Neal v. Wilson

Andree Layton Roaf, Justice,

dissenting. There is so much in the majority opinion with which I take issue that it is hard to know where to start, but the holding that Judge John Lineberger was “properly assigned jurisdiction of this case” without any authority or discussion of the inherent underlying conflict between his assignment and the constitutional and statutory authority of the duly elected, sitting circuit judge for the First Judicial District is as good a place as any. The propriety of Judge Lineberger’s assignment, and not the refusal of Judge Oily Neal to disqualify is the real issue presently before us, and there is no question that the assignment was made in error.

The majority seems to opine that because this court, through the office of the Chief Justice, had once made a valid assignment of Judge Hanshaw, pursuant to Ark. Code Ann. § 16-10-101(b)(1) (Repl. 1994), which grants the Supreme Court general superintending control over the administration of justice in all courts of the state, it retained control over this case regardless of the passage of time and change in circumstances. Indeed, the majority states that it merely would have considered “Judge Neal’s possible ability and willingness to serve in this matter” in making its assignment under Act 496 if respondent had so notified the court. The majority, therefore, does not deem it necessary to discuss the facts surrounding Judge Lineberger’s assignment as it relates to the statutory authority of this court to so assign him; I do, and I will.

Judge Lineberger’s assignment was apparently triggered by the letter Judge Hanshaw directed to the Administrative Office of the Courts (AOC) on April 20, 1994, in which he expressed disagreement with this court’s reversal of his decision in the initial proceedings between these parties and declined to rehear the case. He asked the AOC to “Please re-assign this case to someone else.” Judge Hanshaw’s assignment was then terminated by order of this court on April 25, 1994, and Judge Lineberger was assigned to the case by order of this court dated May 3, 1994. The majority construes the initial appointment of Judge Hanshaw on February 18, 1992 and his letter of more than two years later, as some kind of a “record” upon which this court could properly rely in making the reassignment of Judge Lineberger. Indeed, the holding of the majority finds no obligation or responsibility on this court or the AOC other than to react to the “request” of Judge Hanshaw, who has no connection to Phillips County or to the First Judicial District other than his earlier assignment to this case.

We must examine the underlying bases for the authority of both Judge Neal and Judge Lineberger to determine if one will have supremacy over the other. Of course, Judge Neal’s authority to hear this case derives from his status as the circuit judge elected by the people of his district. Arkansas Const, art. 7, § 13 provides:

The State shall be divided into convenient circuits, each circuit to be made up of contiguous counties, for each of which circuits a judge shall be elected, who, during his continuance in office, shall reside in and be a conservator of the peace within the circuit for which he shall have been elected.

Further, Ark. Code Ann. § 16-13-903 (Repl. 1994) provides that voters of the first judicial district (which includes Phillips County Circuit Court) must elect the judges who preside over all cases arising within the district. Finally, Ark. Code Ann. § 16-13-210 (Repl. 1994) provides in part:

Any circuit judge of this state, at any time while mentally and physically competent and physically present in the geographical area of the judicial district which he serves as judge, may hear, adjudicate, or render any appropriate order with respect to, any cause or matter pending in any circuit court over which he presides. . .

As to Judge Lineberger’s authority, this court has concluded that Ark. Const, art. 7, § 21, providing for the election of special judges, and Ark. Const, art. 7, § 22, permitting circuit judges to temporarily hold court for each, other, are the modes expressly set out in the constitution and are exclusive of all other methods of temporarily replacing a circuit judge. Wessell Bros. Drill v. Crossett Sch. Dist., No. 52, 287 Ark. 415, 701 S.W.2d 99 (1985); Burris, Adm’r v. Britt, Judge, 281 Ark. 225, 663 S.W.2d 715 (1984). Because Judge Lineberger was not elected by the practicing attorneys of Phillips County pursuant to Ark. Const, art. 7, § 21, the only provision under which Judge Lineberger could hold authority to hear the case is Ark. Const, art. 7, § 22. Article 7, § 22, Exchange of circuits, provides:

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.

(Emphasis supplied.) In accordance, Ark. Code Ann. § 16-10-101 provides in part:

(b)(1) Under rules prescribed by the Supreme Court, the Chief Justice may require reports from all courts of the state and may issue such orders and regulations as may be necessary for the efficient operation of those courts to ensure the prompt and proper administration of justice and may assign, reassign, and modify assignments of judges of the circuit court, the chancery court, and the probate court to hold, upon a temporary basis, regular or special sessions for the transaction of civil or criminal business within any other such court.

(Emphasis supplied.) This court has recognized that if a trial court has problems with congested dockets or conflicts in scheduling, and the prompt and proper administration of justice warrant it, the temporary assignment of judges may be had pursuant to Ark. Code Ann. § 16-10-101 (Repl. 1994). (Emphasis supplied.) Arkansas Dep’t of Human Services v. Templeton, 298 Ark. 390, 769 S.W.2d 404 (1989); See State v. George, 250 Ark. 968, 470 S.W.2d 93 (1971). Further, where the regular judges of the circuit recuse from hearing the case, the court may temporarily assign a judge from another circuit. See Burris, supra.

