The appellant was charged with terroristic threatening. Without the knowledge of his counsel and without bringing it to the attention of the judge, Honorable Floyd Lofton, the appellant filed a motion asking Judge Lofton to recuse. In the motion the appellant accused Judge Lofton of criminal misconduct. Upon learning of the motion and its contents, Judge Lofton ordered the appellant to show cause why he should not be held in contempt. The appellant was convicted of criminal contempt, and we reversed, holding Judge Lofton should have recused from the contempt proceeding because he was obviously embroiled in a personal dispute with the appellant. Clark v. State, 287 Ark. 281, 697 S.W.2d 895 (1985). We remanded the case for a hearing before a different judge. In our first opinion we said:
The appellant’s final argument is that the mere filing of the motion to recuse was not contempt. While this situation could fit within the perimeters of our definition of criminal con tempt, see Ex parte Stroud, 167 Ark. 331, 268 S.W. 13 (1925), the underlying factual question will have to be resolved by the trial court upon remand.
[287 Ark. at 227, 697 S.W.2d at 898.]
A hearing was held before Judge Jack Lessenberry, who found the appellant guilty of criminal contempt. We reverse and dismiss because the facts found in the second hearing are not sufficient to form the basis of the contempt conviction.
The motion which formed the basis of the contempt charge accused Judge Lofton of a number of things including illegally incarcerating the appellant, conspiring with a doctor and deputy prosecutor to have the appellant adjudged mentally incompetent for the purpose of harassment and intimidation, depriving the appellant of the right to defend himself by appointing a public defender, sending public defenders to tell the appellant the judge would put him in a mental institution unless he allowed the public defenders to represent him, unprofessionally slandering the appellant by accusing him of “not playing with a full deck” and being “thick skulled,” committing witness bribery as defined by Ark. Stat. Ann. § 41-2608(1 )(a)(iii), making false statements, and intimidating witnesses.
In Judge Lessenberry’s hearing the record of which is before us, no evidence showed that the motion was in any way published by the appellant or presented in such a way as to be disruptive of proceedings before the court or in such a way as to incite disruption or disrespect for the court by others. The motion contained no profanity and was phrased in flat, mostly legalistic language. The motion concluded by saying the appellant planned, as soon as reasonably possible, to have attorneys of his choice present the evidence to the prosecutor “in the proper legal manner” so that charges would be brought against Judge Lofton.
Although Ex Parte Stroud, supra, discussed the subject of a contempt citation brought about by repetitious motions designed to vex the court or delay proceedings, we have no Arkansas case dealing with the question whether the filing of a motion like the one in this case may be the basis of contempt. In Freeman v. State, 188 Ark. 1058, 69 S.W.2d 267 (1934), we were confronted with, in another context, the question whether written words constituted criminal contempt. There, the Pine Bluff Commercial could have been interpreted as interfering in a matter before the court. We found it was also susceptible of being a mere criticism of the law being applied. We held the editor and publisher were purged of the contempt by their affidavits disclaiming any intention to interfere with or degrade the court. A published newspaper article is, of course, vastly different from a motion, stated in legal terms, filed with the court.
There is, however, this language in Freeman v. State, supra:
In order to preserve the dignity and efficiency of courts, it is essential, among other things, that no conduct be permitted which is either a direct or a consequential contempt — a direct contempt which openly insults the court or infringes on its power committed in the presence of the presiding judges, or consequential, which, without open insult or direct opposition, plainly tends to create an universal disregard of their authority. In the latter class are included any speaking or writing contemptuously of the court or judges acting in their judicial capacity; or by printing false accounts of causes then pending before the court; or printing articles with respect thereto which would be calculated to influence, intimidate, impede, embarrass or obstruct the courts in the due administration of justice. [188 Ark. at 1064; 69 S.W.2d at 269.]
