McCarty v. Board of Trustees

John E. Jennings, Chief Judge,

dissenting. If this were a matter of first impression it certainly would seem the fair thing to do to let this officer receive a pension, to the extent that we can glean the circumstances of this case from the record. The problem, however, is that we are an appellate court bound by certain strictures, imposed by statute or decision, which regulate our proper function on appeal. We are not a “knight-errant, roaming at will” with the power to right every wrong, real or imagined. See Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921).

In the case at bar the board' declined to award disability retirement benefits to the appellant in April 1989. Indeed, the board had no authority to do otherwise since by statute such benefits may not be awarded unless the physician member on the board of trustees certifies that the officer is physically permanently disabled. See Ark. Code Ann. § 24-ll-423(a)(l). No appeal was taken from the board’s decision, nor does there appear-to have been a request under the statute for a second evaluation by another physician. In February of 1990 appellant retained counsel who wrote a letter to the board requesting “reconsideration.”

As I understand the majority opinion it is the board’s refusal to award pension benefits to the appellant in this “reconsideration” proceeding that the court finds to be arbitrary and capricious and not supported by substantial evidence. In my view the court merely substitutes its judgment for that of the board. This we cannot do. Cf. Helena-West Helena Sch. Dist. v. Davis, 40 Ark. App. 161, 843 S.W.2d 873 (1992).

Equally troubling is the majority’s willingness to explore the record in an attempt to discover error. In Johnson v. State, 17 Ark. App. 125, 704 S.W.2d 647 (1986), we said:

On appeal the abstract of the record constitutes the record and the appellate court considers only that which is contained in the abstract. We have often stated that where the appellant’s abstract does not contain the testimony on which he bases his argument we will not explore the record for prejudicial error.

The majority’s extensive references to the transcript leave no doubt that we are abandoning the rule, at least in this particular case.

For the reasons stated, I respectfully dissent.