author: ROBERT L. Brown, Justice.

text:
      ARKANSAS DEMOCRAT-GAZETTE; Arkansas Press Association; Associated Press; KFSM-TV; Morning News of Northwest Arkansas; Northwest Arkansas Times v. Judge Stacey ZIMMERMAN
    00-641
    20 S.W.3d 301
    Supreme Court of Arkansas
    Opinion delivered June 29, 2000

      Williams & Anderson LLP, by: John E. Tull III and Kristine G. Baker, for petitioners Arkansas Democrat-Gazette, Arkansas Press Association, Associated Press, and KFSM-TV.

      Mark Hinueber for petitioner Morning News of Northwest Arkansas.

      Lisle Law Firm, by: Chris Lisle, for petitioner Northwest Arkansas Times.

      Mark Pryor, Att’y Gen., by: Brian G. Brooks, Ass’t Atty Gen., for respondent.
   ROBERT L. Brown, Justice.

The petitioners, Arkansas stice. (“Democrat-Gazette”), Arkansas Press Association, Associated Press, KFSM-TV, Morning News of Northwest Arkansas, and Northwest Arkansas Times (collectively, “the media”), have petitioned this court for a writ of mandamus-directing respondent, who is Juvenile Judge Stacey Zimmerman, to revoke her gag order on the press entered on May 18, 2000. We agree with petitioners that the gag order is too broad, and because of its breadth, constitutes a prior restraint on the press. We grant a writ of certiorari and direct Judge Zimmerman to modify her gag order in accordance with this opinion.

What gives rise to this original action for mandamus is the delinquency case brought by the State against Michael Nichols, age 12. Nichols allegedly was involved in an exchange of gunfire with Prairie Grove police officer, Sergeant Greg Lovett, on May 11, 2000. Both Nichols and the police officer were wounded. On May 17, 2000, Nichols was charged with attempted capital murder in juvenile court in State v. Nichols, Case No. J 2000-554 (Washington County Juvenile Court). The case was assigned to Judge Zimmerman. Following the shooting, a yearbook photograph of Nichols and his name were published in the media. Nichols’s parents were also identified, and the name and employment of the victim were published.

On May 18, 2000, juvenile proceedings began before Judge Zimmerman. This was Nichols’s first appearance in juvenile court. He was advised of the charge against him, and he pled innocent. The hearing was open to the public, and members of the media were present. At the beginning of the hearing, the judge orally issued a gag order without prior notice that she was going to do so. She ordered that (1) no information be released by the media in the Nichols case except what was stated on the record at the hearings, (2) no names or pictures of the victim and the victim’s family be disseminated in the media, (3) no names or pictures of Nichols or his family be disseminated in the media, and (4) no names or pictures of juveniles in the courthouse be broadcast or released by the media. The court order memorializing the oral gag order was entered at 4:03 p.m. on that same day and includes the following:

3. The Court hereby issues a gag order in this case and orders no names or pictures of the victim and victim’s family or the juvenile defendant and juvenile defendant’s family be published or disseminated in any manner. The only matters that may be published by the media are those stated on [the] record the (sic) in this court;
4. No pictures of the juveniles who are present in the Courts Building, or entering or leaving the Courts Building, shall be disseminated by the media.

After the judge’s oral gag order, a reporter for the Democrat-Gazette told a Democrat-Gazette photographer outside the courtroom that the judge had issued a gag order. Later that day, the photographer took photographs of Nichols’s parents outside the courthouse and of Nichols leaving the courthouse with a coat over his head and escorted by two police officers. The photographs were published in the Democrat-Gazette the next day.

On May 20, 2000, Judge Zimmerman held a second hearing on the Nichols matter. At that time, she orally modified her gag order to permit dissemination of pictures obtained by the media prior to her May 18 gag order. Her gag order regarding future photographs of the juvenile, the victim, and their families remained in effect. In modifying her order, she noted that she was within her statutory authority to restrict the dissemination of future photographs and stated that the public’s right to know events through the media must be “balanced with the confidentiality requirements and the spirit of the Juvenile Code.” This oral modification was memorialized in an order entered by the judge on June 2, 2000. That order stated in pertinent part:

3. The Court hereby modifies the Order of May 18, 2000 with respect to the publication and dissemination of the juvenile defendant’s name and the photograph of the juvenile defendant published before the May 18, 2000 detention hearing, as the Court cannot restrict the dissemination of the juvenile’s name and photograph published before the May 18, 2000 detention hearing.
4. The Court reiterates its prior Order of May 18, 2000 that no pictures of the juvenile defendant or any other juvenile who is present in the Courts Building shall be disseminated by the media, and no pictures of any juvenile entering or leaving the Courts Building shall be disseminated by the media.
5. The Court reiterates its prior order that no pictures of the defendant’s family or victim’s family shall be published or disseminated in any manner.
6. Juvenile Court staff, prosecutors and defense attorneys in the case are restricted from discussing the particular facts of the case with the media while case is pending.

The judge’s May 20 order also set a hearing for May 25, 2000, in response to a motion by Nichols’s attorney, to determine whether the Democrat-Gazette should be held in contempt of court for violating the judge’s gag order and further to decide the media’s motion to intervene in the Nichols proceedings.

