author: TOM Glaze, Justice.

text:
    JUDICIAL DISCIPLINE and DISABILITY COMMISSION v. Morris W. THOMPSON
    99-1443
    16 S.W.3d 212
    Supreme Court of Arkansas
    Opinion delivered May 10, 2000

      Gill, Elrod, Ragon, Owen, Skinner, & Sherman, P.A., by; Marie-B. Miller, Judy P. McNeil and Chris L. Travis, for petitioner Judicial Discipline & Disability Commission.

      Darrell Brown, for respondent.
   TOM Glaze, Justice.

This case involves an original action brought by ce. Arkansas Judicial Discipline & Disability Commission (Commission) against Judge Morris Thompson, recommending that Thompson be removed from office for having willfully violated the Canons of the Code of Judicial Conduct. When Thompson was elected in November 1992 as Sixth Judicial Circuit Judge, Fifth Division, and took office on January 1, 1993, he was co-counsel representing Jacqueline Ford in a personal injury claim and Ada Gant (and other family members) in a wrongful-death suit. These claims were pending in Louisiana, and Judge Thompson remained involved in these two matters after he was judge. His involvement later led to a complaint being filed against him with the Commission.

During the Commission’s investigation of the Ford and Gant complaint, other possible Code violations unfolded. After considerable discovery and responses were exchanged between the Commission and Judge Thompson, the nine-member Commission directed that three of its members conduct a hearing regarding the formal allegations filed against Judge Thompson, and it instructed the three-member panel to make its findings and recommendations to the full Commission. The hearing commenced on October 20 and ended on October 22, and following the hearing, on November 15, 1999, the panel made its findings and recommendations to the full Commission. The panel determined that convincing evidence showed that Judge Thompson had willfully violated the Canons of the Judicial Code, and had also violated Arkansas statutory law. The panel listed the following violations:

(1) When representing Ford in her personal injury case after January 1, 1993, Judge Thompson willfully violated Canon 4G of the Code by practicing law after he became a full-time judge. The same canon was violated by Judge Thompson when representing Ada Gant and others after January 1, 1993, in their wrongful death litigation.
(2) In connection with Ford’s claim, Ford and Judge Thompson had executed a subrogation agreement with the Southern Council of Industrial Workers (Southern Council) for medical expenses paid on Ford’s behalf, and, contrary to Canons 1 and 2A of the Code, Judge Thompson willfully failed to honor the agreement.
(3) Judge Thompson willfully violated Canons 4A, D, H, and I and Ark. Code Ann. §§ 21-8-203 and -204(b)(1) (R.epl. 1996), by failing to properly file reports of outside income on the financial interest statement required to be filed with the Secretary of State.
(4) Judge Thompson willfully violated Canons 1 and 2A of the Code by writing fifty-nine insufficient checks between 1993 and 1997.
(5) Judge Thompson further violated Canons 1 and 2A by failing to pay his federal income taxes, even though he had received sufficient income to pay them.
(6) Judge Thompson violated Canons 1 and 2A and Ark. Code Ann. § 16-10-410(b)(3) (Repl. 1999), when he violated Ark. Code Ann. § 27-14-306 (Repl. 1994), by placing the license tag belonging to his 1981 Toyota on his Ford pickup truck.

The Commission additionally requests that we consider a seventh point: Whether Judge Thompson violated Rule 1.15 of the Model Rules of Professional Conduct because he deposited client funds in his “operating account,” rather than a “trust account.” Considerable testimony was taken on this point, but no specific mention of it is made in the Commission’s findings. Judge Thompson concedes that we have the authority under Rule 12D of the Rules of Procedure of the Arkansas Judicial Discipline & Disability Commission (1999), to consider whether he violated Rule 1.15, since we are considering his removal. Thus, we will address the Rule 1.15 argument, as well.

On December 9, 1999, the full Commission reviewed the panel’s six findings of fact and its recommendations, and unanimously concluded that the facts were proven by clear and convincing evidence, that Judge Thompson willfully violated Canons 1, 2A, 4A, 4D(2), 4G, 4H, and 41 of the Code, and that such violations were prejudicial to the administration of justice. The Commission further stated that, while some of the offenses and findings, standing alone, may have warranted a lesser sanction, the seriousness of the others, along with the sheer number of violations committed over such a lengthy period of time, left no other alternative than to recommend Judge Thompson’s removal from office.

After the Commission entered its findings and recommendations, it filed them and its record with this court, and the matter was docketed for expedited consideration. See Rule 12 of the Discipline and Disability Rules (1999). The Commission and Judge Thompson have now filed their briefs, participated in oral argument, and the case is submitted to us for decision. Upon review of the entire record, we may accept, reject, or modify, in whole or in part, the Commission’s findings and recommendations. Rule 12E. In short, our standard of review in this matter is one of de novo review, and we will not reverse the Commission’s findings unless they are clearly erroneous. See Ark. R. Civ. P. 52(a); cf. Mays v. Neal, 327 Ark. 302, 938 S.W.2d 830 (1997), and Finch v. Neal, 316 Ark. 530, 873 S.W.2d 519 (1994). In considering the Commission’s findings and recommendations and Judge Thompson’s responses to them, we will review each of the seven violations argued and set out above. Judge Thompson also raises several due process issues regarding the three-member panel, including an evidentiary ruling it made. We will discuss those matters after discussing and deciding the substantive findings.

I. Whether Judge Thompson violated Canon 4G of the Judicial Code by engaging in the practice of law after he assumed the bench on January 1, 1993.

Canon 4G provides that a judge shall not practice law or appear in any court within this state, and the commentary to this Canon notes that the prohibition “refers to the practice of law in a representative capacity under Ark. Const, art. 7, § 25.” However, Judge Thompson relies on the Canon’s language, “shall not practice ... in any court within this State,” and argues this phrase is not defined by the Judicial Code, and he does not fall within its prohibition. He claims that he never appeared as counsel in any court, nor did he practice law within Arkansas. Thompson further cites an Oregon case, In Re Piper, 534 P.2d 159 (Or. 1975), and advisory opinions from Florida, New York, and Kentucky for the proposition that an attorney elected to a judgeship may complete his or her legal work after assuming the bench. While we harbor considerable doubt that the authority cited by Judge Thompson is on all fours with the case here, we need not explore those situations in other jurisdictions because not only does our law specifically prohibit the practice of law by judges, but this court has also defined and decided what is meant by, and is included within, the term “practice of law.” In Undem v. State Board of Law Examiners, 266 Ark. 683, 587 S.W.2d 563 (1979), this court stated the following:

It is quite true that the practice of law is not confined to services by an attorney in a court of justice; it also includes any service of a legal nature rendered outside of courts and unrelated to matters pending in the courts. (Citations omitted.) It is uniformly held that writing and interpreting wills, contracts, trust agreements, and the giving of legal advice in general constitute practicing law. (Emphasis added.)

In concluding that, under Arkansas law, a judge cannot practice law after he is elected to and assumes the bench, we now review the evidence bearing on whether Judge Thompson’s activities after he took office on January 1, 1993, involved the practice of law.

Regarding the Ford case, Judge Thompson served as co-counsel with Brenda Brown, a Louisiana attorney. Thompson submits that he advised Ford concerning settlement, and she accepted a settlement offer in December 1992. He argues that all the work performed after December 1992 was “clerical” and did not fall within the proscription of “practicing law.” The evidence presented to the Commission failed to support Judge Thompson’s claim. For example, between January 4 and 13 of 1993, opposing defense counsel, Bruce M. Mintz, sent Judge Thompson a receipt and release for Ms. Ford and her husband to sign and for Thompson to approve as their attorney; included, too, was a motion and order of dismissal with prejudice which Judge Thompson was requested to approve as one of the Fords’ attorneys. Mintz also enclosed a check dated January 4, 1993, in the amount of $150,000.00. On January 13, 1993, Judge Thompson met with the Fords in his judge’s chambers where they discussed and signed and approved the above documents, and afterwards, Thompson accompanied the Fords when they negotiated the check. On January 19, 1993, Judge Thompson faxed a letter to his Louisiana co-counsel Brenda Brown, confirming their fee arrangement, and the next day he sent Brown a cashier’s check along with a letter, written on his judicial stationery, wherein he directed Brown to approve the order of dismissal and gave her directions on closing the case. Unquestionably, these activities that took place in Arkansas involved legal advice, and the documents identified him as the Fords’ attorney. Judge Thompson’s actions in bringing the Fords’ case to a resolution easily fall within the definition of practicing law, and the Commission’s decision so finding is correct.

When investigating the Ford matter, the Commission discovered Judge Thompson had also continued to represent Ada Gant and other family members concerning their wrongful-death case filed in Louisiana. While Judge Thompson disputes many of the Commission’s allegations and findings that resulted in the Commission’s decision that he willfully violated Canon 4G by continuing to practice law on the Gants’ behalf after January 1, 1993, there is clear and convincing evidence that he did, indeed, represent the Gants as their co-counsel as late as November 1994 — one year and eleven months after being sworn in as a judge.

It is undisputed that, on December 30, 1992, Judge Thompson participated in several depositions involving the Gant case. Thompson and his Louisiana co-counsel Brenda Brown and Pamela Blankenship represented the Gants, and Louisiana attorneys David Nelson and Haynes Harkey represented the defendants. After the depositions ended, the attorneys discussed setdement. After Harkey returned to his office, he claimed, and later testified, that Judge Thompson informed Harkey that he had received “special dispensation” from a “senior judge” that would allow him to finish the Gant case. Harkey further averred that he memorialized that conversation by memorandum to associate defense counsel, Bruce Mintz, in order to summarize what had transpired on the day of the depositions. The Commission apparently believed Harkey’s version of what was said. That being true, since Arkansas’s judicial branch has no trial judge denominated as “senior judge” who could give such dispensation, the Commission could have reasonably concluded that Judge Thompson offered a false cover to give a reason why, as a newly elected judge, he intended to represent the Gants until the conclusion of their case.

