SUPREME COURT OF ARKANSASu". CV-15-227

NATHANIEL SMITH, M.D., ET AL.,APPELLANTS

opinion Detivered May 7 , 2015

RESPONSES TO SMITH V. WRICHT,201 5 Ark. 38 (per curiam)

M. KENDALL WRIGHT ANDJULIA E.WRIGHT, INDIVIDUALLY AND ONBEHALF OF THEIR MINORCHILDREN, G.D.W. AND P.L.W., ETAL.

APPELLEES

KAREN R. BAKER, Associate Justice

The Arkansas constirurion providcs that "[tlhe Supreme court slrall be composed of

seven Justices." However, in Srrirft v. Wight, Case No. CY-14-427, in violation of our

constitution, there are eightjusticcs poiscd to decide thatappeal. 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 Smirft v. wight,

Case No. CV-14-427? Specifically, the question is whetherJustice Rhonda K. Wood or

SpecialJustice Robert W. McCorkindale is one ofthe seven justices required by the Arkansas

constitution, amendment 80, to constiture the Arkansas Supreme court in case No.

cv-14-427? The question before us is neither tnfling nor insignificant. Instead, it is a

question of major constitutional significance; thcrefore, it became necessary to take the issue

as a case so that it may be properly decided. After a careful examination of our constitution,

WITHDRAW RESPONSE

DENIED.

ollr statutes, and our case [aw, we conclude that the answer to this question is clearly and

unambiguously thatJustice Rhonda K. Wood, having been duly elected by the people of this

state and having begun her eight-year term as a jusrice on the Arkansas Supreme Court on

January 1,2015, is the qualified justice invested with thejudicial power to participare in Case

No. CV-14-427 and that SpecialJustice Robert W. McCorkindale's constitutional authoriry

to participate in Case No. CV -14-427 expired December 31.,2014.

Factual and Procedural Background

The history ofrhe matter before us begrns with the companion case of Srn ltfi v. Wight,

Casc No. CV-14-421 , wherein the appellant, Smith (hcrcinafrer "thc State") appealed the

Pulaskr Counry Circuit Court's order in favor of the appellee, Wnght, declaring amendment

83 of thc Arkansas Constitution and related statutes unconstitutional.l Several counry clerks

arc also appellants in this case. Here, appellants, White, Lonokc, Conway, Saline, Faulkner,

and Washington County Clerks (hereinafter "White Counry"), 6led responses regarding the

instant case, which will be considered accordingly. The nrerits of smith v. wright, case No.

CV -1,4-427 are not at issue in the mattcr before us in this opinion.2

On May 15, 20"14, an appeal was lodged in Smith u. Wright, Case No. CV-14-427 .

rAlthough a portion of the "Factual and Procedural Background,, predates rheappointments of Special Justices Dickey and womack to serve on this case and is outsidethcir personal knowledge, they agree that this section ofthc opinion is necessary to establishthc coun's junsdiction in this matter.

2ln an effort to be abundantly clear to the reader,mcrits of Case No. CV-14-427, and this coun will notthis opinion.

this opinion has no bearing on therender any opinion on that case in

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On Septenrber 10, 201.4, Justice Cliff Hoolman recused from thc marrcr. On October 2,

2014, then Governor Mike Beebe appointed Robert w. McCorkindale to serve as spccial

justice in place oflustice Hoofman. On October 13,2014, we grantcd Wright's request for

oral argumcnt. On October 23, 2014, a majoriry of this court, with Special Justice

McCorkindale joining the majoriry, granted Wright's motion to expcdite the appeal, with

Justice Hart dissenting and Justice Hoolman nor participaring. on october 23, 2014, oral

argumcnt was schcduled by the Suprenre Court Clerk at the direction of ChiefJustice Jim

Hannah, to be held on November 20,2014. Thereafter, the parties timely filed their brie6.

Additionally, eight amicus briefs were 6led. Further, prior to the November 20,2014 oral

argument, pursuant to Rule 5- 1 (i) of the Arkansas Supreme court Rules, thc partics 6led

multiple notices of additional authonty that they intended to rely on during oral argument lor

a combined total o[ approximately fifteen additional cases.

on Novenrber 20,2014, the court held oral argument. In accordance with the

supreme court's previously adopted and published calendar, the 2074 term concludcd on

Deccmber 18, 20'l 4 withour an opinion in smith u. wight, caseNo. cv -14-427 having been

issued. on December 31, 2014, Justice I)onald corbin andJustice cliffHoofman completed

their terms on the Arkansas Supreme coun. prior to the end of their terms, chiefJustice

