concurring in part and dissenting in part.
I agree with the majority that Judge Simes was given no notice of allegations not contained in this court’s referral in Weaver v. City of West Helena, 367 Ark. 159, 238 S.W.3d 74 (2006). However, because I would hold that the Judicial Discipline & Disability Commission (“Commission”) clearly erred in finding that Judge Simes violated the Code of Judicial Conduct on the remaining allegations, I dissent in part.
At the conclusion of the final hearing on January 26, 2005, Judge Simes stated “I had planned to read into the record the court’s decision in its entirety as it relates to the question of recusal, but the court’s calendar simply has not permitted me to complete it. ^Notwithstanding that, the court is denying the motion to recuse.” On April 28, 2005, an order was entered denying the motion for recusal and imposing sanctions under Ark. R. Civ. P. 11 for the reasonable fees and costs expended by the City of West Helena in responding to the motion for recusal. That order was appealed to this court and reversed in Weaver v. City of West Helena, supra.
In Weaver, this court determined that Judge Simes conducted a de facto Rule 11 hearing without notice to Murray and Weaver and stated that “no separate motion for sanctions was made in this case, and such a motion is required by Rule 11 before sanctions may be imposed.” This is simply wrong.
Rule 11 states that “[i]f a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction.” Ark. R. Civ. P. 11(a). That Rule 11 provides for a court to determine if sanctions are warranted absent a motion is consistent with the trial court’s inherent authority to protect the integrity of the proceedings in actions pending before it. City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990). Federal courts have addressed this issue, and this court has relied upon federal opinions interpreting Rule 11. See Chlanda v. Killebrew, 329 Ark. 39, 945 S.W.2d 940 (1997). In Katz v. Looney, 733 F.Supp. 1284 (W.D.Ark.1990), the court stated that no hearing was required, and on its own initiative, imposed Rule 11 sanctions against a litigant for scandalous and libelous statements made against a party, a magistrate, and the trial judge who imposed the sanctions. Weaver incorrectly interprets Rule 11 and should be overruled.
|27The notice requirement found in subsection (b) applies to a motion for sanctions and requires that a motion for sanctions be served as provided in Rule 5, but not filed with the court unless within 21 days of service the challenged allegation is not withdrawn or corrected. See Ark. R. Civ. P. 11(b). Plainly, subsection (b) does not apply to the court acting on its own initiative.
Even if Weaver were correct in holding that a trial court must give notice and “attempt to establish the falsity of the allegations” before conducting a hearing or imposing sanctions, Weaver was the first case to so hold. Thus, Judge Simes’ failure to file a motion, serve it on Murray and Weaver, and attempt to establish the falsity of the allegations before holding a hearing on Rule 11 sanctions is at most an abuse of discretion. When this court has previously found that a trial court abused its discretion in ruling on motions for Rule 11 sanctions, the trial judges were not referred to the Commission. See Williams v. Martin, 335 Ark. 163, 980 S.W.2d 248 (1998); Crockett & Brown, P.A. v. Wilson, 321 Ark. 150, 901 S.W.2d 826 (1995). In fact, the case relied on in Weaver for referring Judge Simes to the Commission, Walls v. State, 341 Ark. 787, 20 S.W.3d 322 (2000), did not involve Rule 11 sanctions, and the trial judge in that case was not referred to the Commission.
The majority contends that Judge Simes knew that he was supposed to address the recusal motion before proceeding to the Rule 11 issues and that his failure to do so demonstrates bad faith. Judge Simes did state several times that he was aware that he needed to determine the motion for recusal before he returned to the other matters in the case. Judge I^Simes did not state that he knew he needed to issue a ruling on the record before proceeding on Rule 11. The proponent of a motion is responsible for obtaining a ruling. Ligon v. Rees, 2010 Ark. 223, 364 S.W.3d 19. The allegations in the motion for recusal were the same allegations giving rise to possible Rule 11 sanctions so that evidence concerning the allegations related to both Rule 11 and recusal. There was simply no reason that Judge Simes should not hear evidence concerning both at the same time. The April 28, 2005 order refuted each allegation made in the motion for recusal and accurately reflected the evidence.
Likewise, I cannot agree with the majority that Judge Simes committed legal error by relying upon a withdrawn allegation or that he misrepresented Murray’s testimony in awarding sanctions under Rule 11. At the January 6 and 7 hearings, it was clear that the allegation that Judge Simes had entered a TRO despite knowing that a connected case was pending before another judge was based solely on the fact that the pleadings were filed with the circuit clerk. Yet it was not until January 13, 2005, a week after hearings on two separate days regarding the motions, that Murray withdrew that allegation. Because Murray failed to withdraw the allegation in a timely manner, I cannot say that Judge Simes erred in considering the allegation in imposing sanctions under Rule 11.
The majority also holds that Judge Simes committed legal error by misrepresenting Murray’s testimony regarding “judge shopping.” In his thirty-one-page order, Judge Simes found that Murray admitted that there was an issue of judge shopping on both sides. The record supports this finding; although, Murray also said “we weren’t judge shopping.” | ¡^Relying on Weaver, supra, the majority now holds that Judge Simes erred by misrepresenting Murray’s testimony. I disagree. Judge Simes’ order merely stated that Murray admitted that judge shopping was “an issue” in the case on both sides. This is the plain truth. It is not a misrepresentation, as asserted in Weaver.
On this record, I would find no violation of the Code of Judicial Conduct.