Carl Circo, Professor of Law at the University of Arkansas
By Professor Carl J. Circo
A green building is environmentally sustainable. That is, it meets the needs of the project’s owners and occupants in a way that minimizes adverse impacts on the environment. A green building is more sustainable than a conventional building because it conserves more energy, consumes fewer resources, emits lower levels of contaminants, and generates less waste during construction as well as over its entire life cycle.
The green building movement exemplifies the recurring phenomenon in which law and legal practice evolve to adapt to developments in technology and social policy. As legal attention to the green building movement continues to grow, the movement is beginning to raise many interesting and important legal issues.
There are, for example, broad policy questions about the role that government should play in support of sustainability. Should the government provide incentives and impose mandates to increase the number of private projects that meet green building standards? Should local zoning ordinances, building codes, and other land use laws encourage or even require green buildings in the private sector? To what extent is it appropriate and wise for land use regulations and building codes to incorporate green building standards promulgated by industry organizations? How should government pay for green building programs?
In addition to presenting these policy and theoretical issues, the movement also beckons lawyers in several practical ways. For example, many lawyers have qualified as LEED Accredited Professionals or LEED Green Associates under the certification processes of the Green Building Certification Institute, which is in turn recognized by the U.S. Green Building Council. In the transactional context, attorneys for landlords and tenants have been developing green leases, and attorneys for design professionals, developers, and building contractors have started to add new provisions to construction and design contracts to allocate the special risks associated with green building objectives. From a litigation perspective, lawyers are now evaluating potential liability risks involving green building issues ranging from professional malpractice claims for designs that fail to deliver intended energy efficiency, to construction delay and defect claims that seek damages when a building owner loses anticipated tax credits for a sustainable project.
An article that appeared a few months ago in the Construction Lawyer raises an especially interesting question for sustainability advocates: Is the commercial appeal of sustainable construction tempting too many professionals, including lawyers, to put green marketing ahead of either sustainability or the specific interests of their clients? Ujjval Vyas and Edward Gentilcore write of their concern that “the green building movement has begun to believe its own press releases.” (Growing Demand for Green Construction Requires Legal Evolution, 30 CONSTRUCTION LAW., Summer 2010, at 10.) The authors primarily address a series of technical legal considerations that the green building movement presents for construction lawyers, such as its potential to alter the standard of care for design professionals and the demand it creates for a more precise allocation of legal responsibility for a project’s green objectives. But running in the background of the piece is the overarching theme that lawyers should approach the legal aspects of green building projects with the same level of critical analysis that they routinely bring to other aspects of the practice of law.
Green building literature often uses such pejorative phrases as “greenwashing,” “green marketing,” and “the sustainability bandwagon” to suggest that not everyone who promotes sustainable construction does so with entirely pure motives. How common is it, and how objectionable, for professionals, including lawyers, to claim special expertise to garner more business as much as to advance sustainability? For that matter, even a law professor might elect to write on green buildings in part because it is relatively easy to get a good law review placement for a green building article.
The point here is simply that lawyers representing clients involved with green building projects should ask hard questions. How relevant to the client are the specific green credentials touted by a project participant? To what extent is an industry or trade group using the green building movement to promote its own economic interests? What objective standards are available to measure and test proposed energy efficiency or other sustainable objectives? Where is the data to support claims that certain green building features enhance worker productivity or promote occupant health? Does a proposed public mandate or incentive for sustainable construction pass a rigorous cost-benefit analysis? Who should make meaningful representations about a building’s green features or accept liability when a project does not achieve the promised green status or meet its sustainability goals? To what extent are the social policy objectives of the sustainability movement aligned with the client’s own interests? As green building fever continues to spread throughout the construction industry, clients will benefit from a dose of legal skepticism.
Hunter v. Runyan, 2011 Ark. 45 (2011)
An issue of first impression arose on February 9, 2011, when the Supreme Court of Arkansas was met with the challenge of determining whether subject matter jurisdiction existed between parties in a class-action settlement as the case was no longer adversarial in nature. Because it is well settled that subject-matter jurisdiction “is considered to be a court’s authority to hear and decide a particular type of case,” the court’s decision was highly significant to all future class-actions in Arkansas.