On May 25, 2000, Judge Zimmerman conducted the show-cause hearing and heard testimony from witnesses for the Democrat-Gazette. Following the hearing, she held the Democrat-Gazette in contempt of court and fined the newspaper $100. Pursuant to a motion by Nichols’s attorney, she ordered that further proceedings in the Nichols case be closed to the public. Judge Zimmerman also denied the media’s motion to intervene and stated that their remedy for attacking the gag order was by petition for writ of mandamus to this court. Pier oral ruling was memorialized in a sixteen-page order entered on June 5, 2000. In that order, she reiterated that her gag order set out in her May 18 and May 20 orders remained in effect.

On June 6, 2000, the adjudication hearing for Nichols began. Prior to the hearing, Judge Zimmerman entered a handwritten order opening the hearing to the public. The order included the following:

1. Upon the Defendant’s request, the Court hereby opens the hearings to the public, pursuant to 9-27-325 ACA.
2. However, the Court’s previous order of May 20th shall remain in effect.
3. No tape recorders or photography shall be permitted in the courtroom.
4. The juvenile defendant’s case file is still sealed and closed to the public.

On May 31, 2000, the media filed a petition for writ of mandamus and for temporary relief or, alternatively, for an accelerated proceeding. By per curiam order dated June 6, 2000, this court expedited consideration of the mandamus petition but denied a temporary stay of the gag order. Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 525, 19 S.W.3d 1 (2000).

I. Writ of Certiorari

We first examine whether a writ of mandamus is the proper remedy for correcting a prior restraint of the media. The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. Manila Sch. Dist. No. 15 v. White, 338 Ark. 195, 992 S.W.2d 125 (1999). A writ of mandamus is issued by this court only to compel an official or judge to take some action. Raines v. State, 335 Ark. 376, 980 S.W.2d 269 (1998). When requesting a writ of mandamus, a petitioner must show a clear and certain right to the relief sought and the absence of any other adequate remedy. Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998). But a writ of mandamus will not lie to control or review matters of discretion. Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995). In contrast, a writ of prohibition is issued by this court to prevent or prohibit the lower court from acting wholly without jurisdiction. Raines v. State, supra. While mandamus compels action, prohibition prevents it from occurring. Id. A writ of certiorari is appropriate when it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion by the trial judge, and there is no other adequate remedy. Arkansas Pub. Defender Comm’n v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000).

In the past, this court has issued a writ of mandamus, a writ of prohibition, and a writ of certiorari under different circumstances to void a prior restraint of the press by a trial judge. See Ark. Gazette Co. v. Lofton, 269 Ark. 109, 598 S.W.2d 745 (1980) (writ of mandamus); Brown v. Kimbrough, Judg., 263 Ark. 913, 568 S.W.2d 226 (1978) (writ of prohibition); Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972) (writ of certiorari). In Brown v. Kimbrough, supra, this court held that a petition for a writ of prohibition was the proper avenue of relief in a prior restraint case where the prosecuting attorney sought an injunction from the chancery court against the future sale of any “writing, picture, motion picture, films, slides, drawings, or other visual reproductions of obscene materials.” The chancery court had not acted on the injunction at the time that the petition for the writ was filed. This court concluded that prohibition was appropriate:

Our cases regularly recognize that prohibition will lie to prohibit a trial tribunal wholly without jurisdiction or one that is threatening to act in excess of its jurisdiction where the remedy by appeal is inadequate. Skinner v. Mayfield, 246 Ark. 741, 439 S.W.2d 651 (1969), and Bassett v. Bourland, 175 Ark. 271, 299 S.W.2d 14 (1927). Since there exists no remedy against the State to restore or grant redress to a person who has been deprived by prior restraint of his right to exercise freedom of speech and press for whatever length of time the prior restraint may exist, it follows that petitioners’ have no adequate remedy by appeal from such injunction issued in excess of the trial court’s jurisdiction.

Id. at 918, 568 S.W.2d at 229.

The Brown decision does not appear to be precedent for the case before us. In Brown, the chancery court had not acted. Here, Judge Zimmermán has already acted by issuing her gag order. Prohibition would not be appropriate under these circumstances, because this court cannot now prohibit the trial court from doing what has already been done. See Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000).

In Arkansas Gazette Co. v. Lofton, supra, the Gazette challenged the circuit court’s gag order restricting the newspaper from referring to a criminal defendant as the “Quapaw Quarter rapist” in its articles. The Gazette asked this court to issue a writ of mandamus. In determining that the writ should issue, we stated that the judge’s restraint of First Amendment freedom of the press amounted to “judicial censorship which is beyond the jurisdiction of this or any court.” Id. at 111, 598 S.W.2d at 747. In determining that mandamus was the proper remedy, this court referred the parties to its reasoning in Commercial Printing Co. & Tosco v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977). In Commercial Printing, the trial judge had excluded the public and press from voir ¿¿reexamination of prospective jurors in a criminal trial by conducting the proceedings in chambers. The press filed a petition for a writ of mandamus in this court, but respondent argued that mandamus was not the proper remedy. We disagreed and pointed out that mandamus may be used to prevent irreparable injury. We said in Commercial Printing that this was not a matter “which addressed itself to the discretion of the trial court, for the court lacked the authority to prohibit the public and press from the voir dire examination — which is the sole question presently before this court.” 262 Ark. at 93, 553 S.W.2d at 273.