Initially, it may appear that both Judge Neal and Judge Lineberger have authority to hear the matter. In Rowlins v. State, 319 Ark. 323, 891 S.W.2d 56 (1995), this court concluded that Ark. Const, art. 7, § 22 clearly provides that circuit judges may temporarily exchange circuits. The court stated that Ark. Code Ann. § 16-13-403 (Repl. 1994) (statutory procedure for exchange) merely implemented that constitutional mandate and did not conflict with Ark. Code Ann. § 16-13-1203 (Repl. 1994) which provided the voters of the district must elect the judges who preside over all cases arising within the district. Similarly, § 16-10-101 (authorizing assignment by Chief Justice) merely implements the mandate of art. 7, § 22 and does not, per se, conflict with Ark. Code Ann. §§ 16-13-210 or 16-13-903.

The majority concludes that because Judge Lineberger’s assignment was valid and gave him jurisdiction, Judge Neal’s “attempt to assume jurisdiction” was clearly erroneous and void. Judge Neal, however, was a duly elected circuit judge for Phillips County, and he had not disqualified from serving on the case. Therefore, there was no basis for assigning another judge to hear a matter which he was capable of presiding over, and, in fact, elected to preside over. In essence, it could be concluded that Judge Neal had already exercised jurisdiction over the matter.

In the instant case, the critical question is whether a judge may be assigned under § 16-10-101 even though there is a regular circuit judge who has not recused and is capable of hearing the matter. This court clearly has the authority to assign judges under § 16-10-101, and the provision does not appear to place limitations upon that power. However, we have limited that authority by stating that if a trial court has problems with congested dockets or conflicts in scheduling, and the prompt and proper administration of justice warrant it, the temporary assignment of judges may be had pursuant to § 16-10-101. Arkansas Dep’t of Human Services v. Templeton, 298 Ark. 390, 769 S.W.2d 404 (1989). Thus, it would appear that the trial court must have problems with congested dockets or conflicts in scheduling before the court may simply assign a judge.

Surely we are not granted unlimited authority to assign a circuit judge. In the instant case, the assignment was probably inadvertent, but the impact is the same. If the assignment of Judge Lineberger is deemed valid, then the court would, in essence, be granted the authority to assign and reassign circuit judges without even a request from the regular sitting judges. This court has stated that the prompt and proper administration of justice must warrant the assignment. Because Judge Neal was capable of hearing the matter, the assignment of Judge Lineberger was not warranted.

Because this court did not have the authority to assign Judge Lineberger, he does not have jurisdiction to hear the matter, or any matter in Phillips County. See Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993). The general rule is that a judgment entered without jurisdiction of the person or the subject matter or in excess of the court’s power is void. West v. Belin, 314 Ark. 40, 858 S.W.2d 97 (1993). Further, in Abercrombie v. Green, 235 Ark. 776, 362 S.W.2d 12 (1962), this court recognized that the constitution and statutes require that a special circuit judge or chancellor be elected by the attorneys in attendance in the court and that the proceedings be entered upon the record. This court stated that where the parties attempt to select a special judge by agreement the proceedings are void. Id. Thus, any proceedings by Judge Lineberger would be void.

I conclude, without reservation, that this court and the AOC should, in every instance, be charged with the responsibility for knowing the status of the duly elected, sitting judges in a district before making any assignment pursuant to § 16-10-101, and it matters not whether the assignment of Judge Lineberger in this case was made inadvertently, by oversight, or with knowledge of the status of Judge Neal; it was made in error and the result is the same — the assignment is void.

Additionally, there is not one document among the voluminous documentation included with the petition, nor is there even an allegation, indicating that the respondent or Judge Oily Neal were ever aware of the assignment of Judge Lineberger, until the order appointing him was filed with the Circuit Clerk of Phillips County on September 14, 1994. The majority goes so far as to even state that the respondent should have been aware of this assignment pursuant to the “duty of a litigant to keep himself informed of the progress of his case.” The majority is in essence characterizing the assignment of a circuit judge as somehow part and parcel of the underlying adversarial proceeding; I take issue with this characterization. Further, the issues of Judge Neal’s alleged conflict of interest and his refusal to disqualify are not presently before us and are irrelevant; the injection of these issues into the jurisdictional question presented by petitioner serves only to cloud the real issue before us, that of the validity of the assignment of Judge Lineberger in the first place.

Finally, the proper remedy to resolve this conflict is a direct appeal. The settled rule is that when there is a remedy by appeal, a writ of certiorari will not be granted unless there was a want of jurisdiction, or an excess in its jurisdiction, by the court below. Arkansas Dep’t of Human Servs. v. Templeton, 298 Ark. 390, 769 S.W.2d 404 (1989). The want of jurisdiction or act in excess of jurisdiction must be apparent on the face of the record. Id. In the instant case, Judge Neal is a regular circuit judge for Phillips County and he heard a matter pending in Phillips County Circuit Court. Thus, it is not apparent on the face of the record that there was a want of jurisdiction or an act in excess of jurisdiction. In Wessell, supra, this court addressed on direct appeal the question of which judge had the authority to act — an assigned judge or a judge elected by attorneys pursuant to art. 7, § 21.

Today’s holding stands for the proposition that this court, through the office of the Chief Justice, can make an assignment of a judge foreign to a district upon the most casual and offhanded of requests, or even in the absence of any request at all, without regard to the status of the duly elected judges serving in the county and district, and such assignment will be a valid exercise of the statutory authority under § 16-10-101, so long as the sitting judge has not actually commenced proceedings on the case. Certainly this court does not contemplate wielding its considerable power in this fashion in the future, and just as certainly it should not do so in this instance. The citizens of the First Judicial District have elected Judge Neal as the circuit judge to hear cases brought forward in Phillips County. To deny his constitutional authority over any proceeding in this unprecedented manner is to impermissibly deprive these citizens of their voice in the election of the judicial officer for their district.

I respectfully dissent.