Although Judge Thompson urges that he had advised opposing counsel that he would no longer be involved in the case, the evidence undermines that assertion. Judge Thompson testified that he closed his law office in December 1992, and sent his motion to withdraw as an attorney in the Gant case to his co-counsel. Nonetheless, that motion was never filed with the Louisiana court, and the evidence shows that Judge Thompson continued to participate until the Gant case’s conclusion. In fact, the record reflects that legal correspondence and documents concerning the Gant case continued to be exchanged between Judge Thompson, opposing counsel, and the Louisiana court’s clerk between January 1993 through October 1994. Defense counsel Mintz testified that she was sure she did not receive any written or verbal communication that Thompson no longer represented the Gants or Fords after he took the bench. Defense counsel David Nelson also could not recall Judge Thompson saying he was no longer involved in the Gant case.

On March 17, 1993, Mark Ackley, an adjuster for defendant St. Paul Fire & Marine Insurance Company, called Judge Thompson at his judicial office, after Ackley was unable to contact Blankenship; during the call, Ackley and Judge Thompson discussed proposed settlement of the Gant matter. Ackley sent Judge Thompson a fax setting out the settlement terms, and the fax was directed to “Judge Thompson.” Ackley said that, in his conversation with Thompson, Thompson never told him that he could not settle the case; nor did he refer Ackley to another attorney. Ackley said the Gant case was settled on March 24, 1993, and co-counsel Blankenship signed Thompson’s name along with her own on the release documents, which the evidence shows Judge Thompson gave Blankenship authority to do. Thompson signed this signature authorization as “Judge Morris Thompson” and had mailed it to defense attorney Bruce Mintz. Prior to the signing and approval of the March 31 release, Judge Thompson had written and disbursed checks to his clients, but he advised his clients not to negotiate the checks until he received the settlement check and it had cleared his account. These checks were written on Judge Thompson’s “operating account” at Union National Bank. Although Judge Thompson argues he did not deal with these clients and disputes these findings made by the Commission, Thompson’s own testimony concedes their verity when he acknowledged the clients had negotiated checks written on his account. Moreover, the operating account used by Judge Thompson contained the legend, “Morris W. Thompson P.C. Law Firm.”

In April 1993, Judge Thompson received a $150,000 settlement check. He, Blankenship, and their clients endorsed the check, and Judge Thompson deposited the check in his operating account. Judge Thompson paid the court reporters and his co-counsel their expenses and fees, and he also sent a check to the Louisiana court clerk to cover future costs in the Gant lawsuit. The record further reflects that Judge Thompson still had contact with co-counsel Blankenship and opposing counsel Nelson after the March and April activities involving the Gant matter. In this respect, Judge Thompson contacted Blankenship on about twenty occasions between August 14, 1993, and November 4, 1994, and he spoke with defense attorney Nelson on November 29, 1993. As we similarly concluded above regarding the Ford case, we believe the record also amply supports the Commission’s finding that Judge Thompson practiced law when he continued to represent the Gants after he ascended to the bench on January 1, 1993.

Judge Thompson argues that, even if he violated Canon 4G, he did not do so willfully. In short, Judge Thompson submits that he made a good-faith interpretation of Canon 4G, and, in doing so, believed he could finish his law practice after he took office. He urged before the Commission, and argues here, that he reached the opinion that he could perform clerical activities in order to complete his law practice. However, as we have already concluded, our review of the work he performed revealed he was performing more than ministerial or clerical acts, but instead, his actions constituted the active practice of law, which is clearly prohibited under Ark. Const, art. 7, § 25, and Canon 4G. In addition, we cannot ignore the testimony of opposing counsel Haynes Harkey, who said Judge Thompson had received “special dispensation” from a “senior judge” who allowed him to finish the Gant case. The Commission had the right to believe Harkey’s testimony as being true, and because no such dispensation procedure is permitted in Arkansas, it could further reasonably infer that Judge Thompson’s false statement to Harkey was offered to explain or justify his unlawful practice of law.

II. Whether Judge Thompson violated Canons 1 and 2A by failing to honor the subrogation contract he and Ms. Ford executed with the Southern Council of Industrial Workers.

Canon 1 and 2A of the Code of Judicial Conduct read as follows:

Canon 1. A judge shall uphold the integrity and independence of the judiciary.
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.
Canon 2. A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

During his representation of Ms. Ford, both Judge Thompson and Ford executed a subrogation agreement with Southern Council on September 3, 1991, whereby the Council paid for the medical treatment or services Ford incurred. These monies were paid from the Council’s Industrial Workers Health and Welfare Fund, and Judge Thompson and Ford agreed to reimburse the fund for any recovery. As already mentioned above, Judge Thompson settled Ford’s claim in December 1992 and January 1993 for $150,000.00, but neither Judge Thompson nor Ford reimbursed Southern Council’s fund. In fact, Judge Thompson kept $50,000.00 of the recovery as attorney’s fees. Southern Council filed suit in federal court against Judge Thompson and Ford, and it obtained a judgment in the amount of $29,971.00. The federal court ruled that Judge Thompson had intentionally exercised control over funds inconsistent with Southern Council’s rights and held that he converted the Council’s funds. Judge Thompson did not appeal that determination, but instead argued that, in defending against Southern Council’s lawsuit, he had simply believed that the obligation owed Southern Council belonged to Ford, not him. However, such an explanation fails to explain how he could have avoided responsibility for the debt when he joined in signing the agreement to reimburse the Council. Nor does Judge Thompson satisfactorily address and rebut the federal court’s decision finding a knowing conversion on his part, which was not appealed. Based on this evidence, we are unable to say the Commission was clearly erroneous in finding Judge Thompson violated Canons 1 and 2A.

III. Whether Judge Thompson willfully violated Canon 4 of the Code of Judicial Conduct and Ark. Code Ann. §§ 21-8-203 and -204(b)(1) (Repl. 1996), by failing to properly report his outside income and financial interests to the clerk of the Arkansas Supreme Court and the Secretary of State.

Canon 4H(2) provides as follows:

(2) Public Reports. A judge shall report the date, place and nature of any activity for which the judge received compensation, and the name of the payor and the amount of compensation so received. The judge’s report shall be made at least annually and shall be filed as a public document in the office of the Clerk of the Supreme Court.

The commentary to Canon 41 refers to the foregoing canon, stating in pertinent part that Section H requires a judge to report all compensation the judge receives for activities outside judicial office. The Commission found, and Judge Thompson does not dispute, that Judge Thompson did not report or list the attorney’s fees he received in 1993 from the Ford and Gant settlements, nor did he list the following attorney’s fees or income he received in 1993 from other attorneys or clients: Marvin L. Harris (approximately $8,431.00), Woodson Walker referral fees ($4,956.96), Willard Proctor referral fees ($3,865.68), and income from Willard Proctor from the Fred Douglas Trust ($4,596.56).

The Commission further found Judge Thompson failed to report other outside income he received between January and December of 1994; that compensation was the following:

(1) Attorney’s fees received from James Rhodes in the amount of $4,586.00.
(2) Attorney’s fees received from Willard Proctor in the amounts of $2,016.00, $6,060.25, and $6,849.31.
(3) Attorney’s fees from the Arkansas Municipal League in the sum of $5,400.00.
(4) Attorney’s fee from the Needham, Johnson, Lovelace, and Johnson Law Firm in Texas in the amount of $160,000.00.

The Commission finally concluded on this point that Judge Thompson failed to file any outside-income report with this court’s clerk in 1996, nor did he file a statement of financial interest with the Secretary of State in 1996 as required by Ark. Code Ann. §§ 21-8-203 and -204 (Repl. 1996). Section 21-8-203 emphasizes the purpose of disclosure-of-income requirements, providing such reports are essential to the efficient operation of government and to minimize the opportunities for conflicts of interest. Ark. Code Ann. § 21-8-202 (Repl. 1996) imposes a fine of up to $500.00 for the failure to file an income report and designates the violation of §§ 21-8-203 and -204 to be a misdemeanor.

While Judge Thompson seems to argue that Canon 4H’s reporting requirements are ambiguous, we believe they are quite clear — a judge shall, at least annually, report the date, place and nature of any activity for which he or she received compensation and report the amount and the person who paid the compensation. The preamble of the Judicial Code instructs that when the Code uses “shall” or “shall not,” it is intended to impose binding obligations, the violation of which can result in disciplinary action. Fifing such information allows interested persons and the public to have knowledge concerning whether a judge has any conflicts of interest when the judge conducts judicial business. Although Judge Thompson refers us to a Michigan State Bar advisory opinion that suggests a new judge need not disclose payments from his or her former law firm, so long as the payments are made with respect to work done when the judge was still in practice, such is not legal precedent, but more importantly, the opinion, as set out, is wholly inconsistent with the language and purposes of Canon 4H adopted by our court and the Arkansas law embodied in §§ 21-8-203 and - 204.

IV. Whether Judge Thompson violated Canons 1 and 2A of the Code of Judicial Conduct, by issuing insufficient checks on his operating account for the purchase of goods, services, and the payment of debts.

Judge Thompson argues that, while he did not watch his account as closely as would have been prudent, he only had twenty-one checks returned as insufficient. He also asserts that, contrary to the Commission’s finding, he had overdraft protection.

