Smith v. Wright

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SUPREME COURT OF ARKANSAS
No. CV-15-227
NATHANIEL SMITH, M.D., ET AL., Opinion Delivered May 7, 2015
APPELLANTS
V. RESPONSES TO SMITH V. WRIGHT,
2015 Ark. 38 (per curiam)
M. KENDALL WRIGHT AND JULIA E.
WRIGHT, INDIVIDUALLY AND ON QUESTION ANSWERED; MOTION
BEHALF OF THEIR MINOR TO WITHDRAW RESPONSE
CHILDREN, G.D.W. AND P.L.W., ET MOOT; AMENDED MOTION TO
AL. WITHDRAW RESPONSE
APPELLEES GRANTED; MOTION TO DISMISS
DENIED.
KAREN R. BAKER, Associate Justice
The Arkansas Constitution provides that “[t]he Supreme Court shall be composed of
seven Justices.” However, in Smith v. Wright, Case No. CV-14-427, in violation of our
constitution, there are eight justices poised to decide that appeal. Consequently, the question
presented in this case is: In accordance with the Arkansas Constitution and our law, which
justices properly constitute the Arkansas Supreme Court to decide the case of Smith v. Wright,
Case No. CV-14-427? Specifically, the question is whether Justice Rhonda K. Wood or
Special Justice Robert W. McCorkindale is one of the seven justices required by the Arkansas
Constitution, amendment 80, to constitute the Arkansas Supreme Court in Case No.
CV-14-427? The question before us is neither trifling nor insignificant. Instead, it is a
question of major constitutional significance; therefore, it became necessary to take the issue
as a case so that it may be properly decided. After a careful examination of our constitution,
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our statutes, and our case law, we conclude that the answer to this question is clearly and
unambiguously that Justice Rhonda K. Wood, having been duly elected by the people of this
state and having begun her eight-year term as a justice on the Arkansas Supreme Court on
January 1, 2015, is the qualified justice invested with the judicial power to participate in Case
No. CV-14-427 and that Special Justice Robert W. McCorkindale’s constitutional authority
to participate in Case No. CV-14-427 expired December 31, 2014.
Factual and Procedural Background
The history of the matter before us begins with the companion case of Smith v. Wright,
Case No. CV-14-427, wherein the appellant, Smith (hereinafter “the State”) appealed the
Pulaski County Circuit Court’s order in favor of the appellee, Wright, declaring amendment
83 of the Arkansas Constitution and related statutes unconstitutional.1 Several county clerks
are also appellants in this case. Here, appellants, White, Lonoke, Conway, Saline, Faulkner,
and Washington County Clerks (hereinafter “White County”), filed responses regarding the
instant case, which will be considered accordingly. The merits of Smith v. Wright, Case No.
CV-14-427 are not at issue in the matter before us in this opinion.2
On May 15, 2014, an appeal was lodged in Smith v. Wright, Case No. CV-14-427.
1
Although a portion of the “Factual and Procedural Background” predates the
appointments of Special Justices Dickey and Womack to serve on this case and is outside
their personal knowledge, they agree that this section of the opinion is necessary to establish
the court’s jurisdiction in this matter.
2
In an effort to be abundantly clear to the reader, this opinion has no bearing on the
merits of Case No. CV-14-427, and this court will not render any opinion on that case in
this opinion.
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On September 10, 2014, Justice Cliff Hoofman recused from the matter. On October 2,
2014, then Governor Mike Beebe appointed Robert W. McCorkindale to serve as special
justice in place of Justice Hoofman. On October 13, 2014, we granted Wright’s request for
oral argument. On October 23, 2014, a majority of this court, with Special Justice
McCorkindale joining the majority, granted Wright’s motion to expedite the appeal, with
Justice Hart dissenting and Justice Hoofman not participating. On October 23, 2014, oral
argument was scheduled by the Supreme Court Clerk at the direction of Chief Justice Jim
Hannah, to be held on November 20, 2014. Thereafter, the parties timely filed their briefs.
Additionally, eight amicus briefs were filed. Further, prior to the November 20, 2014 oral
argument, pursuant to Rule 5-1(j) of the Arkansas Supreme Court Rules, the parties filed
multiple notices of additional authority that they intended to rely on during oral argument for
a combined total of approximately fifteen additional cases.
