ARKANSAS REPORTS Vol. 255
CASES DETERMINED
I N THE Supreme Court of Arkansas
FROM
SE PTEM BER 4, 1973- FEBRUARY 11. 1974
RUTH DEXTER VINES REPORTER
PUBLISHED BY THE STATE OF ARKANSAS 1974
ARK.]
APPENDIX THE SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT v. Guv
1069
HAMILTON JONES, SR.
73-121 499 S.W. 2d 619 October 8, 1973 PER CURIAM Now on this day, the above styled cause comes on for hearing and is considered by the court on the pleading filed by respondent, Guy Hamilton Jones, Sr., on July 30, 1973, and the Reply filed to such pleading by the Supreme Court Committee on Professional Conduct on September 9, 1973.
Respondent, in his Response, avers that there are urrique, extenuating and mitigating facts and circumstances that would bear on whether petitioner's petition
should be granted, and that he should be given the opportunity to present evidence to establish such circumstances.
After due consideration of the pleadings filed by both petitioner and respondent, it is the opinion of the court that ilie request of respondent should be granted, limited, however, as hereinafter set out. Under Paragraph 11, in Sub-sections A, C, and D, respondent mentions matters which relate only to the charges against him, and his conviction in the United States District Court for the District of Arkansas (Eastern District, Western Division), and these allegations, referring only to mat
ters that have already been adjudicated and disposed of, are not considered proper subjects for further testimony. In other words, it is not the intent of this order to permit any evidence relating to the issues there concluded.
Respondent may offer evidence under Sub-sections B, E, F, G, H, I, and J, which might be deemed pertinent to the issue of mitigation.
It is, therefore, the order of this court that respondent, Guy Hamilton Jones, Sr. , be permitted to offer evidence on the matters set out under the sub-sections hereto-
1070 APPENDIX [255 fore mentioned, but he is not permitted ot offer any evidence under Sub-sections A, C, and D.
For the purpose of conducting such a hearing, W. D. Murphy, an Attorney of Batesville, is hereby named as Master of this court and said Master is authorized and directed to take testimony offered by respondent, and to take testimony offered in opposition thereto by The Supreme Court Committee on Professional Conduct in an open ana public hearing, each side to be represented by counsel who shall have the full right to eKamine and cross-examine as in any trial in a court of law or equity. Said hearing shall be conducted in a location or locations convenient to the Master, shall be reported by a competent reporter selected by the Master, and shall be concluded
not later than sixty days from the entry of this order. At the conclusion of the hearing, said reporter shall transcribe the testimony and a record of same shall be filed with this court by the Master.
Thereafter, briefs shall be filed in accordance with Rules 7 and 9 of this court, respondent Guy Hamilton Jones, Sr., filing in accordance with Sub-section (a) of Rule 7, petitioner, The Supreme Court Committee on Professional Conduct, filing in accordance with (b), and respondent being permitted to file reply brief in accord with Sub-section (c).
Costs will be adjudged as m chancery court. It is so ordered. Justice Byrd would permit a proffer of what respondent wished to show under Sub-sections A, C, and D of Paragraph 11.
ARK.]
APPENDIX HAROLD SHERMAN UPTON v. STA TE OF ARKANSAS
1071
5820 502 S. W. 2d 454 Supplemental opinion delivered December 24, 1973 [Original opinion delivered July 23, 1973, 254 Ark. 664, 497 S.W. 2d 696.)
1. CRIM IN AL LAW - APPEAL & ERROR - REMAND FOR A NEW TRIAL-That the Supreme Court ended the opinion with the word "reversed" instead of "reversed and remanded" or a similar phrase did not establish the case had not been remanded for a new trial since the court customarily uses the words interchangeably. 2. c RIMINAL LAW - REMAND - EFFECT OF MANDATE.-The opinion could not properly be construed as directing a dismissal of the information where the mandate remanded the cause for further proceedings . [Ark. Stat . Ann. § 43-2725.2 (Supp . 1971).]
3.
CONSTITUTIONAL LAW -GOVERNMENTAL POWERS & FUNCTIONS.-The
manner in which the Supreme Court writes its opinions does not fall within the authority of the legislative branch of government.
Petition for clarification of opinion from Union Circuit Court, First Division; Melvin Mayfield, Judge.
Camp & Thornton, P.A., and fames]. Calloway, for appellant.
Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Deputy Atty. Gen., for appellee. GEORGE RosE SMITH, Justice. In our substituted opinion on rehearing in this case, delivered on July 23, 1973, we reversed the judgment because the State had been al
lowed to introduce inadmissible hearsay evidence. In due course our mandate was issued, remanding the case to the circuit court "for further proceedings to be therein had
according to law, and not inconsistent with the opinion herein delivered."
