dissenting. I believe the majority takes a stand which is too rigid. There is no room for any give and take. Of course it all started with Walker v. Department of Human Services, 291 Ark. 43, 722 S.W.2d 558 (1987), in which I concurred along with Justice Hickman. I stated in Walker that the legislature had the power to assign cases involving dependent-neglected children to any existing court.
I went along with the decision in Hutton v. Savage, 293 Ark. 256, 769 S.W.2d 394 (1989) because I agreed that the legislature could not give judges the authority to appoint another person a judge to help carry the load. I did not forsee that the opinion in Hutton would be construed as prohibiting judges from appointing special masters in every situation. Masters and referees may be necessary to keep up with the demand that dependent-neglected child cases require. ARCP Rule 53(b) states that “reference to a master shall be the exception and not the rule.” Cases of dependent-neglected children constitute such an exception. After all, juvenile cases are only a small part of the circuit judge’s and chancellor’s present caseload. We created Rule 53 and we can amend it if necessary to accommodate the requirements announced in Walker and Hutton.
The courts and the people need a bridge from the present until the new juvenile code becomes effective on August 1, 1989. This court has the authority and the duty pursuant to Article 7, Section 4, and Amendment 28 of the Constitution of Arkansas to provide a procedure which will suffice until the new law becomes effective.
The majority “can carve through the technicality” and reach the desired result, but at the same time refuse to allow trial courts to “carve through the technicality” and serve the legitimate purposes of the juvenile justice system. Certainly these cases should be decided by full-fledged judges, but judges cannot fully investigate all cases from start to finish. Judges acting on other cases are not required to attend to every detail concerning every case filed. No doubt present judges are willing to work a little harder — until the new law becomes effective.
I agree with the majority that judges and chancellors cannot anoint clones to perform their judicial functions. However, this court should not hand them a brick while they are attempting to swim the stream. Under the circumstances, I would exercise a little more tolerance in appointing masters and referees until the new law takes effect. Trial courts must have some discretion in matters such as this in order to accomplish what is demanded by the law. Generally speaking we leave much to the discretion of trial courts. Certainly this is just such an occasion. Common sense and justice dictate that we be strong enough to bend.