On November 20, 2014, the court held oral argument. In accordance with the
supreme court’s previously adopted and published calendar, the 2014 term concluded on
December 18, 2014 without an opinion in Smith v. Wright, Case No. CV-14-427 having been
issued. On December 31, 2014, Justice Donald Corbin and Justice Cliff Hoofman completed
their terms on the Arkansas Supreme Court. Prior to the end of their terms, Chief Justice
Hannah, approved a statement for release to the press by Stephanie Harris, Supreme Court
Communications Counsel, that it was this court’s custom and practice that a special justice
who is appointed to replace a justice who had recused and whose term had ended, would
continue to participate in the case. We note that although this statement was released to the
press, after a diligent and exhaustive search of this court’s case law and docket, we have been
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unable to find a single case in which a special justice continued to serve on a case when an
opinion had not been delivered by the end of the term of the disqualified justice who had
been replaced by a newly elected, qualified justice.3 Accordingly, this court does not have a
settled custom or practice to apply in this situation.
On January 1, 2015, Justices Rhonda K. Wood and Robin F. Wynne, having been
duly elected to the Arkansas Supreme Court, began their eight-year terms on the court.
Justice Wood replaced Justice Hoofman, and Justice Wynne replaced Justice Corbin. The
2015 Supreme Court first convened on January 6, 2015, for the investiture of Justice Wood,
Justice Wynne, and Justice Karen R. Baker, whose previous term had expired but who had
been elected to a subsequent eight-year term. The first conference of the newly constituted
court was held on January 7, 2015. At that time, there were a total of four cases, which had
been previously submitted to the court in 2014 but were removed from submission when the
3
In Unborn Child Amendment Comm. v. Ward, a special justice remained on the case
after a two-and-one-half year delay that resulted when this court, after oral argument, stayed
the appeal pending resolution on appeal of a federal court’s order ruling that the
constitutional amendment under consideration in Ward was unconstitutional. See Unborn
Child Amendment Comm. v. Ward, 328 Ark. 454, 942 S.W.2d 591 (1997); Unborn Child
Amendment Comm. v. Ward, 318 Ark. 165, 883 S.W.2d 817 (1994). In that case, the justice
who had recused was still on the court when the case was submitted following the stay. Also,
in Lake View School District No. 25 of Phillips County v. Huckabee, Case No. 01-836, a special
justice continued to serve after the justice who had disqualified was re-elected to a subsequent
eight-year term; but in that case the elected justice remained disqualified from serving. Such
is not the case here in Case No. CV-14-427. Finally, we note that in isolated incidents,
special justices have participated in the consideration of a petition for rehearing, after the
disqualified justice was replaced by a newly elected justice. However, in those limited cases,
after an opinion was delivered, the elected official assented to the special justice’s continuing
service through the petition for rehearing, and no constitutional challenge was presented.
See, e.g., Kimbrell v. McCleskey, Case No. 11-1289. However, despite the timing of the
appeal or the elected justice’s agreement to the special justice’s continued service, based on
our decision here, that practice shall no longer continue because it violates our constitution.
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term ended without a mandate having been issued in those cases. In two of those cases, a
special justice had been appointed due to the disqualification of Justice Hoofman.
At the January 7, 2015 conference, Justice Wood expressed her belief that it was her
constitutional duty to participate in any matter before the court, unless she had a reason to
recuse. Arkansas Code of Judicial Conduct, Rule 2.7, “Responsibility to Decide,” provides:
“A judge shall hear and decide matters assigned to the judge, except when disqualification is
required by Rule 2.11 or other law.” The comment to the rule provides:
Judges must be available to decide the matters that come before the court. Although
there are times when disqualification is necessary to protect the rights of litigants and
preserve public confidence in the independence, integrity, and impartiality of the
judiciary, judges must be available to decide matters that come before the courts.
Unwarranted disqualification may bring public disfavor to the court and to the judge
personally. The dignity of the court, the judge’s respect for fulfillment of judicial
duties, and a proper concern for the burdens that may be imposed upon the judge’s
colleagues require that a judge not use disqualification to avoid cases that present
difficult, controversial, or unpopular issues.
See also Rule 2.11, “Disqualification.”
Justice Wood did not recuse from either of the cases in which a special justice had been
previously appointed due to Justice Hoofman’s recusal. See infra n.8. Special Justice
McCorkindale participated by phone and maintained that his appointment as a special justice
in Case No. CV-14-427 continued. Id. After researching the issue, the court unanimously
resolved to notify the parties in Case No. CV-14-427 by letter from Chief Justice Hannah on
behalf of the court that Justice Wood and Special Justice McCorkindale both asserted that
they should participate in the case when it is submitted to the court. Id. Despite this initial
unanimous agreement, no letter was sent, and the matter languished until January 23, 2015.
Id.
