661160 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/f-supp/584/0730-01" ] }, { "cite": "634 F.2d 50", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1304229 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/f2d/634/0050-01" ] }, { "cite": "757 F.2d 1344", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 317133 ], "weight": 4, "year": 1985, "opinion_index": 0, "case_paths": [ "/f2d/757/1344-01" ] }, { "cite": "640 F. Supp. 198", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 106687 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/f-supp/640/0198-01" ] }, { "cite": "424 U.S. 319", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12026449 ], "weight": 4, "year": 1976, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/us/424/0319-01" ] }, { "cite": "291 Ark. 153", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872594 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0153-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-110-130", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 1987, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-110-118", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-110-131", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a716-110-117", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 1987, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-110-107", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-110-106", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 5, "year": 1987, "opinion_index": 0 }, { "cite": "395 U.S. 337", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771623 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0337-01" ] }, { "cite": "407 U.S. 67", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9136631 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/407/0067-01" ] }, { "cite": "416 U.S. 600", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 84376 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/416/0600-01" ] }, { "cite": "419 U.S. 601", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177891 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/us/419/0601-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-111-106", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "291 Ark. 445", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872641 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0445-01" ] }, { "cite": "723 S.W.2d 363", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1872640, 1872621 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0185-01", "/ark/291/0186-01" ] }, { "cite": "291 Ark. 185", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872640 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0185-01" ] }, { "cite": "295 Ark. 270", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893779 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0270-01" ] }, { "cite": "287 Ark. 70", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1876656 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/287/0070-01" ] }, { "cite": "291 Ark. 275", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872667 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0275-01" ] }, { "cite": "293 Ark. 242", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869700 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/293/0242-01" ] }, { "cite": "281 Ark. 371", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742290 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/281/0371-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 18-60-301", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 16-110-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 6, "opinion_index": 0 } ], "analysis": { "cardinality": 1162, "char_count": 29190, "ocr_confidence": 0.868, "pagerank": { "raw": 2.6356022436146885e-07, "percentile": 0.8226116657766533 }, "sha256": "df99e96ac5ee072d9e0d51f1f48df7644bc7d98adb9a90ff4a9ed3c375ee14b9", "simhash": "1:dd7eb3b0cc9257f6", "word_count": 4767 }, "last_updated": "2023-07-14T19:25:51.901471+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Purtle, and Newbern, JJ., not participating." ], "parties": [ "Barbara McCRORY, Individually, and Thomas McCrory, a Minor, by His Mother and Next Friend, Barbara McCrory v. Thomas J. JOHNSON, Brad W. Houston, and Jacquetta Alexander, in Her Official Capacity as Pulaski County Circuit Clerk" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThis appeal questions the constitutionality of our prejudgment attachment code provisions, Ark. Code Ann. \u00a7\u00a7 16-110-101 \u2014 16-110-309 (1987). We find them unconstitutional.