dissenting. This court took this case as a regular submission because its focus involves Administrative Order No. 4, which provides that, “unless waived on the record by the parties, it shall be the duty of any circuit court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it.”
Our court promulgated the order in 1991 because of concerns that some trial courts had local rules that conflicted with the Arkansas Rules of Civil Procedure and that affected the rights of litigants. To become aware of these rules, a litigant or counsel might have had to wade through many pages of confusing material. Ark. R. Civ. P. 83 publisher’s note (abolished 1988); In re Changes to Ark. Rules of Civil Procedure, 294 Ark. App’x 664, 742 S.W.2d 551 (1987) (per curiam) (abolishing local rules effective March 14, 1988). In the instant case, as alluded to in the majority opinion, the trial court made the following ruling:
Plaintiff s request that in-chambers conferences be on the record is denied. The court has a long established administrative practice of conferring in chambers, when necessary, informally and jointly with counsel prior to court proceedings. The suggested procedure would unduly burden the court reporter, delay the proceedings, and impugn the integrity of opposing counsel and the Court. Existing procedures are sufficient to protect and develop the record should such conferences generate a need to do so.
Clearly, the trial court relied on its own long-established administrative rule or policy when it denied counsel’s request pursuant to Administrative Order No. 4, rather than following the language set out in the order. The trial court later amended its order of denial, stating it would comply with Administrative Order No. 4, but added, “certainty of compliance can be asserted because there will be no conference with counsel in chambers. Furthermore, the trial court has not had since, and will not have in the future, a conference in chambers with counsel.” The trial court’s amended order appears to be an over-broad construction of Administrative Order No. 4 and seems intended to notify counsel that any requests for an in camera or in-chambers hearing would be denied, even if both sides were willing to waive having a verbatim record. Here, the trial court had the duty under Order No. 4 to provide a record, and it was not Thompson’s burden to establish the need for a record.
In reading the record, it becomes clear that the trial court and counsel had had a similar problem arising out of another case where counsel allegedly asked the trial court for a record to be made, but counsel’s request was refused. The trial court emphatically denied such a charge. Though hard feelings between the trial court and counsel might reasonably be expected to arise in these circumstances, the trial court is still required to follow court orders, rules, and the law. On the other hand, if counsel violates the court’s orders or the canons of professional conduct, there are sanctions that can be imposed. This, too, is yet another reason why a record must be taken in any or all contested matters unless waived by all parties. Simply defined, a contested hearing is one in which at least one of the parties has objections regarding one or more matters before the court. See Black’s Law Dictionary 738 (8th ed. 2004).
In sum, under the plain language of Administrative Order No. 4, the trial court had the duty to provide a verbatim record to be made in all proceedings pertaining to any contested matter before it. Again, Administrative Order No. 4 places the duty on the circuit court to provide a record when a contested matter arises in any proceedings. I strongly disagree with the majority’s statement that Thompson did not show a clear and certain right to the relief he sought, which is a prerequisite to a writ of mandamus. In this case, the trial court refused to discharge the duty imposed by Administrative Order No. 4. Therefore, under the circumstances, I agree that mandamus does apply and should be granted.
Imber, J., joins this dissent.