Finally, in Wood v. Goodson, supra, this court stated that the appropriate avenue for relief in correcting a prior restraint was certiorari. In that case the judge had ordered the press not to publish the jury verdict finding the defendant guilty for a period of time owing to additional charges awaiting trial against that same defendant. We held that the judge did not have the power to prohibit the news media from publishing information about what transpired in open court.

It is axiomatic, however, that writs of mandamus are not issued by this court to review or control a trial court’s exercise of discretion. Tyson v. Roberts, 287 Ark. 409, 700 S.W.2d 50 (1985). We hold that although the petitioners have asked this court for a writ of mandamus compelling the judge to rescind her gag order, a writ of certiorari is the more appropriate remedy because the issue before this court is whether Judge Zimmerman’s action in gagging the media was on its face a plain, manifest, clear, and gross abuse of discretion and in excess of her authority. See, e.g., Arkansas Pub. Defender Comm’n v. Bennett, supra. Thus, we will treat the media’s petition for mandamus as one for certiorari. See Childress v. Humphrey, 329 Ark. 504, 950 S.W.2d 220 (1997) (per curiam) (petition for mandamus treated as petition for certiorari).

II. Prior Restraint

We turn then to the merits of this case. The focal point of the petition is whether Judge Zimmerman’s gag order constituted a prior restraint of the media, which contravenes the First Amendment to the United States Constitution and Article 2, § 6, of the Arkansas Constitution. The United States Supreme Court has held that a prior restraint of the press cannot transpire unless it is “accomplished with procedural safeguards that reduce the danger of suppressing constitutionally protected speech.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975). This court has said in the same vein that “any restraint on the freedom of the press, even though narrow in scope and duration, is subject to the closest scrutiny and will be upheld only upon a clear showing that an exercise of this right presents a clear and imminent threat to the fair administration of justice.” Arkansas Gazette Co. v. Lofton, 269 Ark. at 110, 598 S.W.2d at 746 (citing United States v. CBS, Inc., 497 F.2d 102 (5th Cir. 1974)). We have said in addition: “While prior restraints are not unconstitutional per se, any system of prior restraint bears a heavy presumption against its constitutional validity.” Orrell v. City of Hot Springs, 311 Ark. 301, 304, 844 S.W.2d 310, 312 (1992) (citing FW/PBS, Inc. v. City of Dallas, 110 S.Ct. 596 (1990)).

While the United States Supreme Court has not held that the press or the public enjoys a constitutional right of access to juvenile proceedings, it has recognized that the public has a right of access to criminal trials for adults. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (Burger, C.J., plurality opinion). The Court has also recognized that this right of access is not absolute, and if it is necessary to protect an “overriding interest articulated in findings,” courtrooms may be closed, or less restrictive, alternative restraints may be imposed. Id. at 581.

A seminal case on prior restraints is Nebraska Press Assoc. v Stuart, 427 U.S. 539 (1976). In Nebraska Press, a trial court had entered an order restraining the news media from publishing any admission or confession of the adult defendant revealed at a preliminary hearing or from broadcasting any facts “strongly implicative” of the defendant. The gag order prohibited everyone in attendance in the courtroom from “releasing or authorizing the release for public dissemination in any form or manner whatsoever any testimony given or evidence adduced.” The Nebraska Supreme Court affirmed the order as modified. In reversing the Nebraska Supreme Court, the Court noted that while the trial court acted out of legitimate concern in an effort to protect the defendant’s right to a fair trial, this concern must be balanced against the freedoms guaranteed under the First Amendment. The Court discussed previous prior restraint cases and noted: “The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Id. at 559. The Court then held:

To the extent that this order prohibited the reporting of evidence adduced at the open preliminary hearing, it plainly violated setded principles: “(T)here is nothing that proscribes the press from reporting events that transpire in the courtroom.” ... The County Court could not know that closure of the prehminary hearing was an alternative open to it until the Nebraska Supreme Court so construed state law; but once a public hearing had been held, what transpired there could not be subject to prior restraint.

Id. at 568 (citations omitted). Under Nebraska Press, trial judges may not order reporters not to reveal lawfully acquired information once they have been admitted to the courtroom.

While Nebraska Press dealt with a criminal proceeding involving an adult, the Supreme Court has addressed a similar situation in juvenile court. In Oklahoma Publ’g Co. v. Dist. Court, 430 U.S. 308 (1977), the press attended an open juvenile delinquency detention hearing without objection from defense counsel. While there, they learned the defendant’s name, and as the juvenile was being escorted from the courthouse to a vehicle, a photographer took his picture. Thereafter, a number of stories using the boy’s name and photograph were printed in numerous newspapers. Additionally, radio stations broadcast his name and television stations showed footage of him. Subsequently, the juvenile court enjoined the media from “publishing, broadcasting, or disseminating, in any manner, the name or picture of (a) minor child” in connection with the proceeding. The Supreme Court of Oklahoma denied the petitioner’s writs of prohibition and mandamus, relying on Oklahoma statutes which provided that juvenile proceedings are to be held in private “unless specifically ordered by the judge to be conducted in public,” and that juvenile records are open to public inspection only by order of the court.