Thereafter Upton filed in the trial court a motion to dismiss the information, on the ground that the case had not been remanded for a new trial. The trial court overruled that motion. Upton then filed a petition for habeas corpus in the United States District Court, reasserting the same point. Judge Oren Harris, to whom the petition was presented, suggested that the Attorney General seek
1072 APPENDIX [255 a clarification of our opinion. Such a request for clarification is now before us. The time for a response to the Attorney General's petition has expired without any response having been filed, but we have studied Upton's
petition for habeas corpus and the supporting brief that was filed by his counsel in the federal court.
Upton contends that this court did not remand the case for a new trial, because our opinion ended with the word "Reversed" instead of "Reversed and remanded"
or some similar phrase. We customarily use the terms interchangeably; so that no significance attaches to either one. We frequently end our opinions with the word "Re-versed" even though the opinion itself shows that a new trial is contemplated. Among countless such opinions in our Reports, recent examples include Courtney v. State, 252 Ark. 620, 480 S.W. 2d 351 (1972); Morris v. State, 252 Ark. 487, 479 S.W. 2d 860 (1972); Swanson v. State, 251 Ark. 147, 471 s.w. 2d 147 (1971).
It is argued that our opinion in the case at bar should be construed as directing a dismissal of the information, in the light of§ 12 of Act 333 of 1971, which reads:
A conviction shall be reversed and a new trial ordered where the Supreme Court finds that the conviction is
contrary to the Constitution, the laws of Arkansas or for any reason determines that the appellant did not have a fair trial. Where appropriate, the Supreme
Court shall reverse the conviction and order the appellant discharged. In all other cases, the conviction must be affirmed, but the sentence of the appellant
may be reduced if it is deemed excessive. [Ark. Stat. Ann. § 43-2725.2 (Supp. 1971).]
We do not read the statute as having anything to do with the manner in which this court writes its opinions -a matter not falling within the authority of the legisla
tive branch of the government. Vaughn v. Harp, 49 Ark. 160, 4 S.W. 751 (1886). But even if we did so interpret the statute, it states plainly that the court, where appro-priate, shall order the appellant discharged. We did not enter such an order. To the contrary, our mandate remanded the cause for further proceedings, which completely answers Upton's present contention.
HARRIS, C.J., not participating.
ARK.]
APPENDIX
1073
IN THE MATIER OF UNIFORM DOCKETING RULE 73-240 December 24, 1973 PER CURIAM Effective January 1, 1974 the following is adopted as Rule 15 of the Uniform Rules of Procedure for Cir-cuit, Chancery and Probate Courts. RULE 15 At the discretion of the presiding judge the following may be adopted as a uniform docketing rule of the court:
DOCKET NUMBERING CIVIL DOCKETS Civil cases shall be assigned docket numbers in the order of filing as follows: Begihning with the first case filed each year in each court, the last two digits of the current year shall be entered followed by a hyphen and the number assigned to the case beginning with the number " l " . Thus, the first case filed in 1974 will be assigned the docket number "74-1" and the first case filed in 1975 will be assigned the docket number "75-1 " . In those instances where the presiding judge is of the opinion that further identification is desirable the letters "CIV" preceding the docket number for civil cases in Circuit Court, the letter "E" preceding the docket number for cases filed in Chancery Court, and the letter "P" preceding the docket number for cases filed in Probate Court may be used.
CRIMINAL DOCKETS The procedure to be used for criminal cases shall be the same as that for civil cases except that the docket number shall be preceded by · the letters "CR"; thus the
1074 APPENDIX [255 first criminal case filed in the yea,r 1974 will be designated as "CR-74-1" and the first criminal case filed in the
year 1975 will be designated as "CR-75-1".
COURTS OF LIMITED JURISDICTION All County, Juvenile, Municipal, City, Police, Justice of the Peace Courts and Courts of Common Pleas shall follow the docketing procedure set forth above for Cir-
cuit, Chancery and Probate Courts.
ARK.] APPENDIX 1075 PER CURIAM In compliance with the motion adopted by the Arkansas Judicial Council on October 12, 1973, whereby said Council approved the Code of Judicial Conduct [with the second alternate Canon SC (2)] adopted by the House of Delegates of the American Bar Association on August 16, 1972, this Court declares that such Code constitutes proper standards for the Judiciary of this State. The reports of compensation required by Canon 6 of the Code should be filed annually during the month of June, for the preceding calendar year, with the Clerk of the Arkansas Supreme Court, Justice Building, Little Rock Arkansas, 72201.
BYRD, J., dissents. CONLEY BYRD, Justice, dissenting. I dissent to the action of this court in adopting the Judicial Code as a standard of conduct for judges and in fixing a time and place for the filing of the financial reports required by the Judicial Code. Such action on the part of this court is not authorized by the Constitution-in fact as I read the Constitution such action is prohibited. Article 4, of the Constitution of Arkansas provides:
"§ I. DEPARTMENTS OF GOVERNMENT.-The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magis-tracy, to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.