Hannah, approved a statement for release ro the press by Stephanie Harris, Supreme court

Communications counsel, that it was this court's custom and practice that a special justice

who is appoir.rted 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 rcleased to the

press, after a diligent and exhaustive search of this court's case law and docket, we have been

cv-15-227

unablc to find a singlc casc in which a special justice continued to serve on a case when an

opinion had not bccr.r dclivered by the end of the term of the disquali6ed justice who had

been replaced by a nervly clecred, quali6ed justicc.3 Accordrngly, this court does not have a

settled custom or practicc 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 Jusricc Wynne replaced Justice Corbin. The

2015 Supreme Court first convened onJanuary 6,20'15, for the investiture oflusticc Wood,

Justice Wynne, and Jtrsticc Karen R. Baker, vghose previous term had expired but who had

been elected to a subsequent eight-year term. The 6nt conference ofthe newly constitured

court was held onJanuary 7,2015. At that trme, rhere were a total of four cascs, which had

been previously subnritted to the court in 2014 but were removed from submission whcn thc

'ln Unborn Chikl Amentlntent Comm. u. W'ard, a spccial justice remained on the case

after a two-and-one-halfyear delay that resulted rvhen this court, after oral argument, srayedthe appeal pending resolution on appeal of a Gderal court's order ruling that theconstitutional amendrnent under consideration in Ward was unconstitution al. See L|nbornChild Amerulment Conm. v. Ward,328 Ark. 454, 942 S.W.2d 591 (1997); Unborn ChihtAmendment Comm. u. Ward,318 Ark. 165, 883 S.W.2d 817 (1994). In rhar case, the justrcewho had recused was scill on the court when the case was submitted following the stay. Also,in l-ake View Sthool District No. 25 of Phillips Coutlty u. Huckabee, Case No. 01-836, a specialjustice contrnued to scrve alter thejusrice who hati disquali6ed was re-elecred to a subsequenteight-year term; but in that case the electedjusticc remained disqualified from serving. Suchis not the case here in case No. cY-1,4-427. Finally, we note that in isolated incidents,special justices havc participated in the consideration ofa petition for rehearing, after thed isqualified j ustice was replaced by a newly electcd justice. However, in those limited cases,after an opinion was delivered, the elected ofEcial assented to the specialjustice's continuingscrvice through the petition for rehearing, and no constitutional challenge was presented.see, e.9., Kinbrell v. Mccleskey, case No. 11-1299. However, despite the timing o[ thcappeal or the elected justice's agreemenr to the special justice's continued service, based onour decision here, that Practice shall no longer continue because it violates our constrtution.

cv-15-227

term ended without a mandatc having been issued in those cases. In two oFthose cascs, a

special justice had been appointed due to the disquahfication ofJustice Hoofman.

At theJanuary 7, 2015 confercnce, Justice Wood expressed her belief that it was her

constitutional dury to participate in any matter beforc the court, unless she had a reason to

recuse. Arkansas Code ofJudicial Conduct, Rule 2.7, "Responsibiliry to Decide," provides:

"A judge shall hear and decide mattcrs assigned to thejudge, except when disqualiGcation is

required by Rule 2.11 or othcr law." Thc corrrnent to thc rule provides:

Judges must be available to decide thc matters that come before the court. Althoughthere are times when disqualiGcatron is necessary to protect the rights oflitigants andpreserve public confidence in the independence, integrity, and impartialiry o[ thejudiciary, judges must be avarlable to decide rnatters that come before the courts.(Jnwarranted disqualification may bring public disfavor to the court and to thejudgepersonally. The digniry of thc court, the judge's rcspect for fulfillment of judicialdutres, and a proper concern tbr the burdens that may be imposed upon thc judge 'scolleagues requirc that a judge not use disquali6cation to avoid cases that prescntditlicult, controversial, or unpopular issues.

See also Rule 2.1 1, "Disqualification."

Justice Wood did not recuse lrom either of the cases in which a specialjustice had bee n

previously appointed due to Justice Hoofman's recusal. See infa n.8. Special Justice

McCorkindale participated by phone aud maintained that his appointment as a special justice

in Case No. CV -14-427 continued. Id. A[ter researching the issue, the court unanimously

resolved to notify the parries in case No. cv-14-427 by letter from chiefJustice Hannah on

behalf of the court thatJustice Wood and SpecialJustice McCorkindale both asserted that

they should participate in the case when it is submitted ro the court. Id. Despite this initial

unanimous agreement, no letrcr was senr, and the matter languished untilJanuary 23,2015.

rd.

cv-15-227

On January 23,2015, the State filed a motion for a second oral argument. In thc

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 argumcnt on November 20,201,4.1

The State further contended that "FormerJustice Cliff Hoolman recused fiom this case and

was replaced by Special Justice Robert W. McCorkindale. . . . Justice Hoofman's term has

ended, and . . . Justice Rhonda K. Wood replacedJustice Hoofman on the Court. Justicc

Wood was not present at the oral argument on November 20,2014." OnJanuary 27,2015,

Wnght filed her response to the motion for a sccond oral argumcnt and urged this court to

deny the motion as unnecessary. Wnght asserted that "Special Justice McCorkindale was

speciGcally appointed by the Governor as a Special Justice to hear 'this specific case.'