The Court specifically did not address the constitutionality of the Oklahoma statutes but, rather, considered whether the First and Fourteenth Amendments allow a court to prohibit the publication of widely disseminated information obtained at court proceedings which were open to the public. The Court noted that it had previously held that the press may not be prohibited from “truthfully publishing information released to the public in official court records.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) (where rape victim’s name lawfully acquired, state could not impose sanctions on press for publication of the name). The Court struck down the order, holding that once the media had been admitted to the courtroom, they could not be prevented from revealing information about the case. In reaching this conclusion the Court said: “Once a public hearing had been held, what transpired there could not be subject to prior restraint.” Id. at 311. The Court added:

The court below found the rationale of these decisions to be inapplicable here because a state statute provided for closed juvenile hearings unless specifically opened to the public by court order and because “there is no indication that the judge distinctly and expressly ordered the hearing to be public.” We think Cox and Nebraska Press are controlling nonetheless. Whether or not the trial judge expressly made such an order, members of the press were in fact present at the hearing with the full knowledge of the presiding judge, the prosecutor, and the defense counsel. No objection was made to the presence of the press in the courtroom or to the photographing of the juvenile as he left the courthouse. There is no evidence that petitioner acquired the information unlawfully or even without the State’s implicit approval. The name and picture of the juvenile here were “publicly revealed in connection with the prosecution of the crime,” 420 U.S., at 471, !.. much as the name of the rape victim in Cox Broadcasting was placed in the public domain. Under these circumstances, the District Court’s order abridges the freedom of the press in violation of the First and Fourteenth Amendments.

Id. at 311-312.

Next, in Smith v. Daily Mail Publ’g Co., 443 U.S. 97 (1979), the Court reviewed a West Virginia statute that made it a crime for a newspaper to publish the name of any youth charged as a juvenile offender, without written approval of a juvenile court. The statute provided for criminal sanctions for violation of this statute. The press urged the Court to hold that because the statute requires juvenile court approval prior to publication of a juvenile’s name, it operated as a prior restraint on speech. The Court said: “The resolution of this case does not turn on whether the statutory grant of authority to the juvenile judge to permit publication of the juvenile’s name is, in and of itself, a prior restraint. First Amendment protection reaches beyond prior restraints.” Id. at 101. The Court then held that regardless of whether the statute was deemed a prior restraint or a penal sanction for the publication of lawfully obtained information, only a state interest of the highest order could justify such a drastic infringement. The Court concluded: “If the information is lawfully obtained, as it was here, the state may not punish its publication except when necessary to further an interest more substantial than is present here.”' Id. at 104. The Court noted that the only interest advanced by the State as justification for the statute was to protect the anonymity of the juvenile offender. The Court stated that while that was an important interest, it was not sufficient to justify application of criminal penalties, and it did not satisfy constitutional requirements.

None of these decisions by the United States Supreme Court precisely deals with the issues facing this court today, but they provide some guidance. The net cast by Judge Zimmerman’s gag order on photography is very wide indeed. It includes Nichols, Sergeant Lovett, their families, and “any juvenile entering or leaving the Courts Building.” The physical boundaries of the order are also considerably broad. The order’s scope includes not only the courtroom and the courthouse but pictures taken outside of the courthouse as well. And the May 20 oral gag order, which was entered on June 2, appears to differentiate between adults and juveniles. That order precludes pictures of juveniles entering or leaving the Courts Building but prohibits publication of the photographs of the families of Nichols and Sergeant Lovett “in any manner.”

Judge Zimmerman made clear in open court the reasoning behind her gag order at the May 25 contempt hearing. She correctly observed that one purpose behind the Arkansas Juvenile Code is to maintain the confidentiality of the juvenile. A second goal is rehabilitation of the juvenile whenever appropriate. She alluded specifically to Ark. Code Ann. § 9-27-348 (Repl. 1998), which reads:

No information whereby the name or identity of a juvenile who is the subject of proceedings under this subchapter may be ascertained shall be published by the news media without written order of the juvenile court.

The judge further relied on Administrative Order Number 6 of this court, which prohibits photography in juvenile court and which authorizes judges to decide whether photographs in “areas immediately adjacent” to the courtroom would distract participants and impair the dignity of proceedings. Finally, the judge observed that she could have closed the juvenile proceedings to the public and the media altogether but chose instead to open the Nichols detention hearing under her authority set out in Ark. Code Ann. § 9-27-325 (i) (Repl. 1998). That statute reads:

(2) All other hearings may be closed within the discretion of the court, except that in delinquency cases the juvenile shall have the right to an open hearing and in adoption cases the hearings shall be closed as provided in the Revised Uniform Adoption Act, § 9-9-201 et seq.

