dissenting. Amalgamated Clothing and Textile Workers International Union raises three points of appeal. The first two can be summarily dismissed. The first point is that the complaint of Earle Industries, Inc. did not state a cause of action. The second is that Amalgamated was entitled to summary judgment. Both arguments are bypassed since the motion for a temporary restraining order was heard on its merits. The only real issue is whether a court of equity should have assumed jurisdiction to enjoin the commission of criminal offenses. The majority opinion holds that the chancery court properly assumed jurisdiction. I respectfully dissent.
I.
The undisputed facts are as follows. In October 1991, Reverend Jesse Jackson visited the plant of Earle Industries in support of Amalgamated’s efforts at negotiation and spoke from the back of a truck parked-in the Earle Industries’ employee parking lot. Earle Industries objected to the presence of Reverend Jackson and the Amalgamated supporters. Two Amalgamated supporters were arrested and charged with trespassing. Significantly, both trespass charges- were dismissed at the request of Earle Industries.
Almost two years later, on September 14, 1993, Amalgamated and its supporters, again including Reverend Jackson, held another rally in the City of Earle. The rally began with a speech by Reverend Jackson at Earle High School. After the speech, local law enforcement officers escorted Reverend Jackson and sixty to seventy-five Amalgamated supporters the short distance down State Highway 64 to the plant of Earle Industries. The main entrance to the plant is from Highway 64.
The management of Earle Industries, knowing that the Amalgamated supporters were coming to the plant, placed new chains on all gates and closed the main gates. The Amalgamated group reached the plant’s main gates just as the employees’ lunch break began. During the forty-five-minute lunch break the supporters remained in front of the closed main gates. They sang, chanted, and listened to another speech by Reverend Jackson. Two supporters were given police citations for obstructing traffic because their parked cars partially blocked Highway 64. Another supporter, who sat in the highway and had to be physically removed by the officers, was given a citation. A fourth Amalgamated supporter was cited by police for criminal mischief and criminal trespass after he cut the lock and chain on the plant’s back gate. All four later pleaded guilty to the criminal charges. During the rally a flyer was distributed. It was captioned, “We Will Not Stop Until We Get Justice.” The body of the flyer contained the sentence, “The only thing that Felsenthal [management] understands is brute force.”
II.
Arkansas remains one of the few states that still maintains separate courts of law and equity. Mark R. Killenbeck, Nothing That We Can Do? Or, Much Ado About Nothing? Some Thoughts on Bates v. Bates, Equity, and Domestic Abuse in. Arkansas, 43 Ark. L. Rev. 725 (1990); see Ark. Const, art 4. Under our separate court system, unless a cause of action is confided by the constitution exclusively to another court, it belongs exclusively, or concurrently, to the circuit court. State v. Devers, 34 Ark. 188, 198 (1879). The separation required by the Arkanas Constitution in cases such as the present was set out in Meyer v. Seifert, 216 Ark. 293, 225 S.W.2d 4 (1949), as follows:
That equity will not act to restrain ordinary violations of the criminal law, but will leave the task of enforcing the criminal laws to courts having criminal jurisdiction, is basic learning in our legal system. But it is equally basic that if grounds for equity jurisdiction exist in a given case, the fact that the act to be enjoined is incidentally violative of a criminal enactment will not preclude equity’s action to enjoin it.
Id. at 298, 225 S.W.2d at 7.
The sequence of conditions which are necessary before equity will enjoin a crime were set out in Webber v. Gray, 228 Ark. 289, 295, 307 S.W.2d 80, 84 (1957), as follows:
In general, these conditions are, that unless relief is granted a substantial right of the plaintiff will be impaired to a material degree; that the remedy at law is inadequate; and that injunctive relief can be applied with practical success and without imposing an impossible burden on the court or bringing its processes into disrepute.
Each of the three conditions must be met before equity will exercise jurisdiction and enjoin the commission of a criminal offense.
A.