Specral Justice McCorkindale was present and panicipated in the oral argument held on

November 20, 2014. SpecialJustice McCorkindale was appointed specifically to presrde over

this case."

On February 5,2015, because the parties had taken compcting positrons regarding the

justices who would serve on Case No. CV-14-427, citing to Hill u. State,362 Ark. 659, 210

S.W.3d 123 (2005), a per curiam was issued ordering the parties to provide any aurhoriry to

support their respective positions regarding the justices who should preside over rhe appeal.

Smith,2015 Ark. 38. Additionally, we note that Smith,2015 Ark. 38, was issued unanimously

by this court, including chiefJustrce Hannah andJustice Paul Danielson, who havc both now

rchrefJustice Hannah did not attend the oral argument because he was attending anoLlt-of-statc court conference, but counsel was informed that he would participate and wouldhave access to thc oral-argument video. Justices wynne and wood wcre not on the courtat that tinre.

cv-15-227

rccused from this matter.5 On March 18,2015, altcr the parties had filcd timely responses to

thc per curiam, with neither Justice Wood nor SpccialJusticc McCorkindale participating,

thc court unanimously decidcd to take up the matter as a separate case. Desprte this

unanimous decision, no per curiam order was issued by the clerk at that time.6 See inJra 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 SUPRTME COURT ISSUED THE FOLLOWING ORDERTODAY 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 INTEN DAYS. DANTELSON,J., DTSSENTS. NEW CASE NO. rS Cy-15-227.

One week later, on April 8, 2015, Chief Justice Hannah and Justice Danielson

simultaneously recused from this case.7 ChiefJustice Hannah's recusal lettcr stated in lrs

5We note thar Just'ice Danielson stated in his recusal letter:

I believe that a majoriry of this court has manufactured a case where no case orcontroversy exists. There has been no motion by any parry challenging thequalification ofJustice Robert McCorkindale to conrinue to decide the appeal inSmith u. Wright, No. CV-1,4-427.

However, the record clearly demonstrares thar the parties took competing positionson which justices were to serve on this case and the court, including Justice Danielson,unanimously ordered lormal responses to the issue presented.

6wc note thar a record of the court's decision on March 18, 20 j 5, is contained in thecasc record pursuant to Administrative order No. 19 and maintained by the office o[ theSupreme Court Clerk.

TThe docket reflects that recusal letters were filed at 3:03 p.m. and 3:04 p.m.7 cv_15_227

enrirety:

Aftcr careflul consideration and with much regret, I must recuse lrom Snith v.

Wrtght, No. CY-15-227. I believe that a majoriry of this court has created out ofwholc cloth an issue to delay the disposition in Smith u. Wright, No. CV-14-427.

FollowingJustice CliffHoofman's disquali6cation in Snilfi u. Wright, No. CV-1,4-427, Governor Mike Becbe appointcd the Honorable Robert W. McCorkindale"as Special Associate Justice of the Arkansas Supreme Court to participate in thisspecific case." The govemor's appointment power conferred by the Arkansas

Constitution is a mattcr protected fiom judicial interference by theseparation-of-powers doctrine. This court cannot by judicial 6at usurp the power ofthe executive branch.

When I took the oath of the office, I swore to uphold the Constitutions of theUnited States and thc State of Arkansas. Further, I am obligated to lollow theArkansas Code ofJudicial Conduct. Canon 1 mandates that a judge shall uphold andpromote the independence, intcgnry, and impartialiry o[ the judiciary. The oath ofoflice and my duties pursuant to the Code ofJudicial Conduct require that I recuse inSmith u. Wight, No. CV-15-227. To be clear, I do not rccuse from the appeal in Smi rh

u. Wright, No. CV -14-427.^

sThe procedural background providcd in this case is in part a response to ChieflusticeHannah's and Justicc Danielson's April 8, 2015 recusal letters accusing the majoriry of thiscourt of delaying disposition in Casc No. CV-14-427. Pursuant to Rule 2.10 (E) of theCode ofJudicial Conduct, ajudge is permitted to respond to allegations regarding his or herconduct in a matter. Rule 2.10 o[ the Code ofJudicial Conduct, 'Judicial Statements onPending and Impending Cases," provides in pertinent part:

(A) A;udge shall not make any public statement chat night reasonably be expectedto affect the outcome or impair the fairness of a matter pending or impending in anycourt, or make any nonpublic statement that might substantrally interfere with a lairtrial or hearing.