First, in reviewing the record, we readjudge Thompson’s own testimony where he admitted on direct examination that fifty-nine checks had been returned to him as insufficient between 1993 and 1997. He also agreed that his ability to sit on cases involving “hot checks” had been compromised. Second, although he claims to have had overdraft protection, bank officials disagreed. Obviously, the best proof on this point is that fifty-nine checks were returned insufficient over a five-year period, and no overdraft protection was extended to make those checks good. Third, other evidence presented to the Commission showed what could be labeled a willfulness on Judge Thompson’s part in failing to satisfy those businesses that received his insufficient checks. For example, he gave a check to Pop-a-Top Liquor in the amount of $15.16 which was returned for insufficient funds. The store owner said that he tried to contact Judge Thompson by telephone and mail, but received no response until the store contacted the prosecuting attorney, seeking an arrest warrant. Judge Thompson paid the debt only after the prosecuting attorney’s office contacted him. In addition, Judge Thompson wrote an insufficient check to Sam’s Wholesale Club for the amount of $317.29. A Sam’s representative averred the store called Judge Thompson’s home number four times and got no answer. The last two calls revealed Judge Thompson’s phone had been disconnected, so Sam’s sought an arrest warrant, and like the case with Pop-a-Top, Judge Thompson paid only after the prosecuting attorney’s office notified him that an affidavit for an arrest warrant had been filed.

Although judges should be independent, they must comply with the law, including the provisions of Arkansas’s Judicial Code. See commentary to Canon 1. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility, and conversely, violation of the law and the Code diminishes public confidence in the judiciary and thereby does injury to the system of government by law. Again, we conclude the record before us supports the Commission’s findings showing Judge Thompson violated the Code by his issuing insufficient checks as described above. Cf. Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999) (where Officer Smith admitted he wrote checks to merchants without knowing how much money was in his account at the time, that he received notice of the returned checks, and that he failed to rectify the wrongs suffered by the merchants without judicial intervention, the Commission’s termination of Smith was supported by substantial evidence).

V. Whether Judge Thompson violated Canons 1 and 2A of the Code of Judicial Conduct, by failing to pay his 1994 federal personal income tax.

The Commission found that, on October 28, 1996, Judge Thompson was assessed $86,936.91 as delinquent federal income tax for the year ending 1994, and the Internal Revenue Service filed a notice of Federal Tax Lien on Judge Thompson and his wife. The Commission found Judge Thompson’s failure to pay his income taxes violated the Code because he had the money in 1994 to pay the taxes, but chose not to do so. In support of its findings, the Commission found Judge Thompson had received a referral fee in 1994 in the amount of $160,000.00 but placed $100,000.00 in a Merrill Lynch account and used the balance to pay other debts rather than his taxes.

Judge Thompson’s sole response on appeal is that he made his decision to utilize his resources to pay off “old pressing financial obligations” and to pay his tax obligation by installment. On this point, Judge Thompson would be correct, at least to the extent that, if he had insufficient funds to pay all his debts, he should be able to schedule the best debt-payment plan he could. However, Thompson does little in the way of argument to point to evidence that rebuts the Commission’s findings that he had sufficient funds to pay his 1994 taxes. It is especially noteworthy that Judge Thompson had $100,000.00 to put in a Merrill lynch account. In reviewing his testimony before the Commission, Judge Thompson merely said that, when he told the IRS of his assets and liabilities, he “imagined” the IRS knew he had the account. While this non-payment of federal income tax issue is a close one, we are not inclined to set aside the Commission’s findings that Thompson’s conduct violated Canons 1 and 2A. We do note at this stage that, if this issue was the only violation before us, it would not be one that would invoke a sanction for removal from office.

VI. Whether Judge Thompson violated Canons 1 and 2A, by operating a motor vehicle with a fictitious license plate tag.

On June 18, 1997, Judge Thompson was stopped by the police and given a citation for exhibiting a fictitious license plate tag in violation of Ark. Code Ann. § 27-14-306 (Repl. 1994), a misdemeanor. Judge Thompson admitted he placed a license plate tag from a 1981 Toyota on his 1982 Ford pickup truck. However, he said that he was restoring the truck and only drove it to the mechanic shops or garages for needed work. While Judge Thompson urges that he made no attempt to deceive anyone concerning his judicial status, the purpose for attaching the fictitious license tag was to mislead law enforcement officers to believe the truck was properly registered. Such misconduct on Judge Thompson’s part clearly violated Canons 1 and 2A.

VII. Whether Judge Thompson violated Rule 1.15 of the Model Rules of Professional Conduct, by depositing client funds in a personal account rather than an identifiable trust account.

While the Commission did not directly consider this issue, both Judge Thompson and the Commission agree we can do so when considering the removal of a judge. Rule 12D of the Judicial Discipline and Disability Rules provides as follows:

D. Scope of Discipline. The Supreme Court, when considering removal of a judge, shall determine whether discipline as a lawyer also is warranted. If removal is deemed appropriate, the court shall notify the judge, the Commission and the Supreme Court Committee on Professional Conduct and give each an opportunity to be heard on the issue of the imposition of lawyer discipline.

Model Rule 1.15 is the rule we are asked to consider, and it reads in pertinent part as follows:

(a) All lawyers shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.
(1) Funds of a client shall be deposited and maintained in one or more identifiable trust accounts in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. The lawyer or law firm may not deposit funds belonging to the lawyer or law firm in any account designated as the trust account, other than the amount necessary to cover bank charges, or comply with the minimum balance required for the waiver of bank charges.

It is undisputed that, sometime after January 1993, Judge Thompson allowed his attorney’s trust account to elapse, but he maintained a personal or what he specifically referred to as an “operating account” in order to “clean up” his debts.

In handling the Ford and Gant settlements, Judge Thompson conceded that he deposited the settlement checks or drafts in his operating account, and disbursed checks to his clients. However, Judge Thompson suggested his failure to use a trust account to deposit the Ford and Gant funds was not his usual practice, and he only did so to complete his prior law business. On cross examination, however, Judge Thompson was shown a number of checks made out to him and other clients prior to when he took office. The checks bore the names of Bertha Chambers, Vivian Lamini, Gertie Mason, Irma Reshada, Diana Cross, and Diana Brickman, and he admitted those checks were deposited in his operating account and he had “technically” commingled his clients’ monies with his. Based on this evidence and Judge Thompson’s admissions, we must conclude that he violated Model Rule 1.15, and such violation will be considered by this court in the Commission’s recommendation to remove Judge Thompson from office.

We have thoroughly discussed and decided the seven findings and Code violations the Commission has made, but before we address the Commission’s recommendation bearing on Judge Thompson’s removal, we must consider Thompson’s due process arguments.

Thompson first contends that his due process rights were violated because his discipline hearing was held before a three-person panel rather than the full nine-member Commission. Citing Mathews v. Eldridge, 424 U.S. 319 (1976), he argues generally that procedural due process requires a hearing before an impartial decision maker be provided at a meaningful time and in a meaningful manner, prior to a governmental decision which deprives individuals of a liberty or property interest. He suggests that he was not offered a fair opportunity to be heard at a meaningful time or manner because all nine members did not hear the evidence first hand. He also claims he was somehow prejudiced because five of the nine Commission members, due to their term expirations, had departed the Commission, so their replacements on the Commission (when the Commission made its final findings and recommendations) were not present earlier when the probable cause and factfinding hearing rulings were made. In other words, Thompson says he was denied a fair and meaningful hearing because the five new commissioners were not privy to all of the proceedings that previously had transpired in his case.

The Commission rejoins by stating Judge Thompson has no protected property interest in the judicial office he holds, so due process is not an issue. Although we do not totally agree with the Commission’s response, we do agree that neither Judge Thompson nor the Commission offers sufficient citation of legal authority or convincing argument for us to decide this question. See Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000); Ellis v. Price, 337 Ark. 542, 990 SW.2d 543 (1999). In oral argument, Judge Thompson agreed that he had no legal authority suggesting the three-member panel hearing utilized by the Commission in any way violated procedural due process. We are not inclined to delve into this legal issue without briefs and argument that better develop this issue.

Suffice it to say, Rule 11C provides for a formal disciplinary hearing before the full Commission, or a three-member panel as a factfinder, and Rule 11D states that the proceeding shall be recorded verbatim. If a panel conducts the hearing, it must submit its findings and recommendations, together with the record and transcript to the full Commission. See Rule 11D and F of the Discipline and Disability Rules. And when the panel is the factfinder, the full Commission may make findings of fact independent from those offered by the panel. Id. at F. Such procedure ensures that the full Commission has before it all of the record of the formal proceedings, and each member is reserved the power to review the disciplinary proceeding and reach findings separate from those made by the panel.

Judge Thompson next asserts that his due process rights were violated when the Commission considered allegations that were not part of the formal statement of charges. He argues that, after his probable cause hearing, the Commission dismissed several evidentiary issues later utilized to support some of the Commission’s findings and recommendations. However, he fails to show when or where in the record these dismissals appear, and we are unable to find them through our independent search. In short, Judge Thompson has failed to preserve this argument. See Western Foods, Inc. v. Weiss, 338 Ark. 140, 992 S.W.2d 100 (1999); Brown v. Arkansas State (HFACR) Licensing Bd., 336 Ark. 34, 984 S.W.2d 402 (1999). However, even if the record reflected such dismissals, he has not shown how they would have prejudiced his case, since other evidence presented to the Commission amply supports the Commission’s findings.