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On January 23, 2015, the State filed a motion for a second oral argument. In the
motion, the State requested that the court schedule a second oral argument and asserted that
three justices had not been able to attend the first oral argument on November 20, 2014.4
The State further contended that “Former Justice Cliff Hoofman recused from this case and
was replaced by Special Justice Robert W. McCorkindale. . . . Justice Hoofman’s term has
ended, and . . . Justice Rhonda K. Wood replaced Justice Hoofman on the Court. Justice
Wood was not present at the oral argument on November 20, 2014.” On January 27, 2015,
Wright filed her response to the motion for a second oral argument and urged this court to
deny the motion as unnecessary. Wright asserted that “Special Justice McCorkindale was
specifically appointed by the Governor as a Special Justice to hear ‘this specific case.’ . . .
Special Justice McCorkindale was present and participated in the oral argument held on
November 20, 2014. Special Justice McCorkindale was appointed specifically to preside over
this case.”
On February 5, 2015, because the parties had taken competing positions regarding the
justices who would serve on Case No. CV-14-427, citing to Hill v. State, 362 Ark. 659, 210
S.W.3d 123 (2005), a per curiam was issued ordering the parties to provide any authority to
support their respective positions regarding the justices who should preside over the appeal.
Smith, 2015 Ark. 38. Additionally, we note that Smith, 2015 Ark. 38, was issued unanimously
4
Chief Justice Hannah did not attend the oral argument because he was attending an
out-of-state court conference, but counsel was informed that he would participate and would
have access to the oral-argument video. Justices Wynne and Wood were not on the court
at that time.
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by this court, including Chief Justice Hannah and Justice Paul Danielson, who have both now
recused from this matter.5 On March 18, 2015, after the parties had filed timely responses to
the per curiam, with neither Justice Wood nor Special Justice McCorkindale participating,
the court unanimously decided to take up the matter as a separate case. Despite this
unanimous decision, no per curiam order was issued by the clerk at that time.6 See infra n.8.
Thereafter, on April 2, 2015, the court decided to take the responses to Smith, 2015 Ark. 38
as a separate case with only Justice Danielson dissenting and neither Special Justice
McCorkindale nor Justice Wood participating. Id. The order stated in pertinent part:
THE ARKANSAS SUPREME COURT ISSUED THE FOLLOWING ORDER
TODAY IN THE ABOVE STYLED CASE:
RESPONSES TO THE COURT’S PER CURIAM ORDER OF FEBRUARY 5,
2015, ARE TAKEN AS A NEW CASE. SIMULTANEOUS BRIEFING DUE IN
TEN DAYS. DANIELSON, J., DISSENTS. NEW CASE NO. IS CV-15-227.
One week later, on April 8, 2015, Chief Justice Hannah and Justice Danielson
5
We note that Justice Danielson stated in his recusal letter:
I believe that a majority of this court has manufactured a case where no case or
controversy exists. There has been no motion by any party challenging the
qualification of Justice Robert McCorkindale to continue to decide the appeal in
Smith v. Wright, No. CV-14-427.
However, the record clearly demonstrates that the parties took competing positions
on which justices were to serve on this case and the court, including Justice Danielson,
unanimously ordered formal responses to the issue presented.
6
We note that a record of the court’s decision on March 18, 2015, is contained in the
case record pursuant to Administrative Order No. 19 and maintained by the office of the
Supreme Court Clerk.
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simultaneously recused from this case.7 Chief Justice Hannah’s recusal letter stated in its
entirety:
After careful consideration and with much regret, I must recuse from Smith v.
Wright, No. CV-15-227. I believe that a majority of this court has created out of
whole cloth an issue to delay the disposition in Smith v. Wright, No. CV-14-427.
Following Justice Cliff Hoofman’s disqualification in Smith v. Wright, No. CV-
14-427, Governor Mike Beebe appointed the Honorable Robert W. McCorkindale
“as Special Associate Justice of the Arkansas Supreme Court to participate in this
specific case.” The governor’s appointment power conferred by the Arkansas
Constitution is a matter protected from judicial interference by the
separation-of-powers doctrine. This court cannot by judicial fiat usurp the power of
the executive branch.
When I took the oath of the office, I swore to uphold the Constitutions of the
United States and the State of Arkansas. Further, I am obligated to follow the
Arkansas Code of Judicial Conduct. Canon 1 mandates that a judge shall uphold and
promote the independence, integrity, and impartiality of the judiciary. The oath of
office and my duties pursuant to the Code of Judicial Conduct require that I recuse in
Smith v. Wright, No. CV-15-227. To be clear, I do not recuse from the appeal in Smith
v. Wright, No. CV -14-427.8
7
The docket reflects that recusal letters were filed at 3:03 p.m. and 3:04 p.m.