\nThe facts of the case are as follows: On September 15,1986, appellant Barbara McCrory leased a house from appellee Thomas J. Johnson through his rental agent, appellee Brad W. Houston. Under the written lease agreement, McCrory was to pay $600.00 a month for one year. After McCrory failed to pay part of the December rent and all of the January and February rent, Houston placed a note on her door asking her to pay rent or vacate the premises. When she did not respond, he placed a termination notice on the door requesting her to vacate the premises within ten days. Shortly after the ten-day period expired, Houston removed all the personal property (furniture, appliances, and household items) from the residence and deposited it at a local storage facility.\nOn April 9, 1987, Johnson filed a complaint in Pulaski County Circuit Court alleging that McCrory owed him the sum of $2,940.00 for rent, late charges, and damages to his property. With this complaint, he filed an affidavit for attachment, supported by bond, alleging that Barbara McCrory was about to remove her personal property (already stored by Houston) from the state. On April 10, the circuit court clerk issued a writ of attachment, which was served on April 30. On May 7, McCrory filed a motion to dissolve the writ, which contained, in part, a prayer for an immediate hearing.\nSubsequently, Barbara McCrory, individually and on behalf of her son, Thomas McCrory, filed a counterclaim and an amended complaint and counterclaim against Houston and Johnson alleging, among other causes of action, that they had violated the Arkansas forcible entry and detainer code provisions, Ark. Code Ann. \u00a7\u00a7 18-60-301 \u2014 18-60-312 (1987), by removing her property from the house. The McCrorys also asserted that the actions of Houston and Johnson in attaching the property pursuant to our prejudgment attachment code provisions denied them (the McCrorys) due process of law guaranteed by the fourteenth amendment. The McCrorys asserted that the attachment code provisions are unconstitutional because they do not require that prompt notice of the attachment or of possible state and federal exemptions be given to the debtor and do not make available a prompt hearing at which a debtor can claim exemptions. Additionally, the McCrorys joined appellee Jacquetta Alexander, the Circuit Clerk of Pulaski County, as third-party defendant, alleging that she denied them due process of law by issuing the writ of attachment through her agent.\nAt a hearing on May 29, 1987, the circuit court, Special Judge Ralph Patterson presiding, sustained the writ of attachment granted in favor of Johnson. In a pretrial order filed on July 29, 1987, the trial court dismissed with prejudice the portion of the McCrorys\u2019 counterclaim concerning the constitutionality of our prejudgment attachment code provisions on the basis of this court\u2019s holding in Springdale Farms, Inc. v. McIlroy Bank and Trust, 281 Ark. 371, 663 S.W.2d 936 (1984), that the provisions are constitutional. The trial court also dismissed the claim against defendant Alexander. On July 30, 1987, the trial court, contravening Judge Patterson\u2019s decision, discharged the writ of attachment because Johnson had not met his burden of showing, pursuant to Ark. Code Ann. \u00a7 16-110-101 (1987), that Barbara McCrory was about to remove or had removed her property, or a material part thereof, from the state.\nAt the conclusion of the jury trial, the court entered judgment for Johnson against Barbara McCrory for $2,862.40 damages, plus reasonable attorney\u2019s fees, interest, and costs and dismissed with prejudice the McCrorys\u2019 counterclaim against Johnson and Houston. From this order, the McCrorys appeal.\nI. TIMELINESS OF APPEAL.\nThe appellees assert that the McCrorys\u2019 appeal on the constitutionality of the code provisions and on the dismissal of the claim against Alexander should be dismissed as untimely. We disagree.\nAs previously noted, in a pretrial order of July 29,1987, the trial court dismissed the McCrorys\u2019 claim concerning the constitutionality of our code provisions and also the claim against third-party defendant Jacquetta Alexander. The McCrorys did not file a notice of appeal at this time but instead waited until after the trial court rendered final judgment in the case. Although the notice of appeal was filed within thirty (30) days of the order rendering final judgment, it was not filed within thirty (30) days of the pretrial order.\nIt is clear we would have dismissed the appeal if the McCrorys had appealed from this intermediate order since such orders are not final and appealable unless Ark. R. Civ. P. 54(b) is utilized. See Rone v. Little, 293 Ark. 242, 737 S.W.2d 152 (1987); Kilcrease v. Butler, 291 Ark. 275, 724 S.W.2d 169 (1987); 3-W Lumber Co. v. Housing Auth. for the City of Batesville, 287 Ark. 70, 696 S.W.2d 725 (1985). See also Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988); Burnley v. Mutual of Omaha, 291 Ark. 185, 723 S.W.2d 363 (1987). Granted, the McCrorys could have asked for certification under 54(b) in order to appeal from these orders. However, they had no duty to do so. The underlying policy of Rule 54(b) is to avoid piecemeal appeals, not encourage them. Murry v. State Farm Mut. Auto.Ins. Co., 291 Ark. 445, 725 S.W.2d 571 (1987). Accordingly, the appellees\u2019 contention has no merit.