(E) Subject to tlrc requirements oJ paragraph (A), a judge nay respond directly or through a

third party to allegations in the mcdia or elsewhere concerning the judge's conduct in d mattet.

(Emphasis added.) See Recusals ktters lrom Chieflustice Hannah andJustice Dani elson, supra,at7n.5&8.

cv-t5-227

Althotrgh Chie{ustice Hannah recuscd and asserted that "a majoriry of this court has

created out o[ whole cloth an issue to delay the disposition in Smith u. Wright, No.

CV-14-427," the docket unambiguously reflects that Chief Justice Hannah joined in the

decision to take the mattcr as a case on April 2,2015, and then recused one week afterjoining

that decision. Moreover, it is patently clear that the appeal in Crs. No. CY -14-427 cannot

move forvvard without 6rst deciding which justices will hear the appeal, and no other action

is possible until the issue is sertled. Therefore, the purpose of the present action is to resolve

this rssue so that the underlyrng case can be determined and not for thc purpose ofdelay. See

supra n-8.

On Apnl 8,20'15, Wnght filed a motion to withdraw her response to our February

5, 2015 per curiam, and on April 13, 201.5, she filed an amended motion to withdraw her

response to our per curiam. In the amended motion, she requested that this court 6nd the

issuc moot and dismiss this case.e On April 1,3,2015, the State and Whitc County timely

6lcd their respective brieB, and the issue is now propcrly belore this court.

l-aw and Analysis

We now consrder the merits of this case. The narrow issuc presented is to determine

which justices will serve on Smith u. Wright, Case No. CV-14-427.

First, we tum to Amendment 80 to the Arkansas Constitution, which govems the

judicial branch and provides in pertinent parr:

eHowever, despite wright's position, any action by a speciar jusrice once his or herpower has terminared would be void. see Hyllis v. state,45 Ark. 47g (1gg5) ("[c]onsent,either expressly or tacitly given, cannot impart judicial power.,,).

cv-15-227

$ l.Judicial Powcr

The judicial power isconsisting of a Supreme

$ 2. Supreme Court

vested in the Judicial Department of state governnrent,Court and other courts established bv this Constirution.

(A) The Supreme Court sftal/be composed of sevenJustices, one of whom shall serveas ChiefJustice. TheJustices of the Supreme Court shall be selected from the Stateat largc.

$ 12. Temporary Disqualification ofJustices or Judges

NoJustice orJudge shall preside or participate in any case in which he or she nrighrbe interested in the outcome, in which any parry is relatcd to him or hcr byconsanguiniry or af6niry wrthin such degree as prescribed by law, or in whrch he orshe may have been counsel or have presided in any inferior court.

$ 13. Assignment of Special and RetiredJudges

(A) lfa Supreme CourtJustrce is disqualified or tcmporarily unable to serve, the ChiefJusticc shall certify the fact to the Governor, who within thirry (30) days thercaftershall conrmission a Special Justice, unless the time is extended by the Chief Justicer.rpon a showing by the Govemor that, in spite of the exercise of diligence, additionaltime is needed.

$ 16. Quali6cations and Terms ofJustices andJudges

(A) Justices of the Supreme Court andJudges of rhe Court ofAppeals shall have beenlicensed attomeys of this state for at least eight years immediately preceding rhe dateof assuming ofEce. They shall serve eight-year terms.

(Emphasis added.)

Also relevanr ro rhis case is Ark. code Ann. $ 21-1-102(a)(l) (Repl. 2004) "Terms;

certain oflicers" which provides,"The terms of ofhce of the Justices of the Supreme Court

10 cv-15-227

. . . shall bcgin on January 1 lollowing their clcction."1"

With these constitutional and statutory provisions in nrind, we turn to the issue beforc

us and recount the parties' posrtions. Relying on amendment 80, SS 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, becausc only thejustices currently serving terms on the court possess the

constitutional authonry to decide cases in 2015. The State contends that pursuanr to

amendment 80, the appointmcnt 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 thar thc

disqualification, Justice Hoofman's recusal, ende d when Justice Hoofman was re placed by a

newly elected jusrice. In sum, the State contcnds that pursuant to amendment 80, therc is

no longer a disqualification, and that it isJustice Wood, not SpecialJustrce McCorkindale,

who should participate in the coun's disposition of Smith u. Wright, Case No. CV-14-42i.