The issue developed when a class action lawsuit of policyholders of supplemental cancer insurance entered into a settlement agreement with the insurance company. A group of plaintiffs objected to the settlement and filed separate motions to intervene and to stay the circuit court’s proceedings. The circuit court approved the settlement agreement and dismissed all class-member’s claims with prejudice. The appellants appealed the approval of the settlement arguing, as a threshold matter, that the settling plaintiffs and the insurance company did not have subject matter jurisdiction because the parties had reached an agreement. The argument being that without adversity between the parties, there is no standing and thus, no subject matter jurisdiction.
The court stated first that Arkansas jurisprudence is not similar to federal jurisprudence in this area regarding subject matter jurisdiction. Arkansas law does not follow the federal concepts of justiciability. Rather “circuit courts are established as the trial courts of original jurisdiction of all justiciable matters and otherwise assigned pursuant to [the Arkansas] Constitution” and the requirement of “cases and controversies” is limited to federal cases under the U.S. Constitution. It then quoted an Arkansas case in the proposition that “an Arkansas court lacks subject-matter jurisdiction if it cannot hear a matter ‘under any circumstances’ and is ‘wholly incompetent to grant the relief sought.’” The court determined that subject-matter jurisdiction, according to these facts, was governed by Rule 23(e) which requires that “the court must approve any settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class.” The language of the rule states that is mandatory, which of course means that issues of justiciability should not intervene. Accordingly, the settling plaintiffs and the insurance company had subject matter jurisdiction.
By: Brandon Tittle
Lawrence v. City of Texarkana, 2011 Ark. 42 (2011)
The Supreme Court of Arkansas delivered an opinion on February 9, 2011 that clarified the interpretation of two important statutes for fire and police departments. The opinion analyzed when fire and police departments may terminate an employee for impermissible conduct that violates a regulation not adopted by the City Board of Directors.
In this case, the appellant was a fire department employee who fled the scene of a domestic dispute disturbance and was subsequently arrested by the police. The appellant was unable to make it to work due to the arrest but switched shifts with a fellow employee. As a result, the Department discharged the appellant because the circumstances surrounding the arrest and his inability to make it to work violated the Department’s disciplinary policy. The appellant argued his termination was wrongful because he was fired according to a rule that clearly dealt with the day-to-day operations and the only body that could adopt such a rule, pursuant to Ark. Code Ann. § 14-51-301(d), was the City Board of Directors.
The two statutes implicated are as follows:
Ark. Code Ann. § 14-51-302. Departmental rules and Regulations.
All employees in any fire or police department affected by this chapter shall be governed by rules and regulations set out by the chief of their respective police or fire departments after rules and regulations have been adopted by the governing bodies of their respective municipalities.
Ark. Code Ann. § 14-51-301. Rules and regulations generally.
(a)(1) The board provided for in this chapter shall prescribe, amend, and enforce rules and regulations governing for the fire and police departments of their respective cities.
(d) The commission shall adopt such rules not inconsistent with this chapter for necessary enforcement of this chapter, but shall not adopt any rule or rules which would authorize any interference with the day-to-day management or operation of a police or fire department.
The court concluded that “as long as the rules approved by the Commission do not interfere with the Department’s day-to-day operation, they are validly approved in compliance with state law.” This allowed section 14-51-301 to be read harmoniously with section 14-51-302. The court determined that the Commission’s enforcement of the Department’s disciplinary policy, which allows termination for criminal conduct, was not an interference with the Department’s day-to-day operations. Thus the test is not whether the conduct falls within the category of day-to-day activities, but whether the rule interferes with the Department’s ability to carry out its normal operations.
By: Brandon Tittle
Dowty v. Riggs, 2010 Ark. 465 (2010)
On December 2, 2010, the Supreme Court of Arkansas held, yet again, that the tort of negligent infliction of emotional distress is not recognized as a cause of action in the state of Arkansas. Although the controversial cause of action is accepted in the majority of jurisdictions, the court decided the facts in Dowty v. Riggs did not warrant a reversal of common law. They did, however, leave the possibility open that facts in a future case could justify the creation of the new tort.