\nII. CONSTITUTIONALITY OF OUR PREJUDGMENT ATTACHMENT CODE PROVISIONS.\nThe McCrorys contend that our prejudgment attachment code provisions [Ark. Code Ann. \u00a7\u00a7 16-110-101 \u2014 16-110-309 (1987)] violate the due process clause of the fourteenth amendment because they do not require that prompt notice be given to the debtor of the attachment or of possible state and federal exemptions and do not make available a prompt hearing at which the debtor can claim exemptions. In addition, the appellants challenge our code provisions on the grounds that they create a risk of erroneous deprivation by allowing writs of attachment to be issued by a circuit clerk instead of a judge. All of their contentions have merit.\nBefore we scrutinize the appellants\u2019 claims, we note that they served the office of the Attorney General with copies of their amended complaint and counterclaim in accordance with Ark. Stat. Ann. \u00a7 34-2510 (Repl. 1962) [Ark. Code Ann. \u00a7 16-111-106 (1987)], which gives the Attorney General the discretionary right to appear in any case where an Arkansas statute is challenged as unconstitutional. The office of the Attorney General declined the invitation by letter to the trial court and did not participate as a party litigant.\nIn Springdale Farms, Inc., supra, we held that our prejudgment attachment scheme was constitutional in that it sufficiently met six procedural due process \u201csafeguards\u201d necessary for a valid prejudgment attachment. These safeguards, which emanate from North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975); Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); Fuentes v. Shevin, 407 U.S. 67 (1972); and Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), are as follows:\n(1) the affidavit for the writ of attachment must allege specific facts which justify attachment [Ark. Code Ann. \u00a7 16-110-106 (1987)];\n(2) the petitioner must post a bond guaranteeing the defendant damages if the writ is dissolved [Ark. Code Ann. \u00a7 16-110-107 (1987)];\n(3) the respondent or defendant must be allowed to regain possession by posting bond [Ark. Code Ann. \u00a716-110-117 (1987)];\n(4) requisite proof of the need for a writ must be made before a judge;\n(5) an immediate hearing must be allowed, and at the hearing, the burden of proof is with the petitioner to justify the attachment; and\n(6) if the writ is dissolved, damages and attorney\u2019s fees must be awarded to the debtor [Ark. Code Ann. \u00a7 16-110-131 (1987)].\nIn so holding, we acknowledged that our statutory scheme did not exactly meet the fourth requirement because it permits writs to be granted by a circuit clerk instead of a judge. Ark. Code Ann. \u00a7 16-110-106 (1987). Notwithstanding, we found that our scheme met the \u201csafeguards\u201d test and satisfied due process for the following reason: \u201cBecause our statute requires a recital [by the creditor in an affidavit] of specific facts [of the grounds for the attachment] by one with personal knowledge, the Clerk\u2019s role rises above that of a mere court functionary.\u201d See Ark. Code Ann. \u00a7 16-110-106 (1987); Ark. Code Ann. \u00a7 16-110-101 (1987).\nIn addition, we found that the fifth safeguard was adequately met because a debtor (1) can retain possession of his attached property by posting a bond under Ark. Stat. Ann. \u00a7 31-124 (Repl. 1962) [Ark. Code Ann. \u00a7 16-110-117 (1987)]; (2) can, upon reasonable notice to the plaintiff, move at any time to discharge the attachment under Ark. Stat. Ann. \u00a7 31-128 (Repl. 1962) [Ark. Code Ann. \u00a7 16-110-118 (1987)]; and (3) can move to discharge the attachment at any time before the attachment is sustained under Ark. Stat. Ann. \u00a7 31-149 (Repl. 1962) [Ark. Code Ann. \u00a7 16-110-130 (1987)].\nAfter Springdale Farms, Inc., we decided In the Matter of Evatt, 291 Ark. 153, 722 S.W.2d 851 (1987), in which we held that our temporary guardianship statute was unconstitutional. In this decision, we analyzed the issue of whether the state procedures met procedural due process by utilizing the \u201cbalancing of interests\u201d test enunciated in Matthews v. Eldridge, 424 U.S. 319, 335 (1976):\n[Identification of the specific dictates of due process generally requires consideration of three distinct factors. First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government\u2019s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.\nAlthough Matthews predated Springdale Farms, Inc., we did not explicitly use the Matthews analysis in Springdale Farms, Inc.