The State lunher contends that it has not identified a rule or statute that govems chis

matter. Although Rulc 1-7 of the Arkansas Supreme court Rules calls for rhis couft to

render decisions in accordance with "existrng prectice," the state is unaware ofany existing

practice regarding the issue presented. Finally, citing to cates u. wunderlich,2l0 Ark.724,

197 s.w.2d 482 (1946), the Srate contends that the date of the opinion controls, and the

justices who participatc rn the opinion must be sitting justices of the coun on the date the

opinion rs rendered.

r.we also nore ther pursuanr to Ark. code Ann. $ 16-1r -101 (Repl. 2010) ,.ThcSupreme coun of Arkansas shall begrn its annual term on the second Mondry o[septemberin each year and may recess and adjoum from time to time as the court o.d..s."

11 cv-15-227

White Counry likewise contends that amendment 80 controls and asserts that $$ 13

and 16 answer the issue presented. White Counry contends that, prrrsuant to amendment

80, S 13, the constitution's prefcrence is lor cases to be decided by the elected justrce 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 bcen disqualified. Stated

diflerently, White Counry contends that SpecialJustice McCorkindale's appointment expired

when Justice Hoofman's term ended, and that Justice Wood, as thc sitting elected justice,

should serve on the case. Further, White Counry contends that anrcndmenr 80, $ 16 is a

"mandatory constitutional provision that effectuates the will of the People o[ Arkansas by

allowing J ustices they elect to serve definite terms," and must be followed.

Finally, in her amended motion to wirhdraw her response, Wright does "not wish to

take a position upon whichJustices should decide this case. . . . [Wnghtl specifically waives

any objection to whatever determination this Court might make itself as to the appropnate

justices to decide the matter."

Turning to our review of the law, when interpreting a statute, "we construe itjust as

ir reads, giving the words their ordinary and usually accepted meaning in commonJangrage.

We construe the statute so that no word is lelt void, superfluous, or insigniGcant, and we give

meanrng and effect ro every word in the statute, ifpossible." Daimlerchryslu Corp. u. smelser,

375 Ark. 216, 222,289 s.\)7.3d 466, 472 (2008). when interpreting rhe constirution, "our

task is to read the laws as they are written, and interpret thenr in accordance with established

Language ofa constitutional provision that ispnnciples of constitutional construction.

12 cv-1s-227

plain and trnambiguous must be grven rts obvious and common meaning." Smith u. Sidney

Moncrief Pontiar, Buick, CMC Co.,353 Ark.701,720,120 S.W.3d 525,537 (2003) (internal

citations oniitted). Additionally, we have interpreted the word "shall," to nlean mandatory

and reqtrire mandatory compliancc. See, e.g., Canpbell v. State,31'l Ark. 641,846 S.W.2d

639 (1993); Loydu. 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 ofoffice ofthe

Justices of the Supreme Court shall begin onJanuary I following their election. Accordingly,

here, January 1,2015. Second, the plain language of amendment 80, S 16, provides that

Justices oF thc Supreme Court shall serve eight-year terms. Here, January 1, 2015 -

l)ecembcr 31, 2022. Third, amendment 80, S 13(A), in plarn and unambiguous languagc

provides that i[a Supreme Coun Justrce is disqualified or temporarily unable to serve the

Chief Justice shall certi$, the fact to the Governor lor 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.

Here, based on the plain and unambiguous language of the statute at issue and the

constitutional provisions, the mandatory terms ofArk. Code Ann. $ 21-1-102(a)(1) and the

constitution unequivocally dictate that the justices currently sitting on rhe court shall serve

onWightv. Smith, Case No. CV-14-427. Although Wright withdrew herresponse, she had

previously taken the position that SpecialJustice McCorkindale should remain on the case.

However, such a position would stand in violation of the Arkansas constitution. our

13 cv-15-227

constitution provides for the elected justices of this court to detcrmine pcnding appcals.

Special justrces are tenlporary and their appointments cannot be used to thwart the clcar

language and intent ofour constitution.

Further, in support of our interpretation is this court's holding in Caltlwell's Adm'r v.