The facts in Dowty were relatively simple. The appellants drove to the house of the appellees to help with yard work when the son of the appellees approached the vehicle and shot one of the appellants in the arm with a .25-caliber pistol. The other two appellants witnessed the event and claimed emotional distress despite the lack of physical injury. The appellee was acquitted of all charges because of mental disease or defect and the appellants decided to file a claim against the appellee’s mother for the negligent infliction of emotional distress. The circuit court granted summary judgment because the cause of action was not recognized in Arkansas so the appellants appealed contending their damages warranted a remedy.
The court began by stating that it will “tread cautiously when deciding whether to recognize a new tort” and will “decline to recognize a new cause of action if there are other sufficient avenues, short of creating a new cause of action, that serve to remedy the situation for a plaintiff.” In its analysis, the court reasoned that the tort hasn’t been recognized because of the long standing belief “there can be no recovery for fright or mental pain and anguish by negligence, where there is no physical injury.” Without physical injury, previous courts have determined damages to be too remote and difficult to ascertain. The court then compared the facts to similar cases in jurisdictions which recognize the tort and determined that other jurisdictions were “unwilling to allow recovery for the breach of a landowner’s duty to an invitee, a duty that is broader than the duty owed to the appellants, who were mere licensees.” The concluded that the appellants “failed to demonstrate that great injury or injustice would result were [it] to continue to uphold the prior decisions of this court.”
By Brandon Tittle
Carr v. Nance, 2010 Ark. 497 (2010)
The Supreme Court of Arkansas, on December 16, 2010, was faced with the challenge of analyzing the landowner immunity exception under the Arkansas Recreational Use Statute for malicious conduct and ultra-hazardous conditions in Carr v. Nance. Generally, landowners in Arkansas experience a high level of immunity from liability to individuals who enter the property for recreational purposes. This immunity, however, can be eliminated in extreme circumstances, as was seen in Carr.
In Carr, the appellee was a sixteen year old boy who enjoyed riding four-wheelers. Occasionally, the appellee drove his four-wheeler on the appellant’s land with consent. On the day in question, the appellee was driving his four-wheeler on the appellant’s land when his neck was struck by an unmarked steel cable that was strung across the road by two trees. The cable quickly threw the appellee to the ground severing his trachea and esophagus. The appellant testified that the use of the cable was intended to prevent trespassers but agreed that it should have been paired with visible warning signs. The appellee was awarded compensatory and punitive damages and the circuit court affirmed under the landowner immunity exception for recreational use. The appellant argued that the elements for the cause of action were not met by the appellee.
Pursuant to Ark. Code Ann. § 18-11-301, landowners are immune from liability to persons entering the landowner’s property for recreational purposes. The exception to liability at issue in Carr requires a “malicious, but not mere negligent, failure to guard or warn against an ultra-hazardous condition, structure, personal property, use or activity actually known to be dangerous.” Ark. Code Ann. § 18-11-307(1). The main elements at issue were whether the appellant’s actions were malicious and whether the use of the cable created an ultra-hazardous condition on the property.
The appellant urged the court to interpret that statute as requiring actual malice as opposed to implied malice. This was due to the appellant’s argument that he did not act with actual malice, which was defined in the case as “the intentional doing of a wrongful act without justification or excuse.” The court decided not to issue a ruling concerning the interpretation of “malicious” because the jury was not instructed on the meaning of the term and because it was submitted to the jury under a general verdict form. Accordingly, the court did not speculate the conclusions of the jury as to the meaning of “malicious” and the argument about its correct interpretation under the statute lives to fight another day.
In order to satisfy the ultra-hazardous element, the jury was instructed to determine whether the activity “(1) cannot be performed without a risk of serious harm to the person or another, regardless of any precautions taken’ and (2) does not normally occur in that community.” The court concluded that “it was not the hanging of a cable per se that constituted the ultra-hazardous activity, but the hanging of an unmarked cable at a dangerous height in an area in which the landowner knows there are people traveling on four-wheelers.” The circuit court ruling was affirmed.
By Brandon Tittle
Montoya v. State, 2010 Ark. 419 (2010)
On November 4, 2010, the Arkansas Supreme Court was met with an issue of first impression regarding Arkansas’s first-time offender statute in the context of prior expunged guilty pleas in other states. The result of this ruling shed light on an area of criminal law crucial to Arkansas defendants: whether individuals can defer and expunge guilty pleas in one state under a first-time offender statute then move to Arkansas and avail themselves of the benefits of Act 346 for new and different charges.