8
The procedural background provided in this case is in part a response to Chief Justice
Hannah’s and Justice Danielson’s April 8, 2015 recusal letters accusing the majority of this
court of delaying disposition in Case No. CV-14-427. Pursuant to Rule 2.10 (E) of the
Code of Judicial Conduct, a judge is permitted to respond to allegations regarding his or her
conduct in a matter. Rule 2.10 of the Code of Judicial Conduct, “Judicial Statements on
Pending and Impending Cases,” provides in pertinent part:
(A) A judge shall not make any public statement that might reasonably be expected
to affect the outcome or impair the fairness of a matter pending or impending in any
court, or make any nonpublic statement that might substantially interfere with a fair
trial or hearing.
....
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Although Chief Justice Hannah recused and asserted that “a majority of this court has
created out of whole cloth an issue to delay the disposition in Smith v. Wright, No.
CV-14-427,” the docket unambiguously reflects that Chief Justice Hannah joined in the
decision to take the matter as a case on April 2, 2015, and then recused one week after joining
that decision. Moreover, it is patently clear that the appeal in Case No. CV-14-427 cannot
move forward without first deciding which justices will hear the appeal, and no other action
is possible until the issue is settled. Therefore, the purpose of the present action is to resolve
this issue so that the underlying case can be determined and not for the purpose of delay. See
supra n.8.
On April 8, 2015, Wright filed a motion to withdraw her response to our February
5, 2015 per curiam, and on April 13, 2015, she filed an amended motion to withdraw her
response to our per curiam. In the amended motion, she requested that this court find the
issue moot and dismiss this case.9 On April 13, 2015, the State and White County timely
filed their respective briefs, and the issue is now properly before this court.
Law and Analysis
(E) Subject to the requirements of paragraph (A), a judge may respond directly or through a
third party to allegations in the media or elsewhere concerning the judge’s conduct in a matter.
(Emphasis added.) See Recusals Letters from Chief Justice Hannah and Justice Danielson, supra,
at 7 n.5 & 8.
9
However, despite Wright’s position, any action by a special justice once his or her
power has terminated would be void. See Hyllis v. State, 45 Ark. 478 (1885) (“[C]onsent,
either expressly or tacitly given, cannot impart judicial power.”).
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We now consider the merits of this case. The narrow issue presented is to determine
which justices will serve on Smith v. Wright, Case No. CV-14-427.
First, we turn to Amendment 80 to the Arkansas Constitution, which governs the
judicial branch and provides in pertinent part:
§ 1. Judicial Power
The judicial power is vested in the Judicial Department of state government,
consisting of a Supreme Court and other courts established by this Constitution.
§ 2. Supreme Court
(A) The Supreme Court shall be composed of seven Justices, one of whom shall serve
as Chief Justice. The Justices of the Supreme Court shall be selected from the State
at large.
....
§ 12. Temporary Disqualification of Justices or Judges
No Justice or Judge shall preside or participate in any case in which he or she might
be interested in the outcome, in which any party is related to him or her by
consanguinity or affinity within such degree as prescribed by law, or in which he or
she may have been counsel or have presided in any inferior court.
§ 13. Assignment of Special and Retired Judges
(A) If a Supreme Court Justice is disqualified or temporarily unable to serve, the Chief
Justice shall certify the fact to the Governor, who within thirty (30) days thereafter
shall commission a Special Justice, unless the time is extended by the Chief Justice
upon a showing by the Governor that, in spite of the exercise of diligence, additional
time is needed.
....
§ 16. Qualifications and Terms of Justices and Judges
(A) Justices of the Supreme Court and Judges of the Court of Appeals shall have been
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licensed attorneys of this state for at least eight years immediately preceding the date
of assuming office. They shall serve eight-year terms.
(Emphasis added.)
Also relevant to this case is Ark. Code Ann. § 21-1-102(a)(1) (Repl. 2004) “Terms;
certain officers” which provides,“The terms of office of the Justices of the Supreme Court
. . . shall begin on January 1 following their election.”10
With these constitutional and statutory provisions in mind, we turn to the issue before
us and recount the parties’ positions. Relying on amendment 80, §§ 1, 2, 13, 16, and 19, the
State asserts that the case should be decided by the seven justices who are currently serving
terms on the court, because only the justices currently serving terms on the court possess the
constitutional authority to decide cases in 2015. The State contends that pursuant to
amendment 80, the appointment of a special justice is “temporary” and the special justice
serves for only so long as that sitting justice is disqualified. Here, the State asserts that the
disqualification, Justice Hoofman’s recusal, ended when Justice Hoofman was replaced by a
newly elected justice. In sum, the State contends that pursuant to amendment 80, there is
no longer a disqualification, and that it is Justice Wood, not Special Justice McCorkindale,
who should participate in the court’s disposition of Smith v. Wright, Case No. CV-14-427.