Bell €t Craham, 6 Ark. 227 (1845). In Caldwell,the issuc presented was the same as in the

current case: whether a specialjudge, commissioned by the governor, retains constitutional

authoriry when the reason for the appointment expres. ln Caldwell, we held that the special

judgc's comnrission exprred and explained,

The . . . 6th article of the Constitution provides for the appointment ofspecial judgeslor thc trial o[such causes as the regularjudges are disqualified [rom trying by reasono[any o[the disabilities therein enumerated. That provision is designed to prevent a

Failurc or delay ofjustice for want of officers, competent and qualified, to sit for thetrial and determination of such causes, without partialiry or prejudice.

Caldwell,6 Ark. at 233.

This court in Caldwell then questioned, given the purposc of thc 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

answered the same question presented in this case:

Was it intended that a special judge should finally dispose of the causes which hemight be appointed to try, although thc regularjudge who was incompetenr to sit inthe cases should go out of ofEce, and a successor be appointed, and who should inevery respect be qualified to rry rhe causes which the specral judge might beappointed to try? The obvrous reasons for making the provision for such specialappointment induce us to answer in the negative.

ld. at 234 .

The Caldwell court went on to explain its reasoning as follows:

l4 cv-15-227

[Tlhe provision for the appointment of special judges, only in cases whcre the regularjudgcs should bc disqualificcl lor trial thereof under the Constitution, clearly provethat all nratters in controvcrsy were intcnded to be determined by thc regularjudgeswhen no disabihry or disqualification rested upon them; and that, therefore, theconclusion legtinrately follows, thar where the dkability upon the part of the regular judgeshould be removed by a changc oJ the incumbent upon tlxe bench, or otherwise, the reasons Jorthe special appoinunent having rcased, it was intended that the appointment i*ef should cease.

The special judge is only appornted to perform dut'ies which the regular judge is theproper oflicer to perform, but who, for good and suflicient reasons, is deemed by theConstitution an irnproper person to perform them. We are, therefore, clearly of opinion,that the commission of the special judge expires urth the reasons which caused it to be issued,

uhetlur by the resignation, expiration oJ tlrc term oJ seruirc oJ the judge in whose place he was

appointed to act, ot otherwise. The commission of the special judge is but the incident to that oJ

the regular ofrcer and mustJollow dnd expire with its principal[.]

It never was intended that there should be rwo judges, in every respect competentand qualified, under the constitution, to preside in the same court, for the trial anddetermination of the same cause at the same time.

Id. ar 234-35 (emphasis added).

Caldwell supports our intcrpretation of amendment 80.rr Further, decisions

to have been adoptedintcrpreting a provision of an earhcr constitution must be deemed

whcn the same provision is incorporated into a later consritution. Mo. Pac. Transp. Co. u.

Amendment 80 and the language of the 1836Ceorge, 198 Ark. 1110, 133 S.W.2d 37 (1939).

IlOur opinion in Caldwell is consistent with case law from otherjurisdictions. See alsoColes u. Thompson,2T 5.W.46 (Tx. Ct. App. 1894) (holding that the powers of the specialjudge terminate when the disqualified judge had been reg,larly succeeded in ofEce byanotheriudge because the occasion lor the specialjudge's existence had ceased); see also Stateex rel. Johnson u. Judges of circuit court oJ Appeals for Fourth cirtuit,2l So. 520 (La.1897)(holding that under a provision of the constitution, a member of the bar had beenselected to sit in a cause in which the judges o[ the court of Appeals were disquali6edcannot act after one ofthe disqualified judgcs has retired, and his successor has entered onthe duties of the ofEce.)

15 cv-15-221

Constitution are in substance thc same; therefore, Cdldwcll is directly on point.12

Finally, Rulc 1-7, "Practice Absent a Specific Rule," o[ the llules of thc Arkansas

Supreme Court, provides in its entrrery: "ln cases where no provision is made by statute or

other rule, proceedings in the Court shall be in accordance with existrng 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 opportuniry to address the court's per curiam opinion in Nea/ u,

'2The 1836 Constitution provided:

No judge shall preside on the trial of any cause in the event of which he may beinterested, or where either of the parties shall be connectcd with him by affinity orconsanguiniry within such degrees as may be prescribed by law, or in which he mayhave been ofcounsel or have presided in an inferior court, except by consent o[allthe parties. In case all or any of the judges o[ the Supremc Court shall be thusdisqualified from presrding on any cause or causes, the court orjudges thcreofshallcerti6/ the same to the Governor of the State, and he shall in'urrediately commissionspecially the requisite number of nren of law knowledgc for the trial anddetermination thereoL The same course shall be pursued in thc Circuit and otherinlerior courts as prescnbed in chis section for cases in thc Supreme Court. Ark.Const. of 1836, art. VI, S 12.