In Montoya v. State, the defendant pled guilty to two felonies in New Mexico and the court dismissed the matter with prejudice and without adjudication of guilt or conviction. The defendant used a first-time offender statute to defer and later expunge the New Mexico charges. Afterwards, the defendant was charged with new crimes in the state of Arkansas where he attempted to expunge them under Act 346, a similar first-time offender statute. The State mainly asserted that the defendant was only permitted to use Act 346 once and that he exhausted it in New Mexico. The court analyzed the language in Ark. Code Ann. § 16-93-303(a)(1)(A), which states:
“Whenever an accused enters a plea of guilty or nolo contendere prior to an adjudication of guilt, the judge of the circuit or district court, in the case of a defendant who has not been previously convicted of a felony, without making a finding of guilt or entering a judgment of guilt and with the consent of the defendant may defer further proceedings and place the defendant on probation for a period of not less than one (1) year, under such terms and conditions as may be set by the court.”
“Conviction” was previously defined by the court as “the result of a criminal trial which ends in a judgment or sentence that the accused is guilty as charged.” Garling v. State, 334 Ark. 368, 372, 975 S.W.2d 435, 437 (1998). The court applied this requirement to only those defendants who availed themselves of the Arkansas statute and not out-of-state ones. The court looked to the intent of the General Assembly in its interpretation of Ark. Code Ann. § 16-93-302(a)(2) to confirm this reasoning. Moreover, because the defendant completed his probation under the New Mexico statute, in lieu of a fine, and because his guilty plea was deferred and never accepted, the court reasoned it did not constitute a “conviction.” Accordingly, the Arkansas Supreme court ruled that the defendant’s expunged guilty under New Mexico’s first-time offender statute did not count as a prior conviction in Arkansas. Therefore, he could avail himself to the first-time offender statute yet again.
This result could change with the amendment of Act 346, which was not in effect at the time of the defendant’s sentencing. Subsection (c) and (d) now permit a deferred guilty plea under Act 346 to constitute a felony “conviction.” The amendment, however, would need to overcome the legislative intent that only in-state convictions are covered by Ark. Code Ann. §§ 16-93-302-03.
Posted by Brandon Tittle
Subteach USA v. Williams, 2010 Ark. 400 (2010)
In a recent Arkansas Supreme Court case decided on October 28th, it was held that substitute teachers who are not directly employed by an “educational institution” but by a private placement company are still disqualified from receiving between-terms (summer/winter break) unemployment benefits.
The appellee in Subteach USA v. Williams was a substitute teacher who filed for unemployment compensation during the summer months. She was not directly employed by the school district but by a private employer who engaged in the hiring, training, and placement of substitute teachers. Her argument was that she was no longer working for the school district because her assignment had ended.
The Arkansas Supreme Court analyzed the statutory language of Ark. Code. Ann. § 11-10-509, which governs the exclusion of benefits for between term employees of educational institutions. The statute states that “with respect to service performed in an instructional, research, or principal administrative capacity for an education institution, benefits shall not be paid based on services for any week of unemployment commencing during the period between two (2) successive academic years or terms.”
In an earlier decision in the same case, the Department of Workforce Services found that the appellee was not prohibited from receiving unemployment compensation during the summer because her employer was not deemed an educational institution pursuant to the statute. The Arkansas Supreme Court, in this issue of first impression, reasoned that the appellee was employed by a private company to perform services “for” an educational institution and that it was of no relevance whether she was actually employed by the school. Thus, the court concluded that the appellee/substitute teacher was excluded from receiving benefits by the statute.
Posted by Brandon Tittle
Dustin Buehler, Assistant Professor of Law at the University of Arkansas
By Prof. Dustin Buehler
Early Sunday morning, November 7, 2010, Americans once again will “fall back” to standard time. The switch to and from daylight saving time irritates a chronically sleep-deprived nation. Most Americans see no reason to engage in this semiannual clock-changing madness. Many wish the annoying ritual would end.
And yet a cost-benefit analysis of daylight saving time shows that the best course of action is actually the opposite: Congress should extend it, not end it. Year-round daylight saving time has the potential to save hundreds of lives each year, decrease net energy consumption, and reduce criminal activity. These benefits significantly outweigh the costs associated with winter daylight saving time.