Judge Thompson’s final due process argument is that Circuit Court Judge David Bogard and all other circuit court judges serving in the Sixth Judicial Circuit had disqualified themselves when they were requested to preside on earlier cases involving Judge Thompson. One case was about four years ago and involved a wholly different matter than the case now before us. The second case was filed by Judge Thompson to prevent the Commission’s discovery requests during its investigation of Thompson which led to the filing of the disciplinary proceeding now before us. Judge Bogard was appointed to the Commission after these earlier cases, but when Judge Bogard and the two other Commission panel members commenced the formal discipline hearing in this matter, Judge Thompson raised the possibility of Judge Bogard’s disqualification. He suggested to Judge Bogard that, since Bogard had previously recused in other cases involving Judge Thompson, he might wish to do so in this proceeding. Judge Bogard rejected Judge Thompson’s suggestion, stating that, in the earlier situations, he merely felt uncomfortable in sitting as a presiding judge on a friend’s and co-worker’s case, and Judge Bogard considered Judge Thompson both. In retrospect, Judge Bogard said that he “might not have disqualified,” because his earlier recusals were not ones based on a feeling that he could not be impartial or unbiased. Judge Bogard posited that, unless the Commission had some concern over his prior favorable relationship with Judge Thompson, Bogard believed that he could be fair to both parties. The Commission offered no objections.

Judge Thompson cites Canon 3E(1) of the Code of Judicial Conduct which in relevant part provides that a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. Judge Thompson argues simply that Judge Bogard’s prior recusals called Judge Bogard’s impartiality into question; therefore, he should be disqualified.

This court has held that, in cases where judges have been asked to disqualify, judges are presumed to be impartial, and the person seeking disqualification bears a substantial burden in proving otherwise. See Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998); Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996). We have further held that the decision to recuse is within the trial judge’s discretion, and it will not be reversed absent abuse. Here, Judge Bogard took the time to explain why he had previously recused from sitting on prior matters involving Judge Thompson, that those reasons did not include any bias or impartiality he had towards Judge Thompson, and that he had a fair and open mind and heart that would permit him to participate as a panel member in the case. After Judge Bogard’s declarations, Judge Thompson presented no evidence to show or prove bias on Judge Bogard’s part or that Judge Bogard in any way abused his discretion in deciding not to recuse. Thus, we uphold Judge Bogard’s ruling on this issue.

In disposing of Judge Thompson’s due process arguments, we turn finally to Judge Thompson’s last separate point where he asserts that the three-member panel erred by allowing Denny Reynaud, the Commission’s investigator, to testify to what Judge Thompson argues was inadmissible hearsay evidence.

The Commission called Reynaud as a witness, and he began his testimony by saying the Commission had received a letter from an attorney named Mary Thomason, who alleged that Judge Thompson was practicing law without a license. Thomason represented Mrs. Ford in the federal lawsuit in which Southern Council sued Ford and Judge Thompson, as co-defendants, alleging they failed to honor their subrogation agreement. Judge Thompson objected to Reynaud’s reference to Thomason’s statements as being hearsay and that such testimony prejudiced Judge Thompson by attempting to use Reynaud’s testimony to prove the matters asserted by Thomason. We do not agree. The Commission offered Reynaud’s testimony to show only that it was Thomason’s letter that caused the Commission to initiate an investigation into whether Judge Thompson represented Ford before and after he assumed the bench. The panel correcdy overruled Judge Thompson’s objection, since, contrary to Thompson’s assertion, the Commission did not offer Thomason’s letter or statements to prove Judge Thompson was practicing law improperly, but instead to show why it initiated an investigation into whether Judge Thompson was improperly practicing law. Wal-Mart Stores, Inc. v. Dolph, 308 Ark. 439, 825 S.W.2d 810 (1992); see also Ark. R. Evid. 801(c) (1999). As fully discussed above, Judge Thompson did unlawfully practice law not only by representing Ms. Ford, but also by representing Gant and others as well.

In conclusion, we now consider the Commission’s recommendation that Judge Thompson’s Code infractions compel his removal from office. The Commission stated its recommendation as follows:

While some of the offenses set forth above may have warranted a lesser sanction as an isolated event, the seriousness of some of the other offenses as well as the sheer number of violations committed over such a lengthy period of time, leave no other alternative than to recommend to the Supreme Court of Arkansas that Respondent, Morris W Thompson, be removed from office as Circuit Judge of the Sixth Judicial Circuit, Fifth Division, of the State of Arkansas.

In our de novo review as set out above, we have emphasized that evidence which convincingly proved Judge Thompson had violated the Judicial Code, the Arkansas Constitution, and Arkansas statutory laws. Judge Thompson, on the other hand, has repeatedly taken the position that he made a good-faith and reasonable interpretation of these controlling canons and laws, and his interpretations negated any suggestions that he violated these provisions “willfully.” Consequently, Judge Thompson argues we should reject the Commission’s recommendation for his removal from office. Alternatively, he urges the imposition of the lesser sanction of reprimand.

Much of Judge Thompson’s argument is disturbing and somewhat difficult to follow. While he denies any willful or intentional violation of the canons or laws, the record clearly shows he knowingly violated misdemeanor laws when he utilized fictitious license tags to his personal advantage and caused the prosecuting attorney’s office to persuade him to pay insufficient checks. Also, while he claims his good faith attempt to comply with other Code violations with which he was charged, the evidence clearly undermines such argument. As previously stated, Arkansas constitutional law prohibits judges from “practicing law,” and Arkansas case law has clearly defined that term to include the actions taken by Judge Thompson in this case. Nonetheless, Judge Thompson never sought legal advice on this point, but instead followed his own favorable view of the law. In doing so, he not only continued to represent clients, he also conveyed an erroneous explanation to an opposing counsel that he had received special dispensation from a senior judge to finalize his law practice. It is fair to say that each time Judge Thompson had a question regarding the canons or law, he held his own counsel and decided that his actions were' lawful or permissible in the circumstances. As pointed out earlier, when the text of the Judicial Code uses “shall” or “shall not,” it is intended to impose “binding obligations.” However, when Judge Thompson was confronted with Canon 4’s mandate that he file a public report listing compensation from extra-judicial activities, he rejected its application to his special circumstance. Finally, we note Judge Thompson offered a self-serving interpretation of why he refused to honor his and his client’s subrogation agreement with Southern Council, but that interpretation totally ignores the federal judge’s decision that Judge Thompson knowingly converted the Council’s funds and the fact that no appeal was taken from that decision.

We believe the Commission’s recommendation that Judge Thompson should be removed is the right one. It is not unlike the decision handed down recently in Disciplinary Proceedings Against Anderson, 981 P.2d 426 (Wash. 1999). There, the Supreme Court of Washington, in determining the appropriate sanction for judicial misconduct, considered the following:

(a) whether the misconduct is an isolated instance or evidenced a pattern of conduct;
(b) the nature, extent and frequency of occurrence of the acts of misconduct;
(c) whether the misconduct occurred in or out of the courtroom;
(d) whether the misconduct occurred in the judge’s official capacity or in his private life;
(e) whether the judge has acknowledged or recognized that the acts occurred;
(f) whether the judge has evidenced an effort to change or modify his conduct;
(g) the length of time of service on the bench;
(h) whether there have been prior complaints about this judge;
(i) the effect the misconduct has upon the integrity of and respect for the judiciary; and
(j) the extent to which the judge exploited his position to satisfy his personal desires.

In concluding its review of Judge Anderson’s case, the Washington Supreme Court ordered his removal for (1) continuing to serve as president of three corporations for ten months after being sworn in as judge, (2) continuing to participate in the sale of a business belonging to the estate of a deceased client, (3) and failing to report loan payments on his vehicle made by a personal friend to whom the business had been sold.

Once again, the record reflects that Judge Thompson, in each circumstance involved, relied on his own legal interpretation of the canon and law involved, and without exception, he chose the option which benefited or was most favorable to him. Even at this stage, Judge Thompson fails to accept responsibility for those acts that conflicted with any of the canons or laws in issue. The preamble of the Judicial Code undergirds and compels this court to establish a high standard when reviewing a judge’s misconduct and to ensure its fair and uniform compliance. The preamble in relevant part provides the following:

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.
* * *
The text of the Canons and Sections is intended to govern conduct of judges and to be binding upon them. It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system.
The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct of judges. They should also be governed in their judicial and personal conduct by general ethical standards. The Code is intended, however, to state basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.

For these reasons, we hereby order Judge Thompson’s removal from office. Pursuant to Rule 12D of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission, we also forward a copy of this opinion to the Supreme Court Committee on Professional Conduct for a hearing on the issue of imposition of lawyer discipline.

IMBER, J., not participating.

       One Commission member joined in the Commission’s recommendation that Judge Thompson should be removed, but stated that, while the Commission member agreed that all the violations had occurred, he did not believe Judge Thompson’s failure to honor Southern Council’s subrogation agreement or his failure to pay his federal income tax violated Canons 1 and 2A.

       An individual amicus, who is an elector residing in the sub-district from which Judge Thompson was elected, filed a brief in this appeal. The amicus brief does not address the findings or arguments raised, but appears largely to caution or remind the court that any decision that displaces an elected judge will impact innocent parties (voters). The amicus brief also alludes to the consent decree entered in the federal district court case, Hunt u. State, No. PB-C-89-406 (E.D. Ark. 1991).

       We note the commentary mistakenly refers to art. 7, § 24. It is art. 7, § 25 which provides that judges of the supreme, circuit, or chancery courts shall not, during their continuance in office, practice law or appear as counsel in any court, State or Federal, within this State.

       Co-counsel Pamela Blankenship stated that she did not file Judge Thompson’s motion because she thought it would disrupt negotiations. Blankenship did discharge her other co-counsel, Brenda Brown, in the Gant case.

       Judge Thompson’s failure to comply with Model Rule 1.15 comes within Canon 2A, especially since he violated the Arkansas Constitution and Canons when he continued to practice law after he ascended to the bench. Accordingly, Judge Thompson’s and the Commission’s agreement to consider this issue on appeal is appropriate.

       Besides his ability to seek legal advice from counsel, Judge Thompson also could have requested advice from the Judicial Ethics Advisory Committee under Section 5 of Act 791 of 1991.