Amendment 80, SS 12-13 provides:

No Justice orJudge shall preside or parrrcipate in any case in which he or she mightbe interested in the outcome, in which any parry is related to him or her byconsanguinity or afliniry within such degree as prescnbed by law, or in which he orshe may have been counsel or have presided in any inferior court. Ark. Const.amend. 80, $ 12.

If a Supreme Court Justice is disqualified or temporanly unable to serve, rhe ChiefJustice shall ceftiry the fact to the Governor, who within thirry (30) days thereaftershall commission a Special Justice, unless the time is extended by the ChiefJusticeupon a showing by the Govemor that, in spite o[the exercise of diligence, additionaltime is needed. Ark. Const. amend. 80, \ 13(A).

16 cY-15-227

Wilson,321 Ark. 70, 900 S.W.2d 177 (1995). Although not on point, because the decision

was bascd on waiver and no constitutional question was raised or discussed, we address Neal

because it contains a clear misstatcment of thc Iaw. In Nea/, in a Phillips County disbarnrent

proceeding, Janies A. Ncal, Executive Director of the Supreme Court Committec on

Prolessional Conduct, brought suit against Wilson. At the outset of the proceedings, the two

circuit courtjudges in the distnct both recused from the proceeding. Pursuanr to Act 496

of 1965, on February 1.8, 1992, the ChiefJustice assigned CircuitJudge Lance Hanshaw to

thc matter.r-r On March 3, 1993,Judge Hanshaw entered an order dismissing the action and

1t Acr 496 of 1 965 $ 1 provided in pertinent part: "The ChiefJustice of the ArkansasSupreme Court of Arkansas . . . may assign, reassign and modif! assignments ofjudges o[thecircuit court . . . upon a temporary basis."

Acr 496 is now codified at Ark. Code Ann. $ 16-10-101(b)(1) and was in effect when Nealwas dccided:

(b)(1) Under rules prescribed by the Supreme Court, the ChiefJustice may requirercports lront all couns ofthe state and may issue such ordcrs and regulations as maybe necessary lor the elEcient operation of those courrs to ensure the prompt andproper administration ofjustice and may assign, reassign, and modiFy assignments ofcircuit and districtjudges of the circuit court, the chancery court, and the probatecourt to hold, upon a temporary basis, regular or special sessions for the transactionof civil or criminal business within any other such court.

See Act 760 S 1, 1989.

ln 2003, Ark. code Ann. $ 16-10-101(b)(1) was modified by Act 1185 ro remove chanceryand probate courts from the subsection and a portion of the subsection was struck as follows:

(b)(1) Under rules prescribed by the Supreme Courr, the ChietJustice may requirerepons from all courts of the state and may issue such orders and regulations as maybe necessary for the efficient operation of those coufts to

"r1rr.. th. prompt andproper administration orjustice and may assign, reassign, and modifr assignments ofcircuit and distnct judgescutrrrto hold, upon a temporary basis, regular or special scssions for the transaction

17 cv_15_227

on April 18, 1994, we revcrsed. On rcmand, on April 20,1994, Hanshaw requested another

judgc to be assigned to hear the case. On May 3,1994, the ChiefJustrce appointed Circuit

JudgeJohn Lineberger to the matter and noti6ed the parties, the circuitjudges in that district,

and the Phillips Counry Circuit Clerk of the appointment. However, the order was not filed

until Sepcember 14, 1994. In December i994, Wilson moved lor Lineberger's

disqualification, asserting that a new circuitjudge had taken office who had not recused in

the case and that the proceeding automatically revened to the new circuitjudge. OnJanuary

5, 1995,Judge Linebergcr denied Wilson's motion and ultimately set a tnal date forJune 13,

t995.

ln May 1995, Wilson notificd Mr. Neal that the new lstJudicial CircuitJudge, Judge

Olly Neal, had two dates to try Mr. Neal's case. Judge Neal set a heanng; Mr. Neal appeared

and challengedJudge Neal's jurisdiction, asserting thatJudge Lrneberger retainedj urisdictron.

Judge Neal ruled that hc 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

byJudge Olly Neal were void because Judge Lineberger, the appointed judge, maintained

jurisdiction. This court agreed with Mr. Neal and granted the wnt of certiorari. In a per

cunam opinion, with two justices dissenring, the court explained its holding:

Why respondent failed to question Judge Lineberger's assignment earlier is unclear.Regardless, we emphasize rhe fact that the record before this court at the time ofJudge Lineberger's assignmenr reflecrs thar the circuitjudges in the lstJudicial Districthad recused from this casc, and no party had oflered any motion, objection or

o[civil or criminal business within any other such court.