The first condition is that the party seeking the equitable remedy will suffer the loss of a substantial right to a material degree if equity does not intervene. This substantial right must be weighed against any harm the injunction might cause. Smith v. Hamm, 207 Ark. 507, 181 S.W.2d 475 (1944).
1.
The direct losses of a substantial right suffered by Earle Industries in the past are losses occasioned by three misdemeanor trespass offenses and one criminal mischief offense. Earle Industries asked that two of the misdemeanor charges be dismissed, and they were dismissed. Consequently, it is hard to rationalize those trespasses now being of significance and, under these circumstances, cannot be said to be a loss to a “material degree.” The only other direct loss of a right was caused by the offender who cut the chain and was arrested for trespass and criminal mischief. Trespass and criminal mischief cannot be condoned, and Earle Industries did suffer the loss of a chain when the chain that locked the gate was cut. Earle Industries must have also suffered some worry about its security as a result of the criminal mischief. The offender who cut the chain pleaded guilty and was fined. There is no direct or circumstantial proof that the offender might again cut a chain locking a gate .or again commit criminal mischief. The other three losses of rights were indirect, as they concerned illegal parking and sitting in Highway 64. These three offenses would be more correctly described as adversely affecting the rights of the public.
2.
The losses suffered by Earle Industries must be weighed against any harm that might be caused by a court of equity assuming jurisdiction and granting relief. Four potential harms are always present when a case involves an injunction against criminal offenses. First, there is a potential harm in the possible conflict with the constitutional guarantee of the right to trial by jury. Equity does not afford a jury trial, and the absence of that protection is a substantial factor to be weighed against chancery assuming jurisdiction. Smith, 207 Ark. at 512, 181 S.W.2d at 478; see also Robert A. Leflar, Equitable Prevention of Public Wrongs, 14 Tex. L. Rev. 427, 429-33 (1936). Second, the proof necessary for a conviction in a criminal court is constitutionally designed to require a high standard of proof, proof beyond a reasonable doubt. The proof necessary to sustain a civil action for contempt is lesser, a preponderance of the evidence. Third, a court of equity can issue a show cause order, and the person cited must show why he should not be held m contempt. In a criminal proceeding the accused cannot be compelled to give evidence against himself. As a result, when a court of equity enjoins the commission of a crime, the person enjoined might be cited for contempt in a court of equity and stands to lose these three constitutional guarantees. Fourth, the person enjoined will suffer some stigma or embarrassment comparable to that suffered by being labeled a habitual offender because, before a court of equity assumes jurisdiction, there must be proof that the person enjoined committed acts of violence with such systematic persistence as to warrant a finding that they would be continued unless restrained. Local Union No. 858 Hotel & Restaurant Employees Int'l Alliance v. Jiannas, 211 Ark. 352, 200 S.W.2d 763 (1947).
The majority opinion intimates that a flyer entitled, “We Will Not Stop Until We Get Justice,” shows, in part, that a court of equity should assume jurisdiction. Before exercising jurisdiction in this type of case, a court of equity must always be aware that the right of free expression through speech and peaceful picketing is not to be endangered by the use of injunctions.
In summary, it is doubtful that Earle Industries would have suffered the loss of a substantial right to a material degree if equity had refused to exercise jurisdiction. It is even more doubtful when the “right” is weighed against the potential harms of equity exercising jurisdiction in this particular case.
B.
The second condition to be shown before equity exercises jurisdiction is that the remedy at law is inadequate. Except in narrow circumstances, equity will not enjoin the commission of a crime because the remedy at law is adequate, and criminal jurisdiction is in circuit court. The limited exception, articulated in Smith v. Hamm, 207 Ark. 507, 181 S.W.2d 475 (1944), arises when the criminal act is only “incidental” and there is a danger of “irreparable pecuniary injury to property or pecuniary rights of the complaining party.” Id. at 512, 181 S.W.2d at 478. In McGehee v. Mid South Gas Co., 235 Ark. 50, 55, 357 S.W.2d 282, 286 (1962), we slightly modified the Smith v. Hamm standard and said, “[T]he mere existence of a remedy at law does not deprive equity of such jurisdiction unless such remedy is ‘clear, adequate and complete.’” The exception giving equity jurisdiction thus turns on the “adequacy” of the criminal remedy. In this vein, the court of appeals wrote that “the Arkansas Criminal Code contains numerous provisions which punish this type conduct, and these matters may be laid to rest between the parties by their initiating appropriate criminal proceedings.” Maxwell v. Sutton, 2 Ark. App. 359, 363, 621 S.W.2d 239, 241 (1981). The limitations of this exception were recently affirmed in Bates v. Bates, 303 Ark. 89, 793 S.W.2d 788 (1990).