\nOther courts utilizing the Matthews procedural due process analysis have declared certain postjudgment garnishment or attachment statutes unconstitutional because they did not require notice of possible state or federal exemptions and did not require a prompt hearing at which to claim these exemptions. Davis v. Paschall, 640 F. Supp. 198 (E.D. Ark. 1986); Dionne v. Bouley, 757 F.2d 1344 (1st Cir. 1985); Finberg v. Sullivan, 634 F.2d 50 (3rd Cir. 1980). See also Clay v. Fisher, Inc., 584 F. Supp. 730 (S.D. Ohio 1984); Harris v. Bailey, 574 F. Supp. 966 (W.D. Va. 1983); Deary v. Guardian Loan Co., 534 F. Supp. 1178 (S.D.N.Y. 1982); Betts v. Tom, 431 F. Supp. 1369 (D. Hawaii 1977).\nIn Dionne, supra, the court held that in order for a postjudgment attachment statute to pass constitutional muster, it must require that the debtor be informed of the attachment, of the availability of a prompt procedure to challenge the attachment, and of the fact, generally stated, that there are certain exemptions under state and federal law which he or she may be entitled to claim with respect to the attached property.\nIn Davis, supra, the court held that the Arkansas postjudgment garnishment statutes were unconstitutional because they did not:\nrequire notice to the judgment debtor informing him of the garnishment, notice of possible state and federal exemptions, a prompt hearing to permit the judgment debtor to claim exemptions, an affidavit from the creditor stating that the writ would not cause the attachment of exempt funds, or the posting of bond to compensate the judgment debtor for injury in case of a wrongful garnishment.\nThe facts of the case before us, coupled with the rationale expressed in the recent federal decisions and the explicit use of the Matthews balancing test in those cases and in Evatt, supra, convinces us that we must reexamine our position in Springdale Farms.\nUnder Matthews, supra, a balancing of the interests involved is necessary. The private interest affected in this case by the Arkansas prejudgment attachment procedure is Barbara McCrory\u2019s interest in her personal property. This interest is clearly sufficient to require procedural due process.\nThe risk of erroneous deprivation of a debtor\u2019s property interests through the use of the current Arkansas prejudgment attachment code provisions is substantial. First, there is no requirement that the debtor be given immediate notice of the attachment. Ark. Code Ann. \u00a7 16-110-111 (1987) merely provides that \u201cthe order of attachment shall be executed by the sheriff or other officer without delay.\u201d\nThe facts of the instant case illustrate the inherent deficiency in our procedure. The circuit court issued the writ on April 10, 1987. However, Barbara McCrory was not served until April 30, 1987. Timely notice in this case may well have shortened the length of time in which Barbara McCrory was deprived of her property. Thus, the probable value of this additional procedure in decreasing the risk of an erroneous deprivation is considerable. See Matthews, supra.\nSecondly, the absence in our prejudgment attachment code provisions of a requirement that prompt notice of possible state or federal exemptions be given to the debtor subjects him or her to an enhanced risk of erroneous deprivation. As in the instant case, a debtor may have property which may be exempt from attachment under state [Ark. Const, art. 9] or federal law. If a debtor fails to receive notice of possible exemptions, the likelihood that he or she will suffer an unwarranted property loss is markedly heightened.\nOur postjudgment garnishment code provisions now require that a debtor be given notice of possible state or federal exemptions. See Ark. Code Ann. \u00a7 16-110-402(1)(A) (Supp. 1988). Our prejudgment attachment scheme should contain the same safeguard since the process due a debtor before judgment is greater than that due after judgment. See Dionne, supra. See also, Finberg, supra.\nThirdly, our prejudgment code provisions do not provide a mechanism, as our postgarnishment code provisions do [Ark. Code Ann. \u00a7 16-110-402(5) (Supp. 1988)], by which a debtor can receive a prompt hearing to claim exemptions. As noted above, in Springdale Farms, Inc., supra, we held that our procedure satisfied the immediate hearing requirement because a debtor (1) can retain possession of his attached property by posting a bond under Ark. Stat. Ann. \u00a7 31-124 (Repl. 1962) [Ark. Code Ann. \u00a7 16-110-117 (1987)]; (2) can, upon reasonable notice to the plaintiff, move at any time to discharge the attachment under Ark. Stat. Ann. \u00a7 31-128 (Repl. 1962) [Ark. Code Ann. \u00a7 16-110-118 (1987)]; and (3) can move to discharge the attachment at any time before the attachment is sustained under Ark. Stat. Ann. \u00a7 31-149 (Repl. 1962) [Ark. Code Ann. \u00a7 16-110-130 (1987)].