Townsend v. Arkansas State Highway Commission ( 1995 )

Tom Glaze, Justice,

dissenting.

There is something terribly unjust about the majority court’s opinion. This court affirms the trial court’s finding Ray Townsend in contempt of court and Townsend now must serve thirty days in jail as punishment. Such punishment is a direct result of this court’s error in the Arkansas Highway Commission’s first appeal. See Arkansas State Highway Comm’n v. Townsend, 313 Ark. 702, 858 S.W.2d 66 (1993) (Townsend I).

In Townsend I, this court erroneously reversed and dismissed the appeal instead of remanding the case for further proceedings. The Arkansas Highway Commission failed to ask this court to correct its mandate. Instead, the Commission filed a new petition seeking injunctive relief from the same chancellor who held she was powerless to act since our court had previously dismissed the Commission’s action. In the Commission’s second appeal, this court fell short of acknowledging its error, but conceded its “signals” had not been “crystal clear.” Arkansas State Highway Comm’n v. Townsend, 317 Ark. 581, 879 S.W.2d 447 (1994) (Townsend II). Then, in an attempt to correct its “error” or “lack of clarity,” this court concluded it would treat the Commission’s new petition “as a new case,” and it “assumed jurisdiction of the case independently of this court’s earlier mandate.” This court then remanded the Commission’s “new case” directing the chancellor to re-enter its first order in Townsend I. I disagreed with our court’s decision, opining that this court should have acknowledged the mistake in its Townsend I mandate and forthrightly corrected it. See Glaze, J., dissents, 317 Ark. at 585, 879 S.W.2d at 450.

After this court remanded Townsend II, the chancellor reinstated her first order under which she gave Townsend twenty days to remove structures located in the Commission’s right-of-way. When Townsend failed to remove them, the chancellor ultimately ordered Townsend to serve thirty days in jail, from which Townsend brought this appeal.

First, I believe Townsend’s argument is valid when asserting Townsend I, not Townsend II, is the law of this case. If that is true, all pleadings filed after this court’s initial mandate in Townsend I should have been dismissed. See Arkansas Baptist College v. Dodge, 189 Ark. 592, 74 S.W.2d 645 (1934); Watkins v. Acker, 195 Ark. 203, 111 S.W.2d 458 (1937). Second, I agree with Townsend that Townsend II is “bad law” and assuredly should be overruled.

The foregoing legal points aside, the chancellor, Townsend and the Commission have voiced puzzlement concerning the directions given by this court in Townsend I and II. I think it is unfair to send someone to jail because our court’s clear error later triggered confusion as to how the parties should proceed. At the least, Townsend’s punishment should be mitigated, considering the circumstances in this case. In this respect, I would suspend Townsend’s jail punishment. See Jones v. Jones, 287 Ark. 72, 696 S.W.2d 727 (1985); Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984); see also Folsom v. State, 216 Ark. 31, 224 S.W.2d 44 (1949). No one, including the Commission, can be harmed by such a ruling, particularly since the Commission conceded in oral argument that it could otherwise enforce its right to have the structures removed from its right-of-way.

For the reasons above, I respectfully dissent.

Corbin, J., joins this dissent.