Ark. Code Ann. § 9-27-327(i) (2) (Supp. 1999). Her gag order, she stated, was narrowly tailored to balance the constitutional rights of the public and media against the rights of Nichols under the Arkansas Juvenile Code. Her order, she noted, was limited to photographs of the juvenile, Nichols, and Lovett as well as the families of Nichols and Lovett entering and leaving the courtroom and courthouse.

We do not disagree with Judge Zimmerman that confidentiality and rehabilitation are two overarching themes in the Juvenile Code. Our concern, nevertheless, is whether her gag orders went beyond the bounds of what was necessary under the facts of this case. We observe in this regard that the media does not contend in this case that § 9-27-348 of the Juvenile Code, which permits dissemination of the name and identity of a juvenile only by written order of the juvenile judge, is unconstitutional as a prior restraint of the media. Nor does it appear to contest Judge Zimmerman’s authority under our Administrative Order Number 6 to protect participants in proceedings and to preserve the dignity of proceedings in areas immediately adjacent to the courtroom. What the media does take issue with is the proscription against “taking photographs in public places, including but not limited to public sidewalks and public streets.” This leaves somewhat murky the question of whether the media is raising the issue of pictures taken in the courthouse but not immediately adjacent to the courtroom.

In any case, two critical points decide the issue of prior restraint in the estimation of this court. The first critical point is that the juvenile proceedings were open to the public and media on May 18 and May 20. The proceedings were then ordered closed on May 25, but ordered open to the public and media by the June 6 court order at the request of Nichols. Judge Zimmerman, as she acknowledged, could have closed the proceedings altogether under her statutory authority, but she chose not to do so, at least for most of the time in question. The second critical point is that the photograph of Nichols published before the May 18 gag order could not be restrained, as the judge correctly stated in her May 20 modified order. This means a photograph of Nichols as well as his identity and family were in the public domain prior to the judge’s order to the contrary. Thus, the proverbial bell had been rung, so to speak, and could not be unrung. The statutory policy prohibiting revelation of the name and identity of the juvenile had already been thwarted. In short, the combination of the fact that the juvenile proceedings had been open to the public and the media, and a photograph of Nichols had already been published with other identifying information lead this court to conclude that the state policy in favor of confidentiality had already been substantially undermined. No one contests the initial publication of Nichols’s name and photograph before the first gag order on May 18, and we must conclude that it was information that was lawfully obtained. Under such circumstances, there appears to be no overriding state interest at stake to justify restraining the media from taking additional photographs of Nichols.

That leaves this court with the issues of the other juveniles, the victim, and the families as well as whether the media can be restrained from taking photographs of all identified persons in “public places.” We admit to some question as to what the category of “any juveniles” encompasses and whether “families” includes more than the immediate families of Nichols and Lovett. The media, however, does not appear to contest the scope of “any juveniles,” and we will not address it. Suffice it to say, that gag orders must be narrowly tailored and “any juveniles” appears to be ill-defined. We agree with the media, however, that “families” is less than precise, and we direct Judge Zimmerman to address this category of persons more specifically.

With regard to public places, we conclude that Judge Zimmerman has the authority to exclude photographs in areas immediately adjacent to her courtroom under Administrative Order Number 6 for the purposes already stated. The scope of Administrative Order Number 6, however, does not include public streets and sidewalks outside of the courthouse. The media contest the breadth of the gag order in prohibiting these photographs in public places. The Seventh Circuit Court of Appeals has had occasion to address an order of similar scope. In Dorfman v. Meisgner, 430 F.2d 558 (7th Cir. 1970), the Court of Appeals held that a court rule prohibiting photographs in the courtroom “and its environs,” which embraced the plaza and sidewalks of the building, violated the First Amendment. We agree with this reasoning and hold that the gag order was too pervasive in its scope. Surely, the juvenile judge must protect participants in her proceedings from harassment and maintain the dignity of her court. But once the juvenile proceedings have been opened to the public, we discern no overriding state interest that would warrant an injunction against photographing Nichols and the others entering or leaving the courthouse.

We emphasize that the facts of this case do not involve a closing of the juvenile proceedings by the juvenile judge and a gag order issued by the juvenile judge prior to the first publication of the juvenile’s photograph and other vital information. Those circumstances are simply not before us. We hold, however, that under the facts of this case, the judge’s order was too broad and constituted a prior restraint of the media. Because we hold as we do, we need not reach the issue of prior notice to the media before the issuance of the gag order.

The breadth of the gag order leads us to conclude that the judge’s order is a plain, manifest, clear, and gross abuse of discretion. We issue a writ of certiorari to Judge Zimmerman and direct that she revise her order of May 20, 2000, which was entered on June 2, 2000, in accordance with this opinion.

Thornton, J., not participating.

       Media Petition For Mandamus, p. 11.


source: Caselaw Access Project

license: Public Domain

text:
    Charles A. “Jack” WALLS, III v. STATE of Arkansas
    CR 99-1267
    20 S.W.3d 322
    Supreme Court of Arkansas
    Opinion delivered June 29, 2000
    [Petition for rehearing denied September 7, 2000.]