\nThese procedures are inadequate to prevent an erroneous deprivation. The availability of a prompt hearing, where the burden of proof is with the petitioner to justify the attachment, is fatally absent. Although Ark. Code Ann. \u00a716-110-130 allows the debtor, before the attachment is sustained, to move to discharge the attachment, it also provides that \u201cthe hearing . . . may be postponed by the court, upon sufficient cause, from time to time.\u201d The fact that a debtor can retain possession of his attached property by posting a bond, although helpful to some debtors, is wholly inadequate as a substitute for an immediate hearing, especially for an indigent debtor, who cannot avail herself of this procedure.\nFinally, our prejudgment code provisions are deficient because they permit writs of attachment to be issued by a court clerk instead of a judge. As noted above, in Springdale Farms, Inc., supra, we held that this procedure met the \u201csafeguards\u201d test and satisfied due process for the following reason: \u201cBecause our statute requires a recital [by the creditor in an affidavit] of specific facts [of the grounds for the attachment] by one with personal knowledge, the Clerk\u2019s role rises above that of a mere functionary.\u201d See Ark. Code Ann. \u00a7 16-110-106 (1987); Ark. Code Ann. \u00a7 16-110-101 (1987).\nArk. Code Ann. \u00a7 16-110-106 provides in pertinent part as follows:\n(a) (1) An order of attachment shall be made by the clerk of the court in which the action is brought in any case mentioned in subdivision (1) of \u00a7 16-110-101, where there is filed in his office an affidavit of the plaintiff or of someone in his behalf, showing:\n(A) The nature of the plaintiffs claim;\n(B) That it is just;\n(C) The amount which the affiant believes the plaintiff ought to recover; and\n(D) The existence in the action of one (1) of the grounds for an attachment enumerated in subdivision (1) of \u00a7 16-110-101. In the case mentioned in subdivision two (2) of \u00a7 16-110-101, where it is shown by affidavit or by the return of the sheriff or other officer upon the order for delivery of the property claimed, the facts mentioned in that subdivision must exist.\nIt is true that this code provision requires more than mere conclusory allegations in the creditor\u2019s affidavit, North Georgia Finishing, Inc., supra, before a clerk may execute an order of attachment. However, this fact does not alleviate the risk of erroneous deprivation caused by the issuance of a writ without examination by a judge. A judge has the superior ability to determine if the affidavit sufficiently shows (1) the nature of the plaintiffs claim, (2) that it is just, (3) the amount which the affiant believes the plaintiff ought to recover, and (4) the existence in the action of one of the grounds for attachment as enumerated in subdivision (1) of \u00a7 16-110-101. Absent a judge\u2019s participation or supervision, there is a significant risk that a writ will be issued even though the requirements of the statute have not been met. This danger explains the rationale of North Georgia Finishing, Inc., supra, which recognized that the issuance of prejudgment writs of attachment by a judge was an important procedural safeguard necessary to satisfy due process.\nThe foregoing defects in our code provisions must be balanced against \u201cthe Government\u2019s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.\u201d See Matthews, supra.\nThe state has a strong interest in providing equitable procedural safeguards which protect the interests of both creditor and debtor. It is clear that requiring notice of attachment and of possible exemptions would not place a great burden on the state. Dionne, supra. However, a significant burden would be placed on the state judicial machinery by requiring a prompt hearing and the issuance of writs of attachment by a judge. Notwithstanding, the risk of erroneous deprivation of property interests through the use of the current prejudgment attachment procedure and the benefit of the additional safeguards substantially outweigh the burden incurred due to the additional or substitute procedures.\nAccordingly, the Arkansas prejudgment attachment code provisions are struck down. Springdale Farms, Inc., supra, is overruled to the extent it is inconsistent with this opinion.\nIII. ISSUES ON REMAND.\nA. DISMISSAL OF THE CLAIM AGAINST JACQUETTA ALEXANDER.\nThe McCrorys contend that the trial court erred in dismissing the claim against circuit court clerk Jacquetta Alexander in that it stated a cause of action under 42 U.S.C. \u00a7 1983 (1982). We hold otherwise.