History of Daylight Saving Time
Most Americans know very little about daylight saving time, and assume it “has something to do with farmers.” In fact, daylight saving time has a storied history. The cost-benefit analysis of changing clocks has been the subject of Benjamin Franklin’s satirical wit, Winston Churchill’s speeches in Parliament, and even a prime-time oval office address by Richard Nixon. Tufts University lecturer Michael Downing notes that daylight saving time is “one of the most persistent political controversies of the last century.”
With the advent of World War I, several nations – including the United States – implemented national daylight saving time, in order to save energy and improve military training conditions. The United States also observed year-round daylight saving time during World War II. The practice did not survive the end of either war, however – each time, agricultural interests successfully lobbied Congress to repeal these acts and return the nation to standard time.
The end of national daylight saving time observance following World War II did not stop states and municipalities from shifting clocks, however. As the New York Times observed in 1965, local action on this issue produced a “clock scramble chaotic enough to confound Father Time, himself.” For example, travelers on a thirty-five minute bus ride from Steubenville, Ohio, to Moundsville, West Virginia had to change their watches seven times if they wanted to keep correct “local” time during their trip. The U.S. Naval Observatory called the United States “the worst timekeeper in the world.”
In response, Congress implemented the Uniform Time Act of 1966 (codified as amended at 15 U.S.C. §§ 260-63, 266-67 (2006)), which required all states to uniformly shift clocks forward on the last Sunday in April, and shift clocks back on the last Sunday in October. The Act superseded all local laws on daylight saving time. States are allowed to “opt out,” although currently only Hawaii and Arizona do not observe daylight saving time.
In 1973 and 1974, during the oil embargo crisis, the United States briefly experimented with year-round daylight saving time as a way to save energy. Congress passed the Emergency Daylight Saving Time Energy Conservation Act of 1973, Pub. L. No. 93-182, 87 Stat. 707. The experiment was short-lived, however. The next year, Congress passed legislation, returning the nation to standard time during the winter months.
Most recently, Congress extended summer daylight saving time observance by four weeks, as part of the Energy Policy Act of 2005 (codified as amended at 15 U.S.C. § 260a (Supp. V 2007)). Americans now “spring forward” on the second Sunday of March, and “fall back” on the first Sunday of November. The goal of this extension was to save energy – the American Council for an Energy-Efficient Economy estimated at the time that expanded daylight saving time would save $4.4 billion and would reduce carbon emissions by 10.8 million metric tons by 2020.
Cost-Benefit Analysis: Extending Daylight Saving Time
Congress should restore year-round daylight saving time. Permanently shifting our clocks forward by one hour would give us an additional hour of afternoon sunlight during winter months, adding an additional hour of darkness during the morning. Although we all would prefer a policy that accrues benefits without costs, there are only so many hours of sunlight each day. Ultimately, the advantages of an additional hour of daylight in the evening outweigh the disadvantages of dark mornings, for several reasons.
1. Year-Round Daylight Saving Time Saves Lives
Not surprisingly, darkness increases the risk of fatal motor-vehicle and pedestrian accidents. During dark winter months, only one commute can be in daylight in most areas of the country. Observing standard time during the winter usually means a morning commute in daylight, and an evening commute in darkness. In contrast, observing daylight saving time during the winter would mean an evening commute in daylight, and a morning commute in darkness. This begs the question: How can we best spend our limited daylight hours during these months?
Studies show that year-round daylight saving time would result in significant net decreases in fatal motor-vehicle and pedestrian accidents. Fatal accidents are much more likely during the evening commute, due to a variety of factors – drivers on their way home are tired, some have alcohol in their bloodstream, and the rush hour is longer and more irregular than the morning commute. As a result, the number of lives that would be saved during an evening commute in daylight outweighs the number of lives that would be lost if the morning commute were in darkness. This is confirmed by a recent study by Rutgers University professors Douglas Coate and Sara Markowitz, which found that winter daylight saving time would produce a thirteen-percent net decrease in pedestrian fatalities, and a three-percent net decrease in motor vehicle occupant fatalities – representing nearly 400 lives saved each year nationwide.
2. Year-Round Daylight Saving Time Saves Energy
Daylight saving time’s energy saving effect is much more difficult to quantify than its effect on motor-vehicle and pedestrian fatalities. That said, winter daylight saving time would likely accrue significant benefits in terms of energy savings.
