EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, November 2, 2010

I Voted: Court Of Appeals Of Arkansas Finds Vote By Legislative Body Doesn't Constitute Settlement Negotiation Under Rule 408

Like its federal counterpart, Arkansas Rule of Evidence 408 provides that

Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution

Basically, Rule 408 deems inadmissible statements made during settlement negotiations. So, does the Rule apply to the vote of a legislative body to resolve a dispute? According to the recent opinion of the Court of Appeals of Arkansas in Weaver v. Collins, 2010 WL 4231468 (Ark.App. 2010), the answer is "no."

In Collins, Roosevelt Collins

filed a complaint against the City [of Helena-West Helena]...In his complaint, Collins claimed that he worked for the City of West Helena for more than twenty years and was employed as head of the street department for the last seven. When the West Helena City Council approved a budget for fiscal year 2005, Collins claimed that he was constructively fired from his position....Collins argued that then-mayor Johnny Weaver had the exclusive power to appoint him to the head of the street department, and the city council did not have the authority to remove him. Therefore, Collins sought a writ of mandamus requiring the mayor to reinstate him to his former position and to order the city council not to interfere with his reinstatement. Collins further sought "back pay for any time lost from his legitimate position." legitimate position.”

At trial, Collins called former alderman Calvin Holden, who

testified that he was a city-council member in West Helena in 2005, and that during the political fight the council was having with the mayor, the council voted to hire a new head of the street department. He said the council voted to hire Bobby Jones to replace Collins and to increase Jones's salary from the $21,000 Collins was receiving to $35,000. He said that when the city attorney explained to them that they had "made a violation" in terminating Collins from his position, they voted to compensate Collins for being fired.

The City objected that this testimony violated Arkansas Rule of Evidence 408, but the trial judge overruled the objection, and the jury eventually awarded Collins $33,000 in damages, the amount that the city council voted to award Collins.

The City thereafter appealed, but the Court of Appeals of Arkansas affirmed,

agree[ing] with Collins that Rule 408 ha[d] no bearing in this matter. A vote of a legislative body to resolve a dispute, which is then approved by the signature of the chief executive of that body, is not a negotiation. It is a resolution of a debt. The testimony and evidence before the trial court was that the city council met and voted to pay Collins $33,000.

I agree with the court. To me, the key element of a settlement negotiation is a meeting between the two sides. That was not the case in Collins because Collins was not involved in the vote by the city council.



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