\nA county court clerk can be sued for damages in a \u00a7 1983 suit. See Scott v. Dixon, 720 F.2d 1542 (11th Cir. 1983), cert. denied, 469 U.S. 832 (1984). However, a clerk may have either absolute or qualified immunity for acts done in his or her official capacity. Absolute immunity \u201cbars a suit at the outset and frees the defendant official of any obligation to justify his actions,\u201d while qualified immunity \u201cis in the nature of an affirmative defense and protects an official from liability only if he can show that his actions did not contravene clearly established statutory or constitutional rights of which a reasonable person in his position should have known.\u201d Gray v. Bell, 712 F.2d 490 (D.C. Cir. 1983), cert. denied, 465 U.S. 1100(1984). See also Imbler v. Pachtman, 424 U.S. 409 (1976).\nClerks who perform ministerial functions, such as filing orders and notifying parties, are entitled only to qualified good faith immunity. Henriksen v. Bentley, 644 F.2d 852 (10th Cir. 1981). A court clerk who performs a judicial function, such as issuing warrants, enjoys absolute immunity in a \u00a7 1983 suit. Scott, supra. See also Sharma v. Stevens, 790 F.2d 1486 (9th Cir. 1986).\nHaving determined above that a judge, not a clerk, should issue writs of attachment, it follows that the act of issuing such writs is a judicial function. See Scott, supra. Thus, Jacquetta Alexander was entitled to absolute judicial immunity. The trial court properly dismissed the claim against her.\nB. FAILURE TO INSTRUCT THE JURY.\nThe McCrorys contend that the trial court erred when it refused to instruct the jury that to the extent section 19 of the lease might be construed to authorize the landlord to reenter the premises upon a default by the tenant and remove the tenant\u2019s possessions, such section of the lease was invalid, illegal, and not to be enforced against the tenant. We agree.\nSection 19 of the lease provided in part that upon default by the tenant, the \u201clessor may re-enter the premises remove all persons therefrom\u201d and also that the \u201c[l]essor shall have a lien on all buildings and moveable property on the premises belonging to the lessee while rent is in arrears.\u201d In Gorman v. Ratliff, 289 Ark. 332, 712 S.W.2d 888 (1986), we held that lease provisions authorizing self-help by a landlord are illegal and invalid. Therefore, section 19 of the lease, to the extent it allowed self-help by Johnson as landlord, was also illegal and invalid.\nThe McCrorys proffered the following instruction:\nYou are instructed to the extent that section 19 of the lease signed by Barbara McCrory and Brad Houston might authorize Mr. Houston to reenter the premises upon a default by Barbara McCrory and eject Barbara McCrory or Thomas McCrory from the premises or remove the possessions of Barbara or Thomas McCrory from the premises, then such section of the lease is invalid, illegal, and shall not be enforced against Barbara McCrory or Thomas McCrory.\nThe trial court instead gave the following instruction:\nMs. McCrory has asserted that Thomas J. Johnson and Brad W. Houston have violated Ark. Stat. Ann. 34-1501 which is called the Forcible Entry and Detainer Statute. This statute is concerned with certain obligations and rights of both landlords and tenants.\nIn order to prove this claim, Ms. McCrory has the burden of proving the following elements:\nFirst, that at the time she was a tenant at 23 Lucy Lane, Brad W. Houston carried away or caused to be carried away property belonging to Ms. McCrory without her permission.\nSecondly, that such intentional conduct was a proximate cause of- any damages suffered by Ms. McCrory.\nIt is the obligation of a trial judge to instruct the jury upon the law of the case with clarity and in such a manner as to leave no basis for misrepresentation or mistake. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). As we stated in Holiday Inns, Inc. v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982), quoting Beevers v. Miller, 242 Ark. 541, 414 S.W.2d 603 (1967):\nEven if the court\u2019s general instructions could be said technically to have covered the matter in a general way, it is error to refuse to give a specific instruction correctly and clearly applying the law to the facts of the case, even though the law in a general way is covered by the charge given unless it appears that prejudice has not resulted.\nThe instruction given to the jury covered the law of the case in a very general and incomplete manner. The jury very well may have been misled or confused by this instruction. The McCrorys\u2019 proffered instruction correctly and clearly applied the law to the facts of the case. Therefore, the trial judge erred by not giving this instruction.\nThe appellees argue that section 19 of the lease was not relevant to the issues in the case. This argument is meritless. The illegality of this section was relevant to the issue of whether the appellees\u2019 actions in removing the property were contrary to law \u2014 which is what the McCrorys\u2019 counterclaim, in part, was based upon. Furthermore, not only was the entire lease admitted as an exhibit, but also the validity of this section was contested from the beginning of the case.