       In ordering Judge Anderson’s removal, the Washington court actually rejected the recommendation of the Washington Commission on Judicial Conduct that the judge be censured and suspended without pay for four months.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roy Don TESTER v. STATE of Arkansas
    CR 00-409
    16 S.W.3d 227
    Supreme Court of Arkansas
    Opinion delivered May 10, 2000

      James Dunham, for appellant.
    No response.
   PER CURIAM.

James Dunham, a state-salaried, part-time public defender for the Fifth Judicial District, was appointed by the trial court to represent appellant Roy Don Tester, an indigent defendant, in this criminal case. Following a jury trial that concluded on September 2, 1999, Tester was convicted of first-degree murder and capital murder and sentenced to two terms of life imprisonment in the Arkansas Department of Correction. A notice of appeal from the judgment of conviction was timely filed and the record has been lodged with our clerk.

Mr. Dunham now asks this court to relieve him as counsel for Tester and to appoint new counsel for Tester in this criminal appeal. In support of his motion to be relieved, Mr. Dunham asserts that he will not be compensated by the Arkansas Public Defender Commission for work performed in the appeal of this matter. Fie further asserts that he is ineligible for compensation by this court pursuant to our recent opinion in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). Under these circumstances, we grant Mr. Dunham’s motion to be relieved for good cause shown. Mr. Mark M. Henry will be substituted as attorney for appellant Roy Don Tester in this matter.


author: ROBERT L. Brown, Justice. W.H. “Dub” Arnold, Chief Justice, LAVENSKI R. SMITH, Justice,

text:
    Jimmie L. WILSON v. James A. NEAL
    99-103
    16 S.W.3d 228
    Supreme Court of Arkansas
    Opinion delivered May 11, 2000
    [Petition for rehearing denied June 29, 2000.]

      John B. Plegge, Judge;

      George Hairston; Roy C. Lewellen; and Wilson & Valley, by: E. Dion Wilson, for appellant.

      Robert J. Donovan, for appellee.
   ROBERT L. Brown, Justice.

This case involves the discipline ce. attorney, appellant Jimmie L. Wilson, where a majority of justices has been unable to agree on a single ground for reversal on the core issue of the proper sanction. Thus, the decision of the circuit judge is affirmed, and the opinions of this court have no precedential value.

The circuit judge determined that Mr. Wilson should be suspended from the practice of law for five years with credit given for the time he was previously disbarred from practice by this court. Two issues have been raised by Mr. Wilson in his appeal: (1) the circuit judge erred in failing to recuse in this matter; and (2) the five-year suspension ordered by the circuit judge exceeded the permissible sanction under our rules. Appellee James A. Neal as executive director of the Supreme Court Committee on Professional Conduct has cross-appealed on the basis that disbarment is the appropriate sanction. On two of the three issues, a majority of the court agrees. All seven justices agree that the circuit judge’s decision not to recuse was not an abuse of discretion. Justice Brown, Justice Imber, Justice Thornton, Justice Smith, and Special Justice Burnett agree that the circuit judge’s denial of disbarment should be affirmed.

As already stated, a majority of the court does not agree on the appropriate sanction for Mr. Wilson. Justice Thornton, Justice Smith, and Special Justice Burnett conclude that the circuit judge was limited to a one-year suspension under the Procedures then in effect with credit given for the period when Mr. Wilson was precluded from practicing law. Justice Brown and Justice Imber agree with the circuit judge that a five-year suspension is appropriate with credit given for the period when Mr. Wilson was precluded from practicing law. Chief Justice Arnold and Special Justice Shell conclude that disbarment is the appropriate sanction. Because a majority does not agree to reverse or modify the sanction imposed by the circuit judge, his decision is affirmed.

The opinion by Justice Brown affirming the circuit judge on . all three issues is presented first followed by the opinion of Justice Smith in favor of a one-year suspension and the opinion of Chief Justice Arnold in favor of disbarment.

The conduct of Mr. Wilson at issue occurred almost twenty years ago. Disbarment proceedings have been ongoing for ten years. This is the fifth appeal we have had in the case. See Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998) (Wilson IV); Wilson v. Neal, 329 Ark. 125, 947 S.W.2d 338 (1997) (Wilson III) (per curiam); Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995) (Wilson II) (per curiam); Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994) (Wilson I); see also Neal v. Wilson, 112 F.3d 351 (8th Cir. 1997) and Neal v. Wilson, 920 F.Supp. 976 (E.D. Ark. 1996). In Wilson I, we reversed the circuit judge who had found that Mr. Wilson’s disbarment was barred by the statute of limitations, and we remanded for further proceedings. In Wilson II, we granted a writ of certiorari and held that then circuit judge Oily Neal lacked the authority to sanction Mr. Wilson because a special circuit judge had been assigned to hear the case. In Wilson III, we denied Mr. Wilson’s mandamus petition to include the federal record as part of his disbarment appeal. In Wilson IV, we reversed the disbarment order of the circuit judge and remanded the matter to that judge for him to consider the aggravating and mitigating standards of the American Bar Association in deciding the appropriate sanction.

The genesis of this matter was a disbarment complaint filed by the Arkansas Committee on Professional Conduct (“Committee”) on October 9, 1991, after Mr. Wilson pled guilty to five misdemeanor offenses in federal district court as a result of a plea bargain with the United States Attorney. The criminal conduct involved had occurred ten years earlier in 1981 and 1982. The guilty pleas took place on August 22, 1990. Mr. Wilson pled guilty to three counts of violating 18 U.S.C. § 658 by “knowingly” disposing of soybeans and rice that were mortgaged and pledged to the FmHA, and two counts of violating 18 U.S.C. § 641 by “knowingly” taking money from a Department of Agriculture bank account and using it for unapproved purposes. In 1985, the United States District Court suspended his license to practice law in the federal courts pending final resolution of any disciplinary action against him by the Committee and by this court. As a result of his guilty pleas, he served four and one-half months in federal prison.

This court affirmed the fact that Mr. Wilson violated Rule 8.4(b) of the Model Rules of Professional Conduct in Wilson IV. There, we held:

Although all five crimes were misdemeanors, we agree with the trial court that these convictions involved dishonesty and a breach of trust, and seriously undermined “the confidence of the public in our legal profession.” See In Re Lee, 305 Ark. 196, 806 S.W.2d 382 (1991). Because we have no hesitation in holding that Wilson’s convictions reflected adversely on Wilson’s fitness to practice law, we affirm the trial court’s finding that Wilson violated Model Rule 8.4(b).

332 Ark. at 161, 964 S.W.2d at 205-206. However, with regard to the appropriate sanction we concluded that the circuit judge had erred in finding that a violation of Model Rule 8.4(b) automatically required disbarment. We directed the circuit judge to evaluate and weigh certain aggravating and mitigating standards adopted by the American Bar Association in deciding the proper sanction. On remand, the circuit judge ordered that Mr. Wilson be suspended from the practice of law for five years, but he made no findings on specific aggravators and mitigators. This five-year suspension is the sanction before us in this appeal, as is the Committee’s cross-appeal for disbarment.

I. Recusal

The pleadings filed subsequent to remand included a motion by Mr. Wilson to the circuit judge requesting that the judge recuse because of bias. He asserts that in the proceedings prior to the last appeal, the circuit judge showed that he had no intention of adjudicating sanctions, and that he was committed to disbarment. Mr. Wilson asserts that the judge’s promise of a sanction hearing in the proceedings prior to his last appeal, and his failure to provide one in the prior proceedings, showed a predisposition to refuse to adjudicate sanctions, and that the judge’s additional conclusion ia his decision in the prior proceedings that the undisputed facts dictated disbarment, showed that the judge intended to disbar Mr. Wilson regardless of law or fact.

Mr. Wilson also argues that comments by the circuit judge in his decision on the motion to recuse, and in his discussion on the motion for reconsideration, further show that the judge’s prejudice remained unchanged and that a severe sanction was certain. He asserts that the order denying the recusal motion exhibits overt bias when the judge stated he took “umbrage” at the suggestion Mr. Wilson had been deprived of earning a living for two years. Mr. Wilson also cites as error a discussion between the judge and counsel on the day of the sanction hearing, when the motion for reconsideration was discussed. In response, the judge stated the word “umbrage” was intended to convey his disappointment at the allegation that Mr. Wilson had been deprived of making a living by the judge rather than as a personal insult.

There is a presumption of impartiality on the part of judges. Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998). Moreover, the decision to recuse is within the trial court’s discretion and will not be reversed absent abuse. Trimble v. State, 336 Ark. 437, 986 S.W.2d 392 (1999). The question of bias is usually confined to the conscience of the judge. Black v. Van Steenwyk, supra; Dolphin v. Wilson, 328 Ark. 1, 942 S.W.2d 815 (1997). An abuse of discretion can be shown by proving bias or prejudice. Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999); Trimble v. State, supra. To decide whether there was an abuse of discretion, we review the record to see if any prejudice or bias was exhibited. Black v. Van Steenwyk, supra; Dolphin v. Wilson, supra. There is a duty not to recuse where no prejudice exists. Massongill v. County of Scott, supra; U.S. Term Limits, Inc. v. Hill, 315 Ark. 685, 870 S.W.2d 383 (1994); Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993). The party seeking disqualification bears the burden of proving bias or prejudice. Trimble v. State, supra; Dolphin v. Wilson, supra; Noland v. Noland, 326 Ark. 617, 932 S.W.2d 341 (1996).

In the instant case, following remand the circuit judge appeared to hear the evidence presented in an impartial manner, giving each side full opportunity to address the issues. The judge acknowledged that Mr. Wilson was an officer of the court and spoke positively of his achievements. While the judge’s use of the word “umbrage” in its written order denying recusal may not have been the best choice of words, it in no wise was prejudicial or exhibited bias. Moreover, Mr. Wilson cites no example of bias at the hearing, and thus he demonstrates no prejudice. In the absence of a showing of prejudice, we hold that the circuit judge did not abuse his discretion in declining to recuse.

