Shannon v. Wilson/Dissent Newbern
DAVID NEWBERN, Justice, dissenting. It is indeed proper for an appellate court of last resort to overrule a prior decision when that decision was made on the basis of a mistake or when conditions have changed so as to make it outmoded. Stare decisis does not require stagnation. The law develops through the application of tried-and-true principles to changing times. That is not what the majority is about in this case.
In Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965), we recognized that the General Assembly had criminalized giving or selling liquor to an intoxicated person or to a minor. We wrote, however, that
Even if the prohibition against the sale of liquor to an intoxicated person [the subject at hand; see Ark. Code Ann. § 3-3-209 (Repl. 1996)], had the comprehensive implications that the appellant attributes to it, [i.e., civil liability of the seller] we do not see how the impact of the statute could be confined to those who sell liquor, legally or illegally. The same reasoning would be applicable in the case of a person entertaining his friends in his home. . . . It may be that a Dramshop Act is to be desired, but such a measure should be the result of legislative action rather than of judicial interpretation.
The legislation to which we referred in the Carr case appeared in Ark. Stat. Ann. § 48-903 (1947). At the legislative session following our decision, the General Assembly added Act 277 of 1967 which made it a misdemeanor chargeable to one who would "knowingly sell, give, procure, or otherwise furnish any alcoholic beverage to any person under twenty-one years of age." An exception was provided for furnishing wine for a religious ceremony. A second offense within three years of the first offense was made a felony. The penalty was stiffened somewhat by Act 875 of 1993 which called for a fine and imprisonment rather than stating those penalties in the disjunctive.
Although the majority opinion does not mention it, the law, as found in Ark. Code Ann. § 3-3-202(a)(1j (Repl. 1996), continues to make it a crime "to give . . . or otherwise furnish any alcoholic beverage to any person under twenty-one . . . ." In addition, Ark. Code Ann. § 3-3-201 (Repl. 1996) makes a misdemeanor "The sale, giving away, or other disposition of intoxicating liquor to a minor. . . ." whether it is done knowingly or not. See State v. Jarvis, 244 Ark. 753, 427 S.W.2d 531 (1968).
The majority opinion apparently attempts to limit its effect to sale of alcoholic beverages to minors, but the principle or "public policy" upon which the opinion is based, to the extent it comes from these criminal statutes, cannot be limited to those facts. The policy involves not only sale but giving or furnishing. It involves not only selling, giving, and furnishing alcoholic beverages to minors but giving, selling, and furnishing alcoholic beverages to persons who may not be minors but who are not yet twenty-one years of age. It flies in the face of a basic tenet of the Carr decision. As we said in that case, "we do not see how the impact of the statute could be confined to those who sell liquor, legally or illegally." In that respect, nothing has changed.
Clearly, the public policy expressed by the General Assembly in the regulation of the retail liquor industry and in the criminalization of the sale of liquor to persons under twenty-one has not been extended by that body to impose civil liability. If the decision to do so were one this Court should make, we should have made it in 1965. Our decision then in the Carr case was not an ovine submission to a majority of other state courts. It was, rather, a principled conclusion that basing a departure from the common law on the legislation then extant would be unwise and that the public policy aspect of such a departure required legislative action. None of that has changed.
If we were mistaken in 1965, we surely would have corrected our mistake in one of the several decisions in which the issue has been raised since that time—most recently in Mann v. Orell, 322 Ark. 701, 912 S.W.2d 1 (1995). Rather, we have continuously stated that the issue is one for the General Assembly. In Yancey v. The Beverage House of Little Rock, Inc., 291 Ark. 217, 723 S.W.2d 826 (1987), it was argued that the General Assembly would be powerless to change the law because we had stated it was the consumption of intoxicants, not the sale standing alone, that was the proximate cause of injuries. There, we even went so far as to say "We meant to place no roadblock to legislation commonly called a 'Dramshop Act.'"
Our Carr decision is no more outmoded today than when it was made or reaffirmed over the years. Citizens were not riding horses up to package-store drive-in windows in 1965, 1987, and 1995. Apparently the change on which the majority opinion relies primarily is the fact that some courts have found ways in which to answer the question we have said should be addressed to the General Assembly. Being in a majority, like being politically correct, offers superficial comfort, but it may not be right in the long run. It is especially harmful to the stability of the system we serve for any court to legislate in an area it has consistently staked out as belonging to the legislators.
I respectfully dissent.