      Lance L. Hanshaw, Judge;

      Hubert W. Alexander, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

The appellant, Charles A. stice. from a judgment of conviction for six counts of rape, following a resentencing in which he was sentenced to three life terms and three forty-year terms. The three life terms were fixed to run concurrently With each other, as were the three forty-year terms. The three forty-year terms, however, were to run consecutively to the life terms. Walls now appeals on grounds that the trial judge, Judge Lance Hanshaw, was biased at the resentencing hearing and should have recused or, alternatively, permitted him to withdraw his guilty and nolo contendere pleas. We hold that there was no abuse of discretion in Judge Hanshaw’s denial of the recusal motion or in his denial of Walls’s second motion to withdraw his guilty and nolo contendere pleas. We additionally conclude that based on the record before us, it appears that Judge Hanshaw has violated the Arkansas Code of Judicial Conduct. Accordingly, we direct the clerk of this court to forward a copy of this opinion to the Arkansas Judicial Discipline and Disability Commission for action.

This is the second appeal we have had on Walls’s sentencing. In Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999) (Walls I), which was handed down by this court on March 4, 1999, we held that Judge Hanshaw had abused his discretion when he allowed testimony about the Stocks murders to be introduced as part of victim-impact evidence and then stated at sentencing that he held Walls responsible for those murders when he set Walls’s sentence. We, accordingly, reversed the sentences and remanded the case to the trial judge for resentencing. It is the subsequent resentencing that is at issue in this appeal.

The chronology of events is important to our resolution of this matter. On January 22, 1998, Judge Hanshaw conducted a sentencing hearing following Walls’s plea of guilty to five counts of rape and a plea of nolo contendere to one count of rape. Walls had been a boy scout leader, and the rapes were perpetrated against boy scouts under his care. On February 4, 1998, Judge Hanshaw sentenced Walls to four life terms and two forty-year terms, with all sentences to run consecutively.

On the day of the sentencing, Judge Hanshaw made statements to reporters from two television stations. Channel 7, the ABC affiliate in Little Rock, reported that Judge Hanshaw stated he had sent to prison more than half a dozen young men who were victimized by Walls. That same day, according to Channel 11, the CBS affiliate in Little Rock, Judge Hanshaw met with the victims of the rapes and the victims’s families and gave them a book, The Wounded Heart: Hope for Adult Victims of Childhood Sexual Abuse.

The sentences meted out by Judge Hanshaw on February 4, 1998, were appealed to this court. On March 4, 1999, this court handed down Walls I in which we reversed the sentences and remanded the case for resentencing, as already discussed. On March 4, 1999, Judge Hanshaw told a reporter for Channel 4, the NBC affiliate in Little Rock, that he did not base Walls’s sentence on the Stocks murders and that the Stocks murders had nothing to do with the sentence. Also on that date, Judge Hanshaw told a Channel 11 reporter that the Walls sentences were within the parameters of the sentencing guidelines. A petition for rehearing was filed by the State, and it was denied by this court on April 15, 1999.

After we remanded this case to Judge Hanshaw, Walls filed several motions. On June 4, 1999, Walls moved forjudge Hanshaw to recuse because (1) he was tainted by the prejudicial evidence introduced at the first sentencing hearing, (2) he made public comments to the media exhibiting prejudice, and (3) he held an improper ex parte meeting with the victims and their families and gave them a book. Walls asserted that Judge Hanshaw had violated the Arkansas Code of Judicial Conduct and could not be fair at resentencing. He stated that any resentencing would be “politically motivated.”

Also on June 4, 1999, Walls moved to withdraw his pleas of guilty and nolo contendere under Ark. R. Crim. P. 26.1(a), on grounds that Judge Hanshaw was biased and that the resentencing would constitute a manifest injustice. On June 9, 1999, Judge Hanshaw declined to recuse and denied the motion for withdrawal of the guilty and nolo contendere pleas. Walls renewed the motions and asked for a hearing to present evidence, including videotapes depicting his public comments to the television stations and the ex parte meeting. That motion was denied on June 21, 1999. On June 22, 1999, Walls petitioned this court for a writ of prohibition to halt the resentencing on grounds that Judge Hanshaw was biased. We denied the petition without prejudice to raise the issue in a direct appeal.

On June 23, 1999, Judge Hanshaw conducted a resentencing hearing. Only two witnesses testified: Karen Knox, the mother of one victim, and Joy Cook, who worked for the prosecutor’s office and who testified about Judge Hanshaw’s meeting with the victims and their families on January 22, 1998, and the gift of the book, The Wounded Heart. Following the hearing, Judge Hanshaw sentenced Walls to three life terms and three forty-year terms. After his pronouncement of sentence, Judge Hanshaw permitted Walls to proffer into evidence the videotapes of the judge’s comments to television reporters.

Walls’s central issue on appeal is that Judge Hanshaw erred in failing to recuse from this case prior to the second sentencing hearing. Walls concentrates on the errors committed by the judge at the first sentencing hearing, where prejudicial testimony was permitted into evidence. He further emphasizes the public comments made by the judge to the news media as well as the ex parte meeting with the victims and their families and the gift of the book. Walls points to the Arkansas Code of Judicial Conduct and specifically to three canons:

Canon 1 — A judge shall uphold the integrity and independence of the judiciary.
Canon 2 — A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
Canon 3 — A judge shall perform the duties of the judicial office impartially and diligently.