II. The Sanction

As already noted, Mr. Wilson violated Rule 8.4(b), which is the commission of a “criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” His conduct constitutes serious misconduct which warrants either terminating or restricting his law license for a period of time under Section 7 of the Procedures Regulating Professional Conduct (“Procedures”). Under the American Bar Association Standards for Imposing Lawyer Sanctions, the distinction in the propriety of assessing disbarment versus suspension is drawn as follows:

5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.
5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.

Compendium of Professional Responsibility Rules and Standards §§ 5.11, 5.12 (1999 Ed.).

It would seem at first blush that Mr. Wilson’s criminal conduct militates more in favor of disbarment than suspension. But as already noted, in Wilson IV this court made it clear that automatic disbarment was not appropriate and that aggravating and mitigating circumstances must be looked to in deciding the proper sanction. Those circumstances are:

Aggravating Factors:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with [the] rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
(g) refusal to acknowledge [the] wrongful nature of [the] conduct;
(h) vulnerability of [the] victim;
(i) substantial experience in the practice of law;
0 indifference to making restitution;
(k) illegal conduct, including that involving the use of controlled substances.

Mitigating Factors:

(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make restitution or to rectify [the] consequences of [the] misconduct;
(e) full and free disclosure to [the] disciplinary board or cooperative attitude towards [the] proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency including alcoholism or drug abuse when;
(1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability;
(2) the chemical dependency or mental disability caused the misconduct;
(3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
(j) delay in [the] disciplinary proceedings;
(k) impositions of other penalties or sanctions;
(l) remorse;
(m) remoteness of prior offenses.

Model Standards for Imposing Lawyer Sanctions §§ 9.22 and 9.32 (1992).

Of the mitigating factors, the following appear relevant to this case:

•absence of a prior disciplinary record;
•reputation;
•delay in [the] disciplinary proceedings;
•imposition of other penalties or sanctions.

Mr. Wilson had ample letters of recommendation from community leaders. He has also engaged in public service since his misdemeanor convictions both in terms of public interest litigation and service in the Arkansas General Assembly. But two circumstances appear particularly pertinent ■ — ■ delay in the disciplinary proceedings and imposition of other penalties and sanctions.

The conduct of Mr. Wilson at issue in this appeal occurred almost twenty years ago. Ten years ago, he admitted his guilt to five misdemeanors based on a plea agreement and served time in prison. He stated in his testimony before the circuit judge in the instant case that he lost his farm as part of the punishment. Since 1985, with the exception of a few months, he has been suspended from practicing law in the federal courts. He was disbarred from practice in the state courts following the decision of the circuit judge prior to the appeal in Wilson IV for more than two years. These formal disciplinary proceedings have been going on now for ten years. There is no doubt that Wilson has already experienced significant penalties and sanctions for his conduct.

We note in addition that certain aggravating factors are absent in this case. Mr. Wilson’s' misdemeanor pleas were for conduct perpetrated against the federal government and not for conduct against a vulnerable and susceptible client. While this does not excuse Mr. Wilson’s conduct, it eliminates an aggravator that might have otherwise been present. Nor do we glean from the record that Mr. Wilson engaged in a bad-faith obstruction of the disciplinary proceedings or that he engaged in deceptive practices before the Committee.

Taking all of these circumstances under consideration, the circuit judge was correct that disbarment was not an appropriate sanction. However, any decision along these fines must be measured against the yardstick of Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999), because in that case we found disbarment to be the appropriate sanction after considering for the first time the American Bar Association standards for mitigators and aggravators. In the Hollingsworth case, the embezzlement of money from a client was involved. There are many aspects in this case that distinguish it from Hollingsworth. In Hollingsworth, the circuit judge found (and we agreed) that Hollingsworth had knowingly diverted funds for his own use from an estate whose primary beneficiary was a vulnerable widow (an aggravating circumstance) and then had tried to cover up the diversion of funds by not answering his client’s questions or giving her the requested accountings. This conduct occurred more recently than Mr. Wilson’s and for a significant period of time — more than five years — from 1989 to 1994. The result of this conduct was a finding by the circuit judge that Hollingsworth had committed eight rule violations:

Rule 1.1 — competence
Rule 1.3 — diligence
Rule 1.4(a) — communication
Rule 1.5(a) (b) — fees
Rule 1.15(a)(b)(c) — safekeeping property
Rule 3.2 — expediting litigation
Rule 4.1 — truthfulness in statements to other
Rule 8.4(c) (d) — misconduct

In the case before us, there was also a pattern of misconduct but for a shorter period of time, and it involved a victim (the government) that was not a vulnerable client. In addition, Mr. Hollingsworth termed his misconduct a “technicality” while Mr. Wilson pled guilty to his wrongdoing. There is also the point that Mr. Wilson’s public interest litigation and public service in the General Assembly occurred after his misconduct. Mr. Hollingsworth’s misconduct occurred after much of his public service and after he had been a licensed attorney for more than nineteen years.

The fact that Mr. Hollingsworth was never charged with embezzlement and Mr. Wilson was charged with a crime is not a critical distinction. The findings of the circuit judge in Hollingsworth equate to a finding of embezzlement and a coverup, though Hollingsworth was never charged, perhaps due to the reluctance of the widow to bring charges. In short, the circumstances surrounding Mr. Hollingsworth’s conduct, which amounted to stealing from an estate for more than five years, where his client, the widow, was the executrix and primary beneficiary, appear more dire and pronounced than Mr. Wilson’s wrongdoing against the government for a shorter period of time.

The remaining issue is whether Mr. Wilson should be suspended for a period of years or disbarred for a period of years. This court does have precedent for meting out a disbarment sanction for a fixed term of years. See Weems v. Supreme Court Committee on Professional Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975) (disbarment assessed by circuit judge reduced by this court to a term of three years). Though Mr. Wilson equates a five-year suspension to disbarment in his brief on appeal, the distinction between suspension and disbarment is obviously a critical one. Following a suspension for a term of years, an attorney may apply for reinstatement under Section 7K of our Procedures, which entails little more than showing the Committee that his license fees are current and that he did not practice law during the period of suspension. Following disbarment, however, an application for readmission to the bar made to the Board of Law Examiners as well as approval by this court are required, and that is much more onerous. See Procedures § 7L. This is comparable in effect to an initial application to practice law and entails a character and fitness evaluation by the Board of Law Examiners and even, in some cases, taking the bar exam again.

Additionally, when a disbarment is based on dishonesty, readmission is an impossibility. Section 7L(2)(c) of the Procedures provides that readmission shall not be allowed if:

(c) Any of the grounds found to be the basis of a disbarment or any grounds presented in a voluntary surrender of law license are of the character and nature of conduct that reflects adversely on the individual’s honesty or trustworthiness, whether or not the conviction of any criminal offense occurred.

As already noted, this court affirmed the fact that Mr. Wilson’s conduct involved dishonesty and reflected adversely on his fitness to practice law in Wilson IV. Thus, our procedures slam the door on any potential readmission by Mr. Wilson, even if his disbarment is only for a term of years.

Finally, it is necessary to address two other opinions in this case. Justice Smith agrees that disbarment is not an appropriate sanction. Fie maintains, however, that our Procedures should be construed so as to limit the circuit judge and this court to a one-year suspension. That is not a correct reading of our Procedures. Under the Procedures in force in 1990, they provided that the Committee was authorized to suspend an attorney from the practice of law for one year. But, a separate section of the Procedures sets forth the authority of the circuit judge as opposed to the Committee, once a disbarment action has been filed in that court. If a finding is made that one or more of the Model Rules of Professional Conduct have been violated, the circuit judge in a disbarment action “shall caution, reprimand, suspend, or disbar such attorney as the evidence shall warrant.” 1990 Procedures, § 5G.(2). Thus, the whole panoply of sanctions is available to a circuit judge and, concomitantly, to this court. And there is no basis for concluding that because the Committee can suspend a lawyer from the practice for up to one year, circuit judges are similarly limited when meting out sanctions in a disbarment action. Our rules are so clear on this point that there is no valid basis for invoking the canons of statutory construction, as Justice Smith has done. To do so takes a limitation on the Committee’s power and impresses it on the circuit judges in disbarment proceedings, which was never contemplated by our Procedures. In sum, the circuit judge in this case had the authority to suspend Mr. Wilson from the law practice for five years.

Nor do I see that Mr. Wilson’s due process rights were jeopardized by imposition of a sanction (five-year suspension) of which he contends he had no notice. Again, our Procedures clearly give circuit judges full authority to suspend as the evidence warrants in disbarment matters. This court has found a violation of an attorney’s due process rights when that attorney was not notified of a specific rule violation for which he or she might have been sanctioned. See, e.g., Colvin v. Committee on Professional Conduct, 305 Ark. 239, 806 S.W.2d 385 (1991). Here, though, Mr. Wilson was fully apprised of the fact that his sanction might be disbarment. Under these facts it makes little sense to contend that the assessment of a lesser sanction which is authorized by our Procedures violated his right to due process.

Finally, there is the dissenting opinion of the chief justice which favors total disbarment. The dissent falls into the same trap as the circuit judge in Wilson IV and fails to consider the ABA standards for aggravating and mitigating circumstances. In particular, the dissent discounts the aggravating circumstances of a vulnerable client and a coverup, which were present in Hollingsworth but not in the instant case. There is, too, the point that Mr. Hollingsworth was found to have violated eight of our Model Rules for more than five years. Mr. Wilson was found to have violated one. Of course, it is vastly easier to look at Mr. Wilson’s conduct and say that dishonesty was involved twenty years ago and, thus, permanent disbarment is warranted, without examining the mitigating and aggravating factors in this case. That, however, is contrary to what we held in Wilson IV, where we stated that the circuit judge, and by necessity this court as well, must look to all the circumstances of each case.