The State further contends that it has not identified a rule or statute that governs this
10
We also note that pursuant to Ark. Code Ann. § 16-11-101 (Repl. 2010) “The
Supreme Court of Arkansas shall begin its annual term on the second Monday of September
in each year and may recess and adjourn from time to time as the court orders.”
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matter. Although Rule 1-7 of the Arkansas Supreme Court Rules calls for this court to
render decisions in accordance with “existing practice,” the State is unaware of any existing
practice regarding the issue presented. Finally, citing to Cates v. Wunderlich, 210 Ark. 724,
197 S.W.2d 482 (1946), the State contends that the date of the opinion controls, and the
justices who participate in the opinion must be sitting justices of the court on the date the
opinion is rendered.
White County likewise contends that amendment 80 controls and asserts that §§ 13
and 16 answer the issue presented. White County contends that, pursuant to amendment
80, § 13, the constitution’s preference is for cases to be decided by the elected justice and
allows for assignment of a special justice for the recusing justice but that the appointment
does not continue when there is a sitting justice who has not been disqualified. Stated
differently, White County contends that Special Justice McCorkindale’s appointment expired
when Justice Hoofman’s term ended, and that Justice Wood, as the sitting elected justice,
should serve on the case. Further, White County contends that amendment 80, § 16 is a
“mandatory constitutional provision that effectuates the will of the People of Arkansas by
allowing Justices they elect to serve definite terms,” and must be followed.
Finally, in her amended motion to withdraw her response, Wright does “not wish to
take a position upon which Justices should decide this case. . . . [Wright] specifically waives
any objection to whatever determination this Court might make itself as to the appropriate
justices to decide the matter.”
Turning to our review of the law, when interpreting a statute, “we construe it just as
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it reads, giving the words their ordinary and usually accepted meaning in common language.
We construe the statute so that no word is left void, superfluous, or insignificant, and we give
meaning and effect to every word in the statute, if possible.” DaimlerChrysler Corp. v. Smelser,
375 Ark. 216, 222, 289 S.W.3d 466, 472 (2008). When interpreting the constitution, “our
task is to read the laws as they are written, and interpret them in accordance with established
principles of constitutional construction. . . . Language of a constitutional provision that is
plain and unambiguous must be given its obvious and common meaning.” Smith v. Sidney
Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 720, 120 S.W.3d 525, 537 (2003) (internal
citations omitted). Additionally, we have interpreted the word “shall,” to mean mandatory
and require mandatory compliance. See, e.g., Campbell v. State, 311 Ark. 641, 846 S.W.2d
639 (1993); Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986).
With these standards in mind, we review the applicable laws. First, Ark. Code Ann.
§ 21-1-102(a)(1) provides in plain and unambiguous language that the terms of office of the
Justices of the Supreme Court shall begin on January 1 following their election. Accordingly,
here, January 1, 2015. Second, the plain language of amendment 80, § 16, provides that
Justices of the Supreme Court shall serve eight-year terms. Here, January 1, 2015 –
December 31, 2022. Third, amendment 80, § 13(A), in plain and unambiguous language
provides that if a Supreme Court Justice is disqualified or temporarily unable to serve the
Chief Justice shall certify the fact to the Governor for commission of a Special Justice.
However, because Justice Wood is not disqualified or temporarily unable to serve, this
provision is inapplicable to the facts before us.
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Here, based on the plain and unambiguous language of the statute at issue and the
constitutional provisions, the mandatory terms of Ark. Code Ann. § 21-1-102(a)(1) and the
constitution unequivocally dictate that the justices currently sitting on the court shall serve
on Wright v. Smith, Case No. CV-14-427. Although Wright withdrew her response, she had
previously taken the position that Special Justice McCorkindale should remain on the case.
However, such a position would stand in violation of the Arkansas Constitution. Our
constitution provides for the elected justices of this court to determine pending appeals.
Special justices are temporary and their appointments cannot be used to thwart the clear
language and intent of our constitution.
Further, in support of our interpretation is this court’s holding in Caldwell’s Adm’r v.
Bell & Graham, 6 Ark. 227 (1845). In Caldwell, the issue presented was the same as in the
current case: whether a special judge, commissioned by the governor, retains constitutional
authority when the reason for the appointment expires. In Caldwell, we held that the special
judge’s commission expired and explained,
The . . . 6th article of the Constitution provides for the appointment of special judges
for the trial of such causes as the regular judges are disqualified from trying by reason
of any of the disabilities therein enumerated. That provision is designed to prevent a
failure or delay of justice for want of officers, competent and qualified, to sit for the
trial and determination of such causes, without partiality or prejudice.