From the perspective of this opinion the most troublesome words are, “. . . any speaking or writing contemptuously of the court or judges acting in their judicial capacity . . .” By using the word “contemptuously,” we seemed to be saying that “contempt is .contempt.” If we meant “any speaking or writing derogatory of the court or judges acting in their judicial capacity,” we surely must have meant that such conduct be held to be contempt when the speaking or writing was published in such a manner as to “influence, intimidate, impede, embarrass, or obstruct the courts.”
In Re Larry Little, 404 U.S. 553 (1972), is a per curiam opinion in which the Supreme Court eloquently stated the law of criminal contempt. The case was one in which the petitioner, charged in a North Carolina state court with a crime, appeared and moved for a continuance to a date when his retained counsel would be available. The motion was denied, and the trial was held. In his summation before the trial judge, the petitioner accused the judge in open court of bias and prejudice, and he said he was being held a “political prisoner.” He was held in contempt. Reversing the conviction the Supreme Court said:
There is no indication, and the State does not argue, that petitioner’s statements were uttered in a boisterous tone or in any wise actually disrupted the court proceeding. Therefore, “The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil. . . . [T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.” Craig v. Harney, 331 U.S. 367, 376 (1947). “Trial courts. . .must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.’’ Brown v. United States, 356 U.S. 148, 153 (1958).
The reversal of this conviction is necessarily required under our holding in Holt v. Virginia, 381 U.S. 131 (1965). There attorneys filed motions that the trial judge recuse himself and for a change of venue, alleging that the judge was biased. The motion for change of venue alleged that the judge intimidated and harassed the attorneys’ client. The court adjudged the attorneys in contempt for filing these motions. We reversed for reasons also applicable here:
“It is not charged that petitioners here disobeyed any valid court order, talked loudly, acted boisterously, or attempted to prevent the judge or any other officer of the court from carrying on his court duties. Their convictions rest on nothing whatever except allegations made in motions for change of venue and disqualification of Judge Holladay because of alleged bias on his part.” Id., at 136. [404 U.S. at 555-556]
In Holt v. Virginia, the motion which accused the judge of intimidation and harassment was not only filed, but read to the judge in open court. In addition to the language quoted above, Mr. Justice Black noted that a litigant must be allowed to file motions which present claims and raise relevant issues. “[T]he words used in the motions were plain English, in no way offensive in themselves, and wholly appropriate to charge bias ... of the presiding judge.” 381 U.S. at 131.
The only distinguishing factor which might remove the case before us now from the rule of Holt v. Virginia, supra, is that Judge Lofton was charged by the appellant with criminal misconduct. All of those charges were, however, relevant to the appellant’s contention that Judge Lofton was biased in his case.
The division of our court over this case is indicative of its difficulty and the empathy we feel with a trial judge confronted with the situation the appellant created. Members of this court must, however, sometimes subdue even their strongest feelings in the interest of deciding cases not for the moment but for the long run. The dissenting opinion shows that the appellant was, before he filed the motion at issue here, twice found to be in contempt in the tortured course of the proceedings before Judge Lofton. Those rulings and the facts surrounding them are not, however, what is on appeal now. The dissenting opinion also misconstrues this opinion as holding the motion was “legitimate.” We take no position on its “legitimacy;” we say only that it was not contemptuous.
The members of the majority for whom this opinion speaks do not take lightly or suffer gladly allegations of criminal misconduct directed at a judge. Chances are this conviction would have been affirmed had there been any disruption or open insult or degrading comment whatsoever accompanying the filing of the motion. On the other hand, we see the criminal contempt power as an awesome weapon in the court’s arsenal. Even, and perhaps especially, in cases where the allegations are made by a person the judge has concluded to be mentally unbalanced, the contempt power must not be used to immunize judges from allegations of criminal misconduct which are not presented in a manner constituting a disruption of the court’s proceedings or an open affront and imminent peril to the institution or its dignity. It must never be used to place judges above the law. The vital public respect for and faith in judicial institutions will, we believe, be enhanced by the extent to which we are able to solve our problems with patience as opposed to pique, holding our power in reserve.
Reversed and dismissed.
Hickman, Dudley, and Glaze, JJ., dissent.