The majority opinion implies that equity can exercise jurisdiction in part because the Amalgamated supporters gathering outside the front gate prevented employees from leaving and entering the front gate. However, the criminal law provides that it is a felony to prevent employees from engaging in any lawful vocation. Ark. Code Ann. § 11-3-401 (1987). The majority opinion provides that equity can exercise jurisdiction in part because of obstruction of the highway. Yet obstructing a highway is a criminal offense. Ark. Code Ann. § 5-71-214 (Repl. 1993). The majority opinion states that Amalgamated supporters might trespass on Earle Industries’ property in the future. Yet those who might trespass on Earle Industries’ property can be charged with criminal trespass or criminal mischief. Ark. Code Ann. §§ 5-38-203 & 5-39-203 (Repl. 1993). The very fact of the four arrests, coupled with the fact that the violations stopped thereafter, shows that the remedy at law is “clear, adequate and complete.”
When an act constitutes a criminal offense, there must be repeated and systematic violations of the criminal lav/ before the remedy will be deemed “inadequate” and equity will intervene. The three cases involving labor union activities in Arkansas which are cited in the majority opinion clearly illustrate this requirement. In Smith v. F&C Engineering Co., 225 Ark 688, 285 S.W.2d 100 (1955), the first of the three cases cited in the .majority opinion, employees of F&C Engineering were repeatedly cursed and threatened with physical violence by union sympathizers. Bands of union sympathizers roamed near the place of employment and at times blocked the entrance. Employees were in real fear for their safety. On one occasion an employee had to seek a police escort to his home. Another quit his job rather than continue under the circumstances. A foreman was attacked with a blackjack. The same foreman’s pickup truck was tampered with to the extent that it would not run. Employees who crossed the picket line were told that the same thing would happen to them. A rock was hurled into an employee’s car. Oil and water were drained from a motorized machine. Each morning nails were strewn along the roads used by F&C Engineering and its employees, and they were plagued with numerous flats on company vehicles. Other threats were made over a considerable period of time. In upholding the grant of an injunction we observed:
In Local Union No. 858 Hotel and Restaurant Employees Int'l Alliance v. Jiannas, 211 Ark. 352, 200 S.W.2d 763, we held that acts of violence and coercion were committed with such systematic persistence as to warrant a finding that they would be continued unless restrained where pickets walked very close to the door and on several occasions had to be pushed aside by customers to gain entrance to the restaurant being picketed, and on one occasion a customer was knocked down with a pair of brass knucks and severely injured.
Id. at 698, 285 S.W.2d at 106.
It is noteworthy that the above-cited case of Jiannas is the second labor dispute case cited in the majority opinion. Yet it shows that the violence and coercion must have been pursued with a “systematic persistence” before the remedy at law will be deemed inadequate. In that case the union went on strike against a restaurant that had one front entrance, a five-foot-wide door. Picketers walked back and forth in front of the one entrance. While there were usually only two picketers, the union sympathizers often numbered from ten to thirty, and they milled around the building. Customers were brushed by picketers or supporters. One customer had to push his way into the restaurant; he was later knocked down with a pair of brass knuckles and severely injured. Other customers were told not to enter the business. They were told they would have trouble if they entered. Many customers were stopped. One lady testified that as she entered someone said, “Nobody but whores would go into that cafe.” On another occasion, as customers entered, someone shouted, “There go some sons of bitches now.” Both the owners and employees were frightened. The violence and threats of violence continued over a considerable period of time. While these threats of violence and actual violence continued, the restaurant’s business dropped by 90%.