Caldwell, 6 Ark. at 233.
This court in Caldwell then questioned, given the purpose of the provision in the
constitution, whether such appointments should continue until the final determination of the
causes, even if the need for a special judge had ceased. The court specifically posed and
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answered the same question presented in this case:
Was it intended that a special judge should finally dispose of the causes which he
might be appointed to try, although the regular judge who was incompetent to sit in
the cases should go out of office, and a successor be appointed, and who should in
every respect be qualified to try the causes which the special judge might be
appointed to try? The obvious reasons for making the provision for such special
appointment induce us to answer in the negative.
Id. at 234.
The Caldwell court went on to explain its reasoning as follows:
[T]he provision for the appointment of special judges, only in cases where the regular
judges should be disqualified for trial thereof under the Constitution, clearly prove
that all matters in controversy were intended to be determined by the regular judges
when no disability or disqualification rested upon them; and that, therefore, the
conclusion legitimately follows, that where the disability upon the part of the regular judge
should be removed by a change of the incumbent upon the bench, or otherwise, the reasons for
the special appointment having ceased, it was intended that the appointment itself should cease.
The special judge is only appointed to perform duties which the regular judge is the
proper officer to perform, but who, for good and sufficient reasons, is deemed by the
Constitution an improper person to perform them. We are, therefore, clearly of opinion,
that the commission of the special judge expires with the reasons which caused it to be issued,
whether by the resignation, expiration of the term of service of the judge in whose place he was
appointed to act, or otherwise. The commission of the special judge is but the incident to that of
the regular officer and must follow and expire with its principal[.]
....
It never was intended that there should be two judges, in every respect competent
and qualified, under the constitution, to preside in the same court, for the trial and
determination of the same cause at the same time.
Id. at 234–35 (emphasis added).
Caldwell supports our interpretation of amendment 80.11 Further, decisions
11
Our opinion in Caldwell is consistent with case law from other jurisdictions. See also
Coles v. Thompson, 27 S.W. 46 (Tx. Ct. App. 1894) (holding that the powers of the special
judge terminate when the disqualified judge had been regularly succeeded in office by
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interpreting a provision of an earlier constitution must be deemed to have been adopted
when the same provision is incorporated into a later constitution. Mo. Pac. Transp. Co. v.
George, 198 Ark. 1110, 133 S.W.2d 37 (1939). Amendment 80 and the language of the 1836
Constitution are in substance the same; therefore, Caldwell is directly on point.12
another judge because the occasion for the special judge’s existence had ceased); see also State
ex rel. Johnson v. Judges of Circuit Court of Appeals for Fourth Circuit, 21 So. 520 (La.
1897)(holding that under a provision of the Constitution, a member of the bar had been
selected to sit in a cause in which the judges of the Court of Appeals were disqualified
cannot act after one of the disqualified judges has retired, and his successor has entered on
the duties of the office.)
12
The 1836 Constitution provided:
No judge shall preside on the trial of any cause in the event of which he may be
interested, or where either of the parties shall be connected with him by affinity or
consanguinity within such degrees as may be prescribed by law, or in which he may
have been of counsel or have presided in an inferior court, except by consent of all
the parties. In case all or any of the judges of the Supreme Court shall be thus
disqualified from presiding on any cause or causes, the court or judges thereof shall
certify the same to the Governor of the State, and he shall immediately commission
specially the requisite number of men of law knowledge for the trial and
determination thereof. The same course shall be pursued in the Circuit and other
inferior courts as prescribed in this section for cases in the Supreme Court. Ark.
Const. of 1836, art. VI, § 12.
Amendment 80, §§ 12-13 provides:
No Justice or Judge shall preside or participate in any case in which he or she might
be interested in the outcome, in which any party is related to him or her by
consanguinity or affinity within such degree as prescribed by law, or in which he or
she may have been counsel or have presided in any inferior court. Ark. Const.
amend. 80, § 12.
If a Supreme Court Justice is disqualified or temporarily unable to serve, the Chief
Justice shall certify the fact to the Governor, who within thirty (30) days thereafter
shall commission a Special Justice, unless the time is extended by the Chief Justice
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Finally, Rule 1-7, “Practice Absent a Specific Rule,” of the Rules of the Arkansas
Supreme Court, provides in its entirety: “In cases where no provision is made by statute or
other rule, proceedings in the Court shall be in accordance with existing practice.” As
previously stated, no such custom or procedure exists. And even if it did exist, any such
practice must comport with our law and our constitution.