Glaze and Corbin, JJ., not participating.

Arnold, C.J., Thornton and Smith, JJ., and Special Justices James E. Burnett and Jay F. Shell concur in part and dissent in part.

W.H. “Dub” Arnold, Chief Justice,

concurring in part; ustice, disagree with my fellow justices that disbarment is not the appropriate sanction in this case. The appropriate sanction is not only important to the appellant in this case, Mr. Wilson, but it is ultimately important to the entire legal profession, in that this court has previously held that appellant’s conduct constituted a violation of Rule 8.4(b) of the Model Rules of Profession Conduct, which regards the commission of a “criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” See Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998) (noted as Wilson IV by my colleagues). Mr. Wilson was convicted of five counts of “knowingly” converting money and property that belonged to the federal government in violation of the law. This court agreed with the trial court that these convictions, even though they were misdemeanors, involved dishonesty and a breach of trust, and seriously undermined “the confidence of the public in our legal profession.” Id. at 161, 964 S.W.2d at 205-06, (quoting In re Lee, 305 Ark. 196, 806 S.W.2d 382 (1991)).

The power to regulate and define the practice of law is a prerogative of the judicial department as one of the divisions of government. See Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994); Weems v. Supreme Ct. Comm. on Prof. Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975), reh’g denied, 257 Ark. 685-A, 523 S.W.2d 900 (1975). Our responsibility is set forth explicitly in Amendment 28 to the Arkansas Constitution, which states: “The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.” This court accepted the responsibility assigned to it by the Constitution and set the standards high in order to protect the public, as well as the integrity of the legal profession. We have held that truthfulness, honesty, and candor are “necessary characteristics for establishing a candidate’s good moral character and hence his or her fitness to practice law.” Shochet v. Arkansas Board of Law Examiners, 335 Ark. 176, 187, 979 S.W.2d 888, 894 (1998) (quoting Application of Jenkins, 467 A.2d at 1088).

Each year, law school graduates who have passed the bar examination appear before the Supreme Court to take the oath of office. A portion of that oath states: “I will, to the best of my ability, abide by the Model Rules of Professional Conduct and any other standards of ethics proclaimed by the courts. . . .” These same graduates are reminded that they have become a part of the legal system and that they must be good stewards for the profession. What example is set when lawyers violate the rules, and the proper sanction is not imposed? Lawyer professionalism will be taking a tremendous toll on public trust and confidence.

Our court has demanded of the lawyers of this State high standards; and, as late at June of last year, in Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999), this court held that a violation of trust and dishonesty would not be tolerated. We said in Hollingsworth:

This type of misconduct can only be characterized as serious, substantial, and egregious. Under these circumstances, we hold that the trial court clearly erred when it imposed a mere six-month suspension from the practice of law. The only appropriate sanction commensurate with Mr. Hollingsworth’s actions is disbarment.

Id. at 276, 992 S.W.2d at 784.

In the case now before us, my colleagues admit that when applying appellant’s conduct to the American Bar Association Standards for Imposing Lawyer Sanctions, disbarment clearly appears to be the appropriate sanction, based on appellant’s actions. In light of our decision in Hollingsworth, they attempt to distinguish and minimize Mr. Wilson’s conduct based, primarily, upon the fact that the victim in Wilson’s case was merely the government, and not a client, as was the case in Hollingsworth. I find that distinction to be rather offensive, given that the government is the “people”; and those “people” happen to be you and me.

It is hard for me to believe that my fellow justices could conclude that Mr. Wilson’s conversion of government property and conspiracy to defraud the federal government of well over $700,000, among other crimes, .warrants any sanction less than complete disbarment — particularly in light of our decision in Hollingsworth. I might also point out that Mr. Hollingsworth, unlike Mr. Wilson, was neither charged, convicted, nor served time in the penitentiary for his actions. It is clear that Hollingsworth is, indeed, distinguishable from Wilson; however, in my opinion, Wilson is more egregious than Hollingsworth.

Finally, I must take exception to my fellow justices’ logic regarding the reason disbarment for a term of years would be an inappropriate sanction. They state that if this court were to disbar the appellant for a term of years, rather than a lifetime disbarment, that fixed-term disbarment would be tantamount to a complete disbarment, since appellant would have to apply for reinstatement under Section 7K of our Procedures and would never be readmitted because the very basis of his disbarment is conduct involving dishonesty. What? This analysis is illogical.

In other words, it is apparently the opinion of my fellow justices that the appellant should not be disbarred for a term of years, even though his conduct warrants disbarment, because that very conduct would keep him from ever having been admitted to the bar in the first place. What better argument for complete disbarment than that very rationale? — let us not disbar him, because based on his conduct, if we do so, he could never be readmitted to the bar. That is ludicrous and is a pathetic reason for imposing a lighter sanction. I believe my fellow justices have lost sight of the fact that it is a privilege to hold an attorney’s license, not a God-given right.

In my opinion, the decision in this case in no way advances the public trust and confidence in our profession. I believe a dangerous precedent is being set, moving the standard which guides the actions of attorneys to a considerably lower level. I, therefore, respectfully dissent.

Special Associate Justice JAY F. SHELL joins.

LAVENSKI R. SMITH, Justice,

concurring in part; dissenting in part. I concur with the court that sanctions are warranted. The practice of law is a high privilege, and those who receive that privilege must adhere to the standards of conduct prescribed for the profession. Failure to do so not only warrants but demands appropriate sanction. Two justices are of the view that the circuit court could impose a five-year suspension under the rules in effect in 1990. I disagree and would hold that the better reading of the applicable rules would limit the suspension sanction to one year. Moreover, I believe the preferred policy would be to not favor long-term suspensions. The majority dismisses the need to apply the construction canons to interpret our rules because of their presumed clarity. With respect to sanctions, our rules are not so clear as they suppose when the potential exists for imposition of suspensions for unlimited and perhaps arbitrary terms. The public is not best protected from unscrupulous attorneys by having them remain out of the practice of law for a decade, then potentially return to practice having been apart from the profession for such an extended period. The majority cites no case under the modern rules imposing a five-year or greater suspension from the practice law. Surely, outright disbarment would be a better policy for the public’s good as compared to long-term suspension. Here, we have the interesting circumstance where a disbarred attorney could seek reinstatement sooner than an attorney suspended for five years. See, In the Matter of Wayne R. Williams, 265 Ark. 489, 592 S.W. 2d 438 (1979). Williams surrendered his license rather than face almost certain disbarment for grossly unethical conduct. Three years later, he petitioned for and received reinstatement to the practice of law.

A closer examination of the applicable rules is in order. Section 7 of the applicable 1990 procedures is entitled “Sanctions.” Paragraph A is entitled, “Sanctions Authorized.” Under this section, the Committee is authorized to warn, issue a caution or reprimand, suspend the attorney for one year, or file a disbarment action in circuit court. In this case, the Committee filed an action in circuit court. Once the Committee files a disbarment action, if sanctions are required the sanctions will be imposed by the trial court in accordance with a different section, specifically Section 5(G)(2). Wilson IV, supra. Section 5(G)(2) provides that if the circuit court finds the attorney has violated the “Model Rules, he shall caution, reprimand, suspend, or disbar such attorney as the evidence may warrant.”

It is evident that the rules contain two sections regarding sanctions, one describing those available to the Committee, and the other describing those available to the trial court. The list in both sections contains the same categories of sanctions with the exception of the trial court’s list, which includes the additional sanction of disbarment.

In Section 7, the Committee’s authority to suspend was expressly limited to one year. Section 5(G)(2) dealing with the trial court contains no such limitation. It is indeed proper to ask whether the suspension authority given the trial court in Section 5(G)(2) describing the committee’s procedure exceeds that expressly outlined in Section 7. Section 5 of the Committee’s Procedure Rules, appearing prior to Section 7 in the rules, specifically addresses the “Procedure” to be followed by the Committee in pursuit of its obligation to investigate and sanction violations. In subsections designated (A) through (H), Section 5 outlines the Committee’s general investigatory authority (A), the notice to be given the attorney (B), the response time (C), the manner of voting by committee (D and E), committee hearing procedures (F), the committee’s obligation to institute disbarment (G), and the attorney’s appeal rights (H). The language addressing the Circuit Court’s authority to sanction appears in (G)(2) and lists four possible sanctions actions — caution, reprimand, suspension, or disbarment. The actions are not defined. Nor are they expressly distinguished from the Committee’s sanction list in Subsection 7(A).

While it is clear that the circuit court’s responsibility to sanction attorneys in disbarment actions is fisted separately in the rules and can include disbarment, it is not as clear whether the court’s suspension of an attorney from the practice of law can exceed that stated in the Committee’s sanction list in Subsection 7(A). Arguably, in that the circuit court has separate sanction authority stated in 5(G)(2), it could suspend an attorney from the practice for any period of time. Perhaps, the court could suspend an attorney for ten years or even twenty years. We construe our rules using the same means, including canons of construction, as are used to construe statutes. Gannett River States Co. Pub. v. Ark. Jud. Discip. & Disab. Comm., 304 Ark. 244, 801 S.W.2d 292 (1990). The fundamental principle used in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning. Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998).

However, where the applicable statute is penal in nature, i.e., imposes a penalty or punishes conduct, we have long held that it is to be strictly construed. Hughes v. State, 6 Ark. 131 (1845). Moreover, we have held that in construing such statutes, all doubts are to be resolved in the favor of the defendant and nothing is taken as intended which is not clearly expressed. State v. Lewis, 335 Ark. 188, 979 S.W.2d 894 (1998). Construing the rules stricdy, I would hold that the trial court’s suspension of Wilson from the practice of law could not exceed one year. Our rules have been made much more explicit with respect to the imposition of suspensions and other sanctions by our revised rules adopted January, 8, 1998. The sanctions are now specifically defined and explicit guidelines are given for the imposition of the appropriate sanction. I would affirm the trial court’s suspension but modify it consistent with a strict reading of the rules then in effect.