Daylight saving time saves energy by reducing evening peak electricity loads. Two factors cause “peaks” in electricity usage. First, a peak in demand occurs due to sunset and falling temperatures. Second, a peak in demand occurs when individuals commute home from work – electricity use increases in homes as offices are still using energy to complete their operations. By extending daylight into the evening, winter daylight saving time would allow the peak caused by individuals commuting home to precede the peak caused by sunset and falling temperatures, slightly reducing total energy usage on balance (because it would prevent an unnecessarily pronounced evening peak load, which strains energy sources).
In 2001, a study by the California Energy Commission found that winter daylight saving time would produce a 3.4% net decrease in electricity usage during those months. The Commission concluded that year-round daylight saving time would save Californians between $100 million and $350 million each year.
3. Year-Round Daylight Saving Time Has the Potential to Reduce Crime
In addition to saving lives and energy costs, year-round daylight saving time has the potential to reduce total criminal activity as well, for two reasons. First, several British and American studies show that improved lighting reduces crime. A systematic analysis by researchers in Britain’s Home Office showed a twenty percent decrease in crime in areas with improved street lighting.
Additionally, incident rates for several crimes are low during morning hours and spike during the late afternoon and evening – for these crimes, time of day appears to be one of the most significant factors. For example, recent research by Marcus Felson and Erika Poulsen demonstrates that individuals are much more likely to be victims of robbery during the afternoon and evening, rather than during the morning. Similar patterns exist for several other crimes, including assault, larceny, motor vehicle theft, and juvenile crime.
Thus, during winter months, it makes sense to allocate sparse daylight hours to the late afternoon and evening. Criminals apparently wake up late and stay up late. Extending daylight saving time to winter months has the potential to reduce crime by shifting sunlight to the time of day when it is needed most.
Conclusion
Yes, Americans do not like waking up in the dark, and do not like commuting in the dark. But this is a small price to pay for the benefits of year-round daylight saving time – the saving of lives, the conservation of energy, and the reduction of crime. For these reasons, it’s time to permanently “spring forward” to daylight saving time.
For more on the costs and benefits of daylight saving time, read Prof. Buehler’s article, “Time Well Spent: An Economic Analysis of Daylight Saving Time Legislation,” co-authored with University of Washington School of Law professor Steve Calandrillo, and published in 2008 in the Wake Forest Law Review.
Wagner v. State, 2010 Ark. 289 (2010)
The Arkansas Supreme Court, in an issue of first impression, ruled that the jurisdiction of a “judicial officer” to issue a search warrant is not limited to the county in which he/she was elected. The issue arose with the adoption of Ark. Code Ann. § 16-17-929 and Amendment 80, § 7, which establish additional rules of jurisdiction.
On October 21st, the court dismissed the appeal in Wagner v. State from the Mississippi County Circuit Court by concluding that the statutory language did not bar the district court judge from issuing a warrant outside of his own district. In Wagner, the appellant contended that the District Judge for the Osceola District did not have jurisdiction to issue a search warrant for the Chickasawba District. The appellant relied on the definition of “a judicial officer,” identified in Rule 1.6 of the Arkansas Rules of Criminal Procedure, the unambiguous wording of § 16-17-929(c), and the power delegated to the General Assembly to establish jurisdiction under Amendment 80, to determine that search warrants are limited to the judicial officer’s own district.
The court agreed with the State that the meaning of “any judicial officer” was not affected by the enactment of § 16-17-929 and that the construction of the statute should be read in conformity to § 16-82-201(a), as defined in Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993). In Brenk, the court noted that § 16-82-201 did not “give any indication that the jurisdiction of a judicial officer in issuing search warrants is limited to the county in which the judicial officer was elected or appointed.” Id. at 590, 847 S.W.2d at 7. In its holding in Wagner, the court stated that the adoption of both § 16-17-929 and Amendment 80 did not overturn the precedent in Brenk. The newly adopted statutes were perceived as affecting the judge’s territorial jurisdiction to try a case, but not his/her authority to issue a search warrant. Therefore, Brenk still applies and Arkansas district court judges are not limited to their own district when issuing search warrants.
Posted by Brandon Tittle
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