We also take this opportunity to address the court’s per curiam opinion in Neal v.
Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995). Although not on point, because the decision
was based on waiver and no constitutional question was raised or discussed, we address Neal
because it contains a clear misstatement of the law. In Neal, in a Phillips County disbarment
proceeding, James A. Neal, Executive Director of the Supreme Court Committee on
Professional Conduct, brought suit against Wilson. At the outset of the proceedings, the two
circuit court judges in the district both recused from the proceeding. Pursuant to Act 496
of 1965, on February 18, 1992, the Chief Justice assigned Circuit Judge Lance Hanshaw to
the matter.13 On March 3, 1993, Judge Hanshaw entered an order dismissing the action and
upon a showing by the Governor that, in spite of the exercise of diligence, additional
time is needed. Ark. Const. amend. 80, § 13(A).
13
Act 496 of 1965 § 1 provided in pertinent part: “The Chief Justice of the Arkansas
Supreme Court of Arkansas . . . may assign, reassign and modify assignments of judges of the
circuit court . . . upon a temporary basis.”
Act 496 is now codified at Ark. Code Ann. § 16-10-101(b)(1) and was in effect when Neal
was decided:
(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
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on April 18, 1994, we reversed. On remand, on April 20, 1994, Hanshaw requested another
judge to be assigned to hear the case. On May 3, 1994, the Chief Justice appointed Circuit
Judge John Lineberger to the matter and notified the parties, the circuit judges in that district,
and the Phillips County Circuit Clerk of the appointment. However, the order was not filed
until September 14, 1994. In December 1994, Wilson moved for Lineberger’s
disqualification, asserting that a new circuit judge had taken office who had not recused in
the case and that the proceeding automatically reverted to the new circuit judge. On January
5, 1995, Judge Lineberger denied Wilson’s motion and ultimately set a trial date for June 13,
1995.
In May 1995, Wilson notified Mr. Neal that the new 1st Judicial Circuit Judge, Judge
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
circuit and district 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.
See Act 760 § 1, 1989.
In 2003, Ark. Code Ann. § 16-10-101(b)(1) was modified by Act 1185 to remove chancery
and probate courts from the subsection and a portion of the subsection was struck as follows:
(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
circuit and district 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.
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Olly Neal, had two dates to try Mr. Neal’s case. Judge Neal set a hearing; Mr. Neal appeared
and challenged Judge Neal’s jurisdiction, asserting that Judge Lineberger retained jurisdiction.
Judge Neal ruled that he had jurisdiction and decided the case on the merits.
Mr. Neal filed a petition for writ of certiorari with this court alleging that all orders
by Judge Olly Neal were void because Judge Lineberger, the appointed judge, maintained
jurisdiction. This court agreed with Mr. Neal and granted the writ of certiorari. In a per
curiam opinion, with two justices dissenting, the court explained its holding:
Why respondent failed to question Judge Lineberger’s assignment earlier is unclear.
Regardless, we emphasize the fact that the record before this court at the time of
Judge Lineberger’s assignment reflects that the circuit judges in the 1st Judicial District
had recused from this case, and no party had offered any motion, objection or
information to the contrary. It is the parties’ or trial court’s responsibility to apprise this court
as to whether an assignment is necessary under Act 496. Once that assignment is made, that
responsibility continues. Clearly, it is not this court’s task, on its own volition, to discover or
monitor whether the circumstances have changed to warrant the termination of an assignment or
reassignment. The mere fact that a new circuit judge had been elected in the 1st
Judicial Circuit after Judge Hanshaw’s and before Judge Lineberger’s assignments did
not, in itself, suggest the new circuit judge had not recused from trying this case.
Neal, 321 Ark. at 74–75, 900 S.W.2d at 179–80 (1995) (emphasis in original).
Without citation to any authority, the court granted the writ. The Neal opinion
stands in violation of the constitution and our interpretation of amendment 80. Elected
judges and justices serve unless they are disqualified. See amendment 80, § 13(A)–(C). Neal
seems to indicate that had the court been advised that a new judge had been elected, who
had not recused, the assignment of a special judge would have terminated, or the assignment
of a different special judge would not have been made. While this supports our conclusion
that a special judge’s appointment ends when the reason for the disqualification is removed
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by the expiration of the term of the recusing judge, we cannot agree that disqualification of
the elected judge is presumed. Rather, a duly elected judge serves unless that judge recuses
or is disqualified. Thus, to the extent Neal holds otherwise, we overrule it.14
Finally, here, the governor exercised his authority to appoint Special Justice
McCorkindale to replace Justice Hoofman, who had recused. Yet, at the end of his term,
Justice Hoofman was replaced by an elected justice, and Special Justice McCorkindale’s
appointment expired. There is no separation-of-powers issue. We also note that despite
Chief Justice Hannah’s assertion in his recusal letter that addressing the issue in this case is an
attempt to “by judicial fiat usurp the power of the executive branch,” the parties themselves
14
Although the concurring opinion would not overrule Neal, because “Neal had
nothing to do with special justices under Amendment 80 or its predecessor or the length of
special justices’ terms,” that position is fatally flawed. Regardless of whether the Neal
opinion predates the passage of amendment 80 in 2000 or the reliance on Ark. Code Ann.