THORNTON, J., and Special Justice JlM BURNETT join.

       According to Wilson I, the amount borrowed by Mr. Wilson from the FmHA in 1981 and 1982 was approximately $775,230. A federal grand jury indicted him based on his disposition of the proceeds from multiple crop sales and the transfer of funds from a joint bank account with the FmHA to his law firm account, all in an effort to avoid the FmHA lien. In 1985, he was tried on various felony counts and found guilty of one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371, forty counts of knowingly disposing of property mortgaged to a government agency in violation of 18 U.S.C. § 658, and seven counts of unlawfully converting government property in violation of 18 U.S.C. § 641. His judgment of conviction was reversed by the Eighth Circuit Court of Appeals due to a Batson violation at his jury trial. United States v. Wilson, 815 F.2d 52 (8th Cir. 1987). On remand to the federal district court, Mr. Wilson pled guilty to the five misdemeanors noted in this opinion.

       Section 7E(2) of the Procedures now in force, which were adopted by this court in 1998, authorizes the Committee to suspend a lawyer’s license “not in excess of two (2) years.”

       The amended version of this Section now in effect expanded the Committee’s authority to suspend up to two years.


text:
    Dewayne GLASS; Avenell Scott; Ray Albert Hussey; Jason Jordan v. STATE of Arkansas
    CR 00-454; CR 00-455; CR 00-457; CR 00-459
    16 S.W.3d 543
    Supreme Court of Arkansas
    Opinion delivered May 11, 2000

      G.B. “Bing” Colvin, III, for appellants.

      No response.
   PER CURIAM.

Before us are four motions for rule on the AM. submitted by G.B. “Bing” Colvin, III, requesting permission to file belated petitions for review of orders by the Arkansas Court of Appeals denying his motions for attorneys’ fees in the above-captioned matters.

Mr. Colvin is the managing attorney for the Tenth Judicial District Public Defender Office. The motions for attorneys’ fees for which he seeks review were submitted on behalf of his office by attorneys who acted as “briefing assistants” for the public defender’s office. The briefing assistants, according to Mr. Colvin, are private attorneys who assisted in the preparation of appellate briefs on behalf of indigent criminal defendants represented by the public defender’s office. In return for the appellate work, the briefing assistants were to receive as compensation any attorneys’ fees granted by the appellate court in the matters on which they worked. They submitted the motions for attorneys’ fees on behalf of the public defender. In exchange, the public defender agreed to endorse the payment by the appellate court and deliver it in its entirety to the briefing assistants. Following this court’s decision in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), wherein we held that state-salaried public defenders are not entitled to additional compensation for appellate work, the Court of Appeals denied the motions for attorneys’ fees in the above-captioned matters submitted on behalf of the Tenth Judicial District Public Defender Office. Mr. Colvin requests that we review those rulings and declare Rushing inapplicable to the above-captioned cases for two principal reasons. First, Mr. Colvin argues that the appellate work for which fees are sought was performed prior to this court’s decision in Rushing, thereby rendering the Court of Appeals denial of fees in these cases a retroactive application of new law. Second, he alleges that Rushing is inapplicable where the entire award of attorney’s fees will be given to private counsel who merely contracted with the public defender’s office for the work. Consequently, no state-salaried public defender will actually be compensated by the award of attorney’s fees.

While this court has the discretion to review the decisions of the Court of Appeals, as Mr. Colvin has acknowledged in his motion, that discretion is limited to the review of appeals decided by the Court of Appeals. Ark. Sup. Ct. R. l-2(e). Unless the matter sought to be reviewed involves a motion to dismiss appeal, thereby invoking this court’s ultimate authority as to the determination of appellate jurisdiction, we do not review rulings by the Court of Appeals on motions. See Simmons v. State, 341 Ark. 251, 15 S.W.3d 344 (2000); Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999); Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996); Kimble v. Gray, 313 Ark. 373, 853 S.W.2d 890 (1993). The motions for rule on the clerk are, therefore, denied.

       It should be noted that motions involving an issue of significant public interest may be certified to us by the Court of Appeals pursuant to Ark. Sup. Ct. R. l-2(d). Webber v. Arkansas Dep’t of Human Servs., 334 Ark. 527, 975 S.W.2d 879 (1998); See also, Dugal Logging, Inc. v. Arkansas Pulpwood Co., 336 Ark. 55, 984 S.W.2d 410 (1999); Dugal Logging, Inc. v. Arkansas Pulpwood Co., 335 Ark. 546, 983 S.W.2d 126 (1998).


text:
    James F. “J.F.” VALLEY v. David BOGARD, Judge
    00-539
    20 S.W.3d 271
    Supreme Court of Arkansas
    Opinion delivered May 12, 2000

      Wilson & Valley, by: Jimmie L. Wilson, E. Dion Wilson, J.E Valley, Andre K. Valley, and Don R. Etherly, for appellant.

      Mark Pryor, Att’y Gen., by: Kelly S. Terry, Ass’t Att’y Gen., for appellee.
   PER CURIAM.

On May 4, 2000, the Circuit Court of IAM. County, Sixth Division, entered an order ruling that Mr. James F. Valley shall not be certified as a candidate for State Representative, District 99, in the Democratic primary election to be held on May 23, 2000. The court further ordered that if the ballots for the primary have already been printed, any votes cast for Mr. Valley shall not be counted.

On May 9, 2000, Mr. Valley filed a notice of appeal from the May 4 order. On May 9, Mr. Valley also filed a petition for writ of certiorari, requesting that a stay of the May 4, 2000, order be granted. In Mr. Valley’s notice of appeal, he designated the entire record for the appeal, but stated he had unsuccessfully attempted to contact the court reporter, Ms. Ellen Kuciejski, regarding the transcript and to make the necessary financial arrangements.

On May 10, 2000, the Phillips County Board of Election Commissioners responded stating, among other things, that Mr. Valley’s petition and motion for stay be denied, and that his motion to expedite appeal be rejected. Respondent Circuit Judge David Bogard, by the Attorney General’s office, requests Mr. Valley’s claims for relief be rejected, and, more particularly, submits that Mr. Valley’s request for a writ of certiorari be denied because his remedy is one of appeal. The Secretary of State and the State Board of Election Commissioners have filed a response on May 10, 2000, essentially taking no position with regard to Mr. Valley’s eligibility as a candidate for the office of State Representative, District 99.

Finally, Respondent Arnell Willis filed his response on May 10, 2000, requesting Mr. Valley’s requests for relief be denied. Additionally, he joins other respondents in stating that the appeal record in this matter is grossly incomplete, because no transcript and exhibits have been filed or properly requested.

On May 11, 2000, our court issued a writ of certiorari to the court reporter in an attempt to expedite rendering a decision before the May 23, 2000 primary election, even though Mr. Valley’s notice of appeal failed to confirm that he ordered the transcript and made financial arrangements required by the court reporter pursuant to Ark. Code Ann. § 16-13-510(c) (Repl. 1999). See Ark. R. App. P. — Civil 3(e) (2000). Instead, as noted above, Mr. Valley asserted in his notice of appeal that he attempted, but failed, to make the required arrangements for the record. Court reporter, Ms. Ellen Kuciejski has submitted her affidavit on this date, May 12, 2000, averring that Mr. Valley, to date, has not made arrangements for the record in this appeal.

Under Ark. R. App. P. — Civ. 3(e) (2000), it is required that the notice of appeal provide that financial arrangements had been made with the court reporter. While Mr. Valley’s appeal is not rendered void, Mr. Valley’s failure to comply with Ark. R. App. P. — 3(e) makes it impossible for this court to expedite this matter in order to decide it before the May 23 primary election. See Wilson v. Cook, 318 Ark. 520, 886 S.W.2d 593 (1994) (requests for accelerated proceedings and application for temporary relief were denied because the transcript could not be filed in time to decide the case before the scheduled election). In the instant case, Mr. Valley has failed to show he has made proper arrangements for the record, and we are unable to determine when a full record can be provided so this court can establish a briefing schedule. For these reasons, we deny Mr. Valley’s requests to a stay and to accelerate this appeal. This court’s May 11, 2000, writ of certiorari was improvidently issued and is withdrawn.


text:
    James “J.F.” VALLEY v. David BOGARD, Judge
    00-539
    20 S.W.3d 272
    Supreme Court of Arkansas
    Opinion delivered May 15, 2000

      Wilson & Valley, by: Jimmie L. Wilson, E. Dion Wilson, J.E Valley, Andre K. Valley, and Don R. Etherly, for appellant.

      Mark Pryor, Att’y Gen., by: Kelly S. Terry, Ass’t Att’y Gen., for appellee.
   PER CURIAM.

Mr. Valley files a motion for us to reconsider AM. per curiam issued on May 12, 2000, where we were compelled to deny his motion to stay and accelerate this proceeding because Mr. Valley failed to comply with Ark. R. App. P. — Civil 3(e) (2000). In doing so, he failed to file a notice of appeal showing he had made financial arrangements for the preparation of the record, thus, making it impossible to expedite and decide Mr. Valley’s appeal before the May 23, 2000, primary election.

In his reconsideration motion, Mr. Valley states he has filed an amended notice of appeal and refers to an attached exhibit A; however, such exhibit has not been attached. Nor does Mr. Valley’s motion reflect a certificate of service showing opposing counsel or parties have been served. Again, while this court attempted to accelerate the proceeding with the thought of scheduling simultaneous briefs, it is powerless to do so in light of Mr. Valley’s failure to comply with our civil appellate rules. We deny his motion for reconsideration.