\nAdditionally, the appellees argue that the proifered instruction was not a correct instruction in that it was not simple, brief, impartial, and free from argument. See Paul v. Safley Const. Co., 287 Ark. 412, 700 S.W.2d 55 (1985). This contention is also without merit.\nC. COMMENT BY THE TRIAL JUDGE.\nThe McCrorys assert that the trial court erred when it informed the jury that the writ of attachment was legal. We agree.\nThe following exchange occurred at trial between Barbara McCrory, Mr. DePriest (her lawyer), the trial judge, and the jury.\nQ. DePriest: Did you ever get access to your property?\nA. McCrory: Quite awhile later the Court dissolved the Writ of Attachment and determined it wasn\u2019t legal and let me have it.\nThe Court: No, you ladies and gentlemen, disregard that. The Court didn\u2019t say the Writ of Attachment wasn\u2019t legal. To the contrary, the Writ of Attachment, of course, was legal.\nAs previously noted, the trial court discharged the writ of attachment (which had been issued by the circuit clerk) because Thomas Johnson had not met his burden of showing, pursuant to Ark. Code Ann. \u00a7 16-110-101 (1987) that Barbara McCrory was about to remove or had removed her property, or a material part thereof, from the state. The trial court, in effect, found that under the circumstances the issuance of the writ was not authorized or permitted by our code provisions. Black\u2019s Law Dictionary 673, 803 (5th ed. 1979) defines \u201cillegal\u201d as \u201cagainst or not authorized by law,\u201d and \u201clegal,\u201d in part, as \u201cpermitted by law.\u201d By incorrectly stating at trial that \u201cthe Writ of Attachment, of course, was legal,\u201d the court may have led the jury to mistakenly believe that the writ was permitted or authorized by law (legal) and erroneously conclude that the McCrorys did not have a cause of action based upon the wrongful issuance of the writ. It is reversible error for a trial court to make an incorrect statement or conclusion of law which tends to mislead the jury in arriving at its verdict. Kidd v. Gardner Associated, 92 Idaho 548, 447 P.2d 414 (1968);Gaito v. City of Pittsburgh, 390 Pa. 409, 135 A.2d 746 (1957). See also Haseman v. Union Bank of Mena & Haseman, 262 Ark. 803, 562 S.W.2d 45 (1978). The trial court\u2019s comment was improper and should not have been made.\nD. EXCLUSION OF TESTIMONY.\nThe McCrorys argue that the trial court erred in excluding the testimony of Elizabeth Baxley because her testimony was both relevant and admissible, and its exclusion was prejudicial to the McCrorys. We hold otherwise.\nOn March 30, 1987, Barbara McCrory submitted a complaint to the Prosecuting Attorney\u2019s Office concerning the removal of her property from the house that she had leased from Johnson through his agent, Houston. Elizabeth Baxley, a paralegal in the Prosecuting Attorney\u2019s Office, contacted Keith Vaughn, appellee Houston\u2019s attorney, concerning the property.\nDuring trial, the court informed the McCrorys that Baxley\u2019s testimony would not be admissible but that it would allow McCrory to proffer this testimony. Baxley testified in chambers that Vaughn told her that he had advised Houston not to take the property.\nVaughn\u2019s advice to Houston to not take the property was protected under the attorney-client privilege since it was made for the purpose of facilitating the rendition of legal services between a lawyer and client. Ark. R. Evid. 502(b)(1). Under Rule 502, Houston had the privilege to prevent Elizabeth Baxley from disclosing this confidential communication. Therefore, the trial court acted properly in excluding her testimony.\nReversed and remanded.\nPurtle, and Newbern, JJ., not participating.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "James DePriest and Griffin J. Stockley, Central Arkansas Legal Services, for appellants.", "Vaughan and Bamburg, by: Keith Vaughan, for appellees Thomas J. Johnson and Brad W. Houston.", "Ivester, Henry, Skinner & Camp, A Professional Corporation, by: Robert Keller Jackson, for appellee Jacquetta Alexander." ], "corrections": "", "head_matter": "Barbara McCRORY, Individually, and Thomas McCrory, a Minor, by His Mother and Next Friend, Barbara McCrory v. Thomas J. JOHNSON, Brad W. Houston, and Jacquetta Alexander, in Her Official Capacity as Pulaski County Circuit Clerk\n88-19\n755 S.W.2d 566\nSupreme Court of Arkansas\nOpinion delivered July 18, 1988\nJames DePriest and Griffin J. Stockley, Central Arkansas Legal Services, for appellants.\nVaughan and Bamburg, by: Keith Vaughan, for appellees Thomas J. Johnson and Brad W. Houston.\nIvester, Henry, Skinner & Camp, A Professional Corporation, by: Robert Keller Jackson, for appellee Jacquetta Alexander." }, "file_name": "0231-01", "first_page_order": 257, "last_page_order": 272 }