The third case involving a labor dispute in Arkansas that is cited in the majority opinion also stands for the rule that a criminal statute will not be deemed inadequate until there have been repeated and continuous violations of the statute. In that case, Harrison v. Terry Dairy Products, Inc., 225 Ark. 953, 287 S.W.2d 473 (1956), the chancellor entered an order enjoining acts of intimidation and violence because the union had threatened physical harm to the company’s employees, used force to prevent the employees from entering their place of employment, used “goon squads” to follow employees and threaten and intimidate those employees until they quit work, beat and battered employees, and damaged the dairy’s plant. After the temporary injunction was entered, heavy charges of dynamite were planted in the milk bottling room and in each of the boilers of the dairy’s plant, and each was set off. An additional twenty-one sticks of dynamite were also found inside the plant and foreign substances were found in the gasoline tanks of the dairy’s trucks.
In contrast to the facts of those three cases are the facts of the case at bar. The majority opinion relies heavily on the testimony of the Earle Chief of Police, Gregory Martin. His cross-examination is abstracted, in part, as follows:
There were about fifty people sitting in the highway when we arrived, but we had to physically remove only one. Other than the one person I arrested for cutting the lock, I can’t say that any other person got on the company’s property. He is the only person we had to physically remove from the company’s property. The protestors came to the plant behind my police car, and we did not ask them to leave the area, because we were under the impression that they were going to stand right in front of the factory. We did ask them to move back off the property once they started moving towards the gate.
We escorted the crowd right up to the front gate. We did not ask them to completely leave the scene. We just tried to make sure they did not get on the company property, and we physical[ly] removed one man from the highway after asking him to move. When I first arrived at the front gate, there were no people sitting in the road. Ten to fifteen minutes later, people started sitting in the highway. At first, I was standing down by the front gate, then I saw the people in the road. I told everyone sitting in the highway they would have to move at that time. They were chanting “we shall not be moved.” After we asked them several times, everyone moved but the one person.
I didn’t hear any of the protestors make any threats of bodily harm to any other person. I didn’t see any of the protestors inflict any bodily harm on any other person. I am aware of no damage to the property, other than the lock being cut. I didn’t hear any threats of property damage being made by any of the protestors.
The two people arrested during the incident of October, 1991 were charged, but the charges were dropped because the staff at Earle Industries decided not to proceed with the charges. Of the four people arrested on September 14, 1993, one was arrested with respect to cutting the lock, one was arrested after he was removed from the highway, the other two were arrested for illegal parking when they came to claim their vehicles.
The facts of the case at bar do not rise to the same level of repeated harassing conduct as the facts of the cases cited by the majority. The remedy at law thus has not been shown to be “inadequate,” as that word is used in our cases, and, as a result, the court of equity erred in exercising jurisdiction to enjoin the commission of a criminal offense.
C.
The third condition is that injunctive relief can be applied with practical success and without imposing an impossible burden on the court or bringing its processes into disrepute. The initial part of this condition is that the relief can be applied with practical success. Here, the chancellor issued a temporary restraining order against Amalgamated that, in the language of the majority opinion, provides that “the union is simply enjoined from (1) blocking or obstructing, or attempting to obstruct, the use of adjacent highways and streets and business passageways; (2) going uninvited onto business property; and (3) cutting or damaging business property.” Thus, the temporary restraining order provides relief that is no different than that afforded by the criminal laws. The only difference is that it would be enforced with contempt powers. Thus, it does not seem that the court of equity has any more chance of success, as a practical matter, than the criminal courts.
III.
The basic issue in this case is the separation of the courts of law and equity mandated by the Constitution of Arkansas. We should follow the mandate of the Constitution. Equity should not enjoin the future commission of criminal acts in this case.
Newbern, J., joins in this dissent.