Under the rubric of Canon 3, Walls urges that Judge Hanshaw violated (1) subsection B(7) by initiating ex parte communications with the victims and their families following the first sentencing on February 4, 1998, without the presence of defense counsel, and (2) subsection B(9) by publicly commenting on a pending proceeding on both February 4, 1998, and March 4, 1999, when the comments might reasonably be expected to affect the outcome of the proceeding or affect its fairness. We agree, as already stated, that based on what we have before us, there appear to be violations of the Judicial Code.

That leaves us with the question of whether a violation of the ethical rules set out in the Judicial Code manifests or equates to bias and, thus, ineligibility to preside over the Walls resentencing. We conclude that Judge Hanshaw’s apparent ethical lapses do not decide the bias issue. As an initial matter, this court has been resolute in holding that reversal and remand due to error by the trial judge do not automatically require recusal of the trial judge who erred. See, e.g., Wilson v. Neal, 341 Ark. 282, 16 S.W.3d 228 (2000). A judge has a duty to sit on a case unless there is a valid reason to disqualify. Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993). In addition, this court does not presume bias on the part of a trial judge but rather presumes impartiality. Wilson v. Neal, supra; Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998); Skokos v. Skokos, 332 Ark. 520, 968 S.W.2d 26 (1998). The decision to recuse lies within the discretion of the judge, and to decide whether there has been an abuse of discretion, we review the record to see if prejudice or bias was exhibited. Black v. Van Steenwyk, supra; Dolphin v. Wilson, 328 Ark. 1, 942 S.W.2d 815 (1997); Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994).

We discern no bias on the part of Judge Hanshaw in his resentencing so as to warrant a third sentencing. We address the March 4, 1999, statements first. Judge Hanshaw’s comments that he was not influenced by the Stocks murders and that the terms fixed were within the sentencing guidelines, while inappropriate and ethically suspect under the Judicial Code, fall more into the category of disagreement with this court’s decision rather than bias. But in addition to that, we glean from the record no suggestion of prejudice on the part of Judge Hanshaw towards Walls after Walls I. On the contrary, at the resentencing hearing, Judge Hanshaw permitted counsel for Walls to proffer videotapes of the televised newscasts for the record, although the proffer was not timely and occurred after sentencing. He further reduced the sentence on one count from that handed down at the first sentencing hearing and ran some of the sentences concurrently. The new sentences were within the statutory limits.

We turn then to the statements made by Judge Hanshaw during the first Walls sentencing on February 4, 1998, and the public comments and ex parte meeting that same day. Canon 3E(1) does provide that a judge shall disqualify himself “in a proceeding in which the judge’s impartiality might reasonably be questioned....” However, we have held that recusal is a matter that is discretionary with the trial judge, and we will not reverse unless the trial judge abuses that discretion. Black v. Van Steenwyk, supra; Dolphin v. Wilson, supra; Reel v. State, supra. Plus, as already cited, we do not presume prejudice on the part of the trial judge. Wilson v. Neal, supra. On the contrary, we presume that the trial judge is impartial. Id. In the instant case, mere suspicion or conjecture that the judge’s heart and mind were so tainted by events that occurred more than a year earlier that he could not view the matter afresh on remand is not enough. We take as a given that a judge is able to preside over a matter on remand with a clean slate, absent proof or some indication to the contrary. The record in this matter simply does not support Walls’s contention that Judge Hanshaw was biased towards him at the resentencing. For all of these reasons, we hold that the trial judge did not abuse his discretion in declining to recuse in this matter.

There are two other issues raised by Walls for reversal. The first is that Judge Hanshaw’s failure to recuse for all the reasons already stated violated his due process rights. Walls, however, failed to obtain a ruling on this point from the trial judge and, thus, has waived the issue for purposes of appeal. Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997). Furthermore, Walls cites us to no authority in support of his constitutional argument. He simply makes the bald statement that his due process rights have been violated. That conclusory statement is not enough, and this court will not develop the constitutional issue for him. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998).

Walls finally contends that he should be able to withdraw his guilty and nolo contendere pleas due to bias on Judge Hanshaw’s part, because that equates to manifest injustice under Ark. R. Crim. P. 26(a)(1). Again, Walls presents this court with no convincing authority to support the contention that Judge Hanshaw abused his discretion in disallowing a withdrawal of his pleas. Ayers v. State, supra. And because we hold that there was no proof of bias so as to warrant recusal, Walls’s argument of manifest injustice is substantially undercut.

The record has been reviewed in his case for other reversible error pursuant to Ark. Sup. Ct. R. 4-3 (h), and none has been found.

Affirmed.


author: RAY THORNTON, Justice.

text:
    Joe RUDD, Administrator of the Estate of Earl James Routt, Deceased, and Carol Rudd, Holly Welzbacher, and Judson Routt v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT, Margie Davis, Gary Smith, and Gary Parsons
    00-128
    20 S.W.3d 310
    Supreme Court of Arkansas
    Opinion delivered June 29, 2000

      Chris Piazza, Judge;

      Andrew L. Clark, for appellant.

      Skokos, Bequette & Billingsley, P.A., by: Keith I. Billingsley, for appellees.
   RAY THORNTON, Justice.