§ 16-10-101(b)(1), Neal is inconsistent with the constitution that was in effect at the time
of that decision in 1995 and is a misstatement of our law. At the time Neal was rendered, our
constitution, article 7, § 20, “Disqualification of judges – Grounds” provided:
No judge or justice shall preside in the trial of any cause in the event of which he may
be interested, or where either of the parties shall be connected with him by
consanguinity or affinity, within such degrees as may be prescribed by law; or in
which he may have been of counsel or have presided in an inferior court.
In Neal, the circuit judge was not disqualified as required by art. 7, section 22, for an
appointment of a special judge. Therefore, no appointment was necessary, this court did not
have jurisdiction or authority to appoint Judge Lineberger and likewise this court did not
have jurisdiction to void the actions of an elected circuit court judge, Judge Neal.
Accordingly, we must overrule Neal.
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do not argue a separation-of-powers issue.15
In sum, the decision to take the question of which justices constitute the court in
Smith v. Wright, Case No. CV-14-427 as a separate case was made because that appeal cannot
move forward until this fundamental question has been resolved. Had this court not taken
action to resolve this fundamental question, the delay in deciding the appeal in Smith v.
Wright, Case No. CV-14-427, would have been interminable. As is plain from this opinion,
the answer to the question of which justices are to decide the primary appeal in Smith v.
Wright is compelled by our constitution and our case law.
Last, we must note that our decision in this opinion supports the will of the people
of the State of Arkansas. In November 2000, the electors in Arkansas approved amendment
80 by a vote of 431,137 to 323, 647. See amendment 80, Publisher’s Notes. Further, in May
2014, the electors of Arkansas elected Justice Rhonda K. Wood to serve an eight-year term
on the Arkansas Supreme Court, commencing on January 1, 2015. Thus, the people of
Arkansas are empowered by our constitution to elect the justices of this court. Those justices
are obligated to hear and decide all cases in which they have no disqualification.
Question answered; Wright’s motion to withdraw response is moot; Wright’s
amended motion to withdraw response is granted; Wright’s motion to dismiss is denied.
Special Justices BETTY C. DICKEY and SHAWN A. WOMACK join.
15
Indeed, then Governor Mike Beebe’s official appointment states that Special Justice
McCorkindale was appointed to replace Justice Hoofman on Case No. CV-14-427. This
court’s decision in no way usurps the authority exercised by then Governor Beebe in
appointing Special Justice McCorkindale.
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Special Justice BRETT D. WATSON concurs.
HANNAH , C.J., and DANIELSON and WOOD, JJ., not participating.
BRETT D. WATSON , Special Justice, concurring. I agree that Special Justice
McCorkindale’s commission ended when Justice Hoofman’s term ended and that Special
Justice McCorkindale can thus no longer serve as a justice in Case No. CV-14-427 (“the
marriage case”). I also agree that because Justice Wood’s term on the court has begun, she can
participate in the marriage case. The majority and I diverge on the scope of the opinion and
whether to overrule Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995).
In reaching its decision, the majority opinion goes beyond what is needed. The
question is whether Justice Wood or Special Justice McCorkindale can serve as a justice in the
marriage case. The answer is found in the constitutional text and is supported by Caldwell’s
Adm’r v. Bell & Graham, 6 Ark. 227 (1845). I would limit our analysis to the facts and law
essential to the issue at hand.
I also disagree with the decision to overrule Neal. It involved facts and law different
from the case here. The parties there failed to tell this court that a new circuit judge had been
elected and that the court thus did not need to reassign another circuit judge under Ark. Code
Ann. § 16-10-101(b). Neal had nothing to do with special justices under Amendment 80 or
its predecessor or the length of special justices’ terms. Perhaps Neal was wrongly decided. But
that is not something we must decide today. We should instead wait until a case arises with
facts and legal issues similar to those in Neal. This is not that case.
For these reasons, I respectfully concur in the judgment.
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