Lee v. McNeil

Steele Hays, Justice,

dissenting. The obvious and increasing need for the efficient operation of the judicial system and the wise use of judicial resources mitigate in favor of inventive measures like the one before us. Such devices should be sustained except where invalidity is clear. I respectfully suggest the majority opinion fails to demonstrate that invalidity.

To begin with, petitioner’s remedy, if he is dissatisfied with the outcome of his trial, is by appeal rather than by mandamus, and I would not undermine our precedents, and there are many, that “mandamus will not be granted when there is a remedy by appeal.” Burks v. Mobley, 245 Ark. 43, 430 S.W.2d 859 (1968); Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978).

Second, the majority rests its decision on the argument that, unlike an exchange of districts, which is authorized by Ark. Code Ann. § 16-13-403 (1987), there is no similar authorization for an exchange of divisions within a district. However, the majority has cited no supporting authority for its position that an “intradivision” exchange agreement requires legislative sanction.

Contrary to the majority’s contention, an express legislative conferrence of power is not required for the judges to execute this agreement. Rather, the agreement is authorized and enabled because it is already encompassed within the “inherent powers” of a court, which powers we have long recognized:

Besides the powers. . . specially granted by the constitution to the circuit courts, they possess certain other powers, which appertain to all judicial tribunals, and vest in them of necessity upon their creation, and by the simple act creating them. . . .

Anthony, Ex Parte, 5 Ark. 358 (1843). Similarly it is stated in State v. Morrill, 16 Ark. 384, quoting from United States v. Hudson, 7 Cranch 32 (1805).

Certain implied powers must necessarily result to our courts of justice from the nature of their institution. To find for contempt, imprison for contumacy, enforce the observance of order, etc., are powers that cannot be dispensed within a court because they are necessary to the exercise of all others; and so far our courts no doubt possess powers not immediately derived from statutes. . . .
The legislature may regulate the exercise of but cannot abridge the express or necessarily implied powers granted to this court by the Constitution. [My emphasis.]

A court’s inherent powers are universally recognized:

The phrase ‘‘inherent powers” is used to refer to powers included within the scope of a court’s jurisdiction which a court possesses irrespective of specific grant by constitution or legislation. Such powers can neither be taken away nor abridged by the legislature. . . . The inherent powers of a court do not increase its jurisdiction; they are limited to such powers as are essential to the existence of the court and necessary to the orderly and efficient exercise of its jurisdiction. . . . Courts have inherent power to do all things that are reasonably necessary for the administration of justice within the scope of their jurisdiction. [My emphasis.]

20 Am. Jur. 2d, Courts § 78, 79 (1965).

Recently, in discussing an enabling act passed by the legislature this court adverted to a court’s inherent powers:

[The enabling act] merely recognizes and is harmonious with this court’s inherent powers rather than conferring an express power.

Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977); Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986).

As to the specific power exercised by the respondents, other jurisdictions have recognized the implied authority in coordinate judges of a jurisdictional territory to exchange with coordinate courts of the same territory. See State ex re. MacNish v. Landwehr, 60 S.W.2d 4 (1933); Kruckenberg v. Powell, 442 So. 2d 994 (1982). It is stated in Kruckenberg:

The assignment and reassignment of specific court cases between or among the judges of a multi-judge court is a matter within the internal government of that court and is directed and controlled by policy adopted by the judges of that court. . . . Every duly elected or appointed judge or a court has the bare power or authority to exercise all of the jurisdiction of that court.

The only limitation on the court’s exercise of its powers is that any rule be “reasonable” and neither enlarge nor restrict the jurisdiction of a court. Any rules must of course “harmonize with and cannot render nugatory, or materially modify, statutory provision, and must not conflict with constitutional provisions.” 20 Am. Jur. 2d, Courts § 84 (1965); see also Thomas v. Arn, 474 U.S. 145 (1985). No such conflict has been noted by the majority.

The majority opinion avoids topical discussion, but the implication exists that this device for an improved judicial operation is perceived by the majority as flawed because of the distinction between courts of law and equity inherent in the common law and retained anachronistically in Arkansas., But that aspect was addressed soundly and in depth by Justice Frank G. Smith in McEachin v. Martin, 193 Ark. 787, 102 S.W. 864 (1937). In McEachin, Judge Irby, Chancellor of the 8th Chancery District, under an agreement for exchange of courts with Judge Holt, circuit judge of the Boone Circuit Court, presided over a personal injury case. I quote, necessarily at some length, from that opinion:

Act 160 of the Acts of 1933, page 490, expressly authorizes circuit judges and chancellors of the state to temporarily exchange courts and districts by agreement, for such length of time as may be practicable and for the best interest of their respective circuits and districts and courts. The act declared the intent and purpose thereof to be “*** to permit circuit judges to exchange circuits with each other; to permit chancellors to exchange districts with each other; and to permit circuit judges to exchange circuits with chancellors; and to permit chancellors to exchange districts and circuits with circuit judges.” Authority for the exchange between Judge Holt and Chancellor Irby appears ample if act 160, supra, is valid legislation. Is it such?
***
It was provided by § 22 of art. 7 of the Constitution that “The judges of the circuit courts may temporarily exchange circuits or hold courts for each other under such regulations as may be prescribed by law.” We think it obvious that the words “circuit courts” were used in a comprehensive sense, including within their meaning chancery courts as well. Throughout the judicial history of the state no one ever questioned the right of one circuit judge who had exchanged circuits with another judge to exercise the full jurisdiction possessed by the judge with whom the exchange was made. For the purpose and during the time covered by the exchange agreement each judge possessed all the powers and jurisdiction of the judge with whom he had exchanged. He was both circuit judge and chancellor, because chancery courts were comprehended and included in the words “circuit courts.” That § 22, above quoted, refers alike to courts having chancery jurisdiction as well as to circuit courts or, rather, intended both courts to be comprehended by the words “circuit courts,” in § 21 of art. 7. This section provides that “Whenever the office of judge of the circuit court of any county is vacant at the commencement of a term of such court, or the judge of said court shall fail to attend, the regular practicing attorneys in attendance of said court may, on the second day of the term, elect a judge to preside at such court.” If the words “circuit courts” did not comprehend and include chancery courts as well, then no authority existed for the election of a presiding judge possessing chancery jurisdiction.
***
Chancellors have, under the Constitution, the same right to exchange which circuit judges have, and there is no limitation of this power restricting the right of a circuit judge to exchange only with another circuit judge or a chancellor to exchange only with another chancellor. It is, therefore, the opinion of the writer, and of Justices Humphreys, McHaney and Baker, that chancellors may exchange with circuit judges as well as with other chancellors.

Furthermore, legislative intent favoring exchange is expressed more than once, with regard to statutes on the exchange of districts. See e.g. Act 1961, No. 135, Preamble. Construction of constitutions and statutes providing forjudges of one district to hold court in another district, is generally considered remedial and should be liberally construed with a view to promoting the ends of justice. 48A C.J.S. Judges, § 73 (1981).

Corbin, J., joins.