"§ 2. SEPARATION OF DEPARTMENTS.-No per-son, or collection of persons, being one of these departments, shall exercise any power belonging to
either of the others, except in the instances herein-after expressly directed or permitted."
The only other provisions of our Constitution g1vmg any jurisdiction a~d power to the Supreme Court. are Article 7, § 4 and amendment 28. Article 7, § 4 provides:
1076
APPENDIX
(255
"JURISDICTION AND POWERS OF SUPREME COURT.-The Supreme Court, except in cases otherwise provided by this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the State, under such restrictions as may from time to time be prescribed by law. It shall have a general superintending control over all inferior courts of law and equity; and, in aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of error and supersedeas, certiorari, habeas cor-pus, prohibition, mandamus and quo warranto, and, other remedial writs, and to hear and determine the same. Its judges shall be conservators of the peace throughout the State, and shall severally have power to issue any of the aforesaid writs."
Amendment 28 provides: "The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law."
In Parker v. Laws, 249 Ark. 632, 460 S.W. 2d 337 (1970), I pointed out in my concurrence that this court has no authority under Article 7, § 4 to discipline judges -the discipline of judges is reserved to the General Assembly under the provisions on impeachment. Amendment 28 applies by its own provisions only to "the practice of law and the professional conduct of attorneys at law". By the decisions of this court it does not permit the investigation of the conduct of a trial judge.
While I agree that the "Judicial Code" is worthy of adoption by this state as a standard of conduct for judges, it appears to me that we are violating Article 4, § 2 and
usurping a power reserved to the legislative body by promulgating a rult that would lead the public to believe that judges are obligated by rule of this court to comply therewith.
Even if the per curiam adopting the "Judicial Code" be considered only as a guide to judicial conduct and not as a rule of judicial conduct, still we are giving the
ARK.] APPENDIX 1077 appearance of legislating and with some logic can be accused of legislating contrary to the Constitution. If this country is to remain a "nation of laws" then those in authority (especially those with whom "the buck stops") must not only comply with a constitutional mandate but also with the spirit thereof.
For the reasons stated, I respectfully disagree with the foregoing per curiam adopting the "Judicial Code."
1078
INDEX
[255
ABSTRACTS OF TITLE: Rights, duties & liabilities of examiner, right of action. St. Paul Fire & Marine Ins. Co. v. Crittenden Abastract & T itle Co .. 706.
ADMINISTRATIVE LAW & PROCEDURE: Right to counsel, notice. Thomas Termite Control v. Committee "A" Ark. State Plant Baord, 517. Rules of evidence, review. Id. Evidence, admissibility. Id. Form of proceeding, review. Id. Burial Association Board, power & jurisdiction. Hoggard & Sons v. Russell Burial Ass'n et al, 576.
ADVERSE POSSESSIO : Acquisition of rights, entry on land. Utley v. Ruff, 824. Acquisition of rights, actual possession. Id. Limitation of actions, period of limitations. Id. Extent of possession, operation & effect. Id. Nature & requisites, a'tquisition of rights. Id. Nature & requisites, use & occupation. Id. Computation of period, interruption of possession. Id. Limitations on actions, persons under disability. Sparks v. Shepherd, 96!1. APPEAL & ERROR: Ruling on subpoena Duces Tecum, review. M cMahan v. Bd. of Trustees, U. of A., 108. Defect in proof. Petrus v. Ark. Irrigation Co., 115. Reversal & remand, defect in proof. Id. Failure to raise issue in lower court, review. Wright v. Ark. State H wy. Comm'n, 158. Failure to raise objection in trial court, review. Burchfield v. Carroll, 245. Trial de novo, review. Moore v. Smith, 249. Untimely motions, review. Wade v. J\'Ioody, judge, 261i. Verdict & findings, review. Brooks v. McGill, 313. Findings on conflicting evidence, review. Id. Rulings on objections, review. Id. Appealable orders, presumption. Reynolds v. Bakem Credit Union, 322. Orders & proceedings after judgment, presumptions. Peek v. Meadors, 347. Admission of testimony as erroneous, review. Dicks v. Naff, Mayor, 357. Decisions reviewable, final appealable orders. Ratzlaff v. Franz F 1ods of Ark., 373. Derisions reviewable, piecemeal appeals. Id . Verdict & findings, review . ]ones v. American Pioneer Life Ins. Co., 474. Decisions reviewable, final orders. White Poultry Supply v. Brower Mfg. Co., 487. Failure to raise issue in lower court, review. Weir v. Trucks, 494. Failure to urge objections, review. Cowger & Stewart v. Mathis, 511. Grounds of review, necessity of objection. Thomas Termite Control v.
Committee "A" Ark. State Plant Bd., 517. Granting a new trial, discretion of trial court. Security Ins. Co. v. Owen, 526. Granting a new trial, evidence. Id. Finding of trial judge, operation & effect. Hoggard & Sons v. Russell Burial Ass'n et al, 576. Chancellor's findings, review. Lewis v. Lewis, 583.