Appellant Joe Rudd, personally stice. the estate of Earl Jameson Routt, deceased, and his family appeal an order of the Pulaski County Circuit Court granting summary judgment in favor of the appellees, the Pulaski County Special School District and its employees. Appellants instituted litigation against appellees, asserting theories of liability under the Arkansas Civil Rights Act and negligence. The trial court granted summary judgment, ruling that the Arkansas Civil Bights Act does not extend to the undisputed facts of this case, and that the school district was immune from suit to recover damages resulting from negligence. We affirm the trial court’s grant of summary judgment.

This case involves a shooting on a school bus in Jacksonville. At the time of the shooting in October 1996, the victim, Earl Routt, was a student at Jacksonville High School and regularly rode a school bus owned and operated by appellee, Pulaski County Special School District. Appellee Margie Davis typically drove the school bus on which Routt was a passenger.

WJ., another student at Jacksonville High School, also rode Davis’s school bus. WJ. and the victim frequendy had confrontations, and the driver had admonished both boys on previous occasions. During the previous year, while WJ. was enrolled as a student at Sylvan Hills Junior High School, his disciplinary record showed several offenses which included the following: expulsion from school for bringing a knife to school and assaulting another student with that knife on a school bus, an action which Sylvan Hills Junior High School Principal Sue Clark noted as a “substantial risk;” fighting in class; disorderly conduct; roughhousing in class; being a member of a gang that had violent initiation rites; and persistent disregard for school rules and authority. Ms. Clark testified in her deposition that the disciplinary records “do not follow a student from one school to another. . . . [T]he disciplinary records are closed, terminated, resolved, and we just follow the records retention policy for those.” These incidents occurred approximately seven months prior to the October shooting at Jacksonville High School. According to appellants, the records were kept in the ordinary course of business by officials of the school district which operates many schools, including those of Sylvan Hills and Jacksonville.

On October 9, 1996, WJ. brought a hand gun to Jacksonville High School and kept it in his locker. The school district had a policy which prohibited weapons on school property. On the day of the shooting, another student advised one or more of his teachers that he overheard a conversation concerning WJ., a gun, and something that was going to happen after school. According to the other student, two searches occurred on that day, but neither search turned up a weapon. That afternoon, while riding on the school bus, WJ. pulled out the hidden hand gun and fired it numerous times at the victim, who died as a result of the shooting.

Appellants brought the present action against appellees in Pulaski County Circuit Court, seeking compensation for the deprivation of Routt’s civil liberties. First, appellants claim that appellees violated the victim’s civil rights under the Arkansas Civil Rights Act by failing to adequately protect him while he was in their custody. Second, appellants alleged that appellees’ negligence was the sole and proximate cause of the violation of the victim’s civil rights leading to his death. Appellees responded that they were entitled to absolute immunity from tort liability in the performance of their official duties pursuant to Ark. Code Ann. § 21-9-301 (Repl. 1996).

After examining the pleadings, motions, briefs in support of the motions, and answers to interrogatories, the trial court granted defendant’s motion for summary judgment. We have stated that the moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as matter of law. Ark. R. Civ. P. 56; McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997).

I. Arkansas Civil Rights Act

Appellants argue that the school district had a special custodial relationship with the victim under the Arkansas Civil Rights Act, and that such relationship imposed a duty to protect the victim from a violation of his civil rights. Arkansas Code Annotated § 16-123-105 (Supp. 1999) defines civil rights offenses. The statute provides in pertinent part:

(a) Every person who, under color of any statute, ordinance, regulation, custom, or usage of this state or any of its political subdivisions subjects, or causes to be subjected, any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Arkansas Constitution shah be liable to the party injured in an action at law, a suit in equity, or other proper proceeding for redress.

Id. Arkansas Code' Annotated § 16-123-105 further provides that, when construing the above section, we may look for guidance to state and federal decisions that interpret the Federal Civil Rights Act of 1971, as amended and codified in 42 U.S.C. § 1983 (1994)(hereinafter “§ 1983”).

In the present case, both the perpetrator, WJ., and the victim were students attending the same high school and riding the same school bus. We first inquire into the relationship of the perpetrator, WJ., to the school district, to determine whether he was a state actor. Is there a custodial relationship between the school and WJ. requiring the school to restrict WJ.’s capability to do harm to others? If so, does the school district’s failure to maintain restraints on WJ. transform him into a state actor for the purpose of triggering the provisions of the Arkansas Civil Rights Act?

We have addressed similar questions as issues of first impression in Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998). In Shepherd, we traced recent federal cases in which the courts have held that a custodial relationship exists between the government and convicted felons in custody. See Martinez v. California, 444 U.S. 277 (1980) (holding that a plaintiff must satisfy three requirements in order to sustain a claim under § 1983 of the Federal Civil Rights Act); Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982) (holding that when the State puts an individual in a position of danger from the acts of a third party, the State may be liable under § 1983); Estate of Gilmore v. Buckley, 787 F.2d 714 (1st Cir. 1986) (holding that the State could be held Hable under § 1983 for the deprivation of an individual’s civil rights by a third party where