18 cv-1,5-227

information to the contrary. It is the parties' or trial court's responsibility to apprise this court

as to wltetlter an assignmenl is netessary uuler Act 496. Once thdt assignment is made, thatrcsponsibility continues. Clearly, it is not this murt's task, on its own uolition, to distouer or

monilor wlrcther the circumslances have clmnged to warrant the tenninatiott of an asslgnment orreassignment. The mere fact that a ncw circuit judge had been elected in the 1st

Judicial Circuit aftcrJudge Hanshaw's and before Judge Lineberger's assignments didnot, in itself, suggcst the new circuitjudge had not recused lrom trying this case.

Neal,32L Ark. at74-75,900 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 o[a specialjudge would have terminated, or the assignment

of a different special judge would not have becn made. While this supports our conclusion

that a special judge's appointment ends when the reason for the disquali6cation is removed

by the expiration ofthe term ofthe recusingjudge, we cannor agree thar disqualificatron of

the electedjudge is presumed. Rather, a duly electedjudge serves unless thatjudge recuses

or is disqualified. Thus, to the extcnt Nea/ holds otherwise, we overmle it.la

rrAlthough the concumng opinion would not ovemrle Neal, because "Neal hadnothing co do wrth special justices under Amendment 80 or its predecessor or the length ofspecial justices' terms," that positron is fatally flawed. Regardless of whether che NeaJopinion predates the passage of amendmenr 80 in 2000 or the reliance on Ark. Code Ann.S 16-10-101(b)(1), Nea/ is inconsistent with the constitution that was in effect ar rhe rimeofthat decision in 1995 and is a misstatement of our law. Ac the time Nea/ was rendered, ourconstitution, article 7, $ 20, "Disqualification ofjudges - Grounds" provided:

No judge orjusdce shall presrde in the tnal of any cause in the event of which he maybe interested, or where either of the parties shall be connecred with hinr byconsanguiniry or affinity, within such degrees as may be prescnbed by law; or inwhich he may have been ofcounsel or have presided in an infenor court.

1,9 cY-15-221

Finally, here, thc governor exercised his authoriry to appoint Special Justice

McCorkindale to replacc Justice Hoofman, who had recused. Yet, at the end of his temr,

Justice Hoofman was replaced by an elected justice, and Special Justice McCorkindale's

appointment expired. There is no separation-of-powers issr.re. We also note that despite

Chieflustice Hannah's assertion in his recusal letter that addressing thc issue in this case is an

attempt to "by judicial fiat usurp the power of the executive branch," the parties themselves

do not argue a separation-of-powers issue.'5

In sum, the decision to take the question of which justices constitute the court in

Smith u. Wright, Case No. CV-14-427 as a separate casc was made because that appeal cannot

move forward untll this lundamental question has becn resolved. Had this court not taken

action to resolve this fundamental question, the delay in deciding the appeal in Smith u.

Wright, Case No. CV-14-427, would have been intemrinable. As is plain lrom this opinion,

the answer to the question of which justices are to dccidc the primary appeal in Smith u.

Wright is compelled by our constitution and our case law.

Lasr, we must nore 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

In Neal, the circuit judge was not disqualified as required by art. 7, section 22, for anappointment of a specialjudge. Therefore, no appointment was necessary, this court did nothave jurisdiction or authoriry to appoint Judge Lineberger and hkewise this court did nothave junsdiction to void the actions of an elccced circuit court judge, Judge Neal.Accordingly, we must overrule Nea/.

';lndeed, then Governor Mike Beebe's ofEcial appointmenr srates that SpecialJusticeMccorkrndale was appoinced to replace Justice Hoofman on Case No. cv-14-427. Thiscoun's decision in no way usurps the authoriry exercised by then Govemor Beebe inappointing Special Jusrice McCorkindale.

20 cv-15-227

80 by a votc oF 431 ,1,37 to 323, 647 . See amendment 80, Publisher's Notes. Further, in May

2014, thc electors of Arkansas electedJustice llhonda K. Wood to serve an eight-year tcrm

on the Arkansas Supreme Court, commencing on January 1 , 201.5. Thus, thc people of

Arkansas are empowered by our constitutron to elect the justices of this court. Those justiccs

are obhgated to hear and decide all cases in which they have no disquali6cation.

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 denicd.

SpecialJustices BETTY C. DICKEY and SuawN A. WoMACK join.

Special Justice BRETT D. WATSoN concurs.

HANNAH, CJ., and DANIELSoN and Wooo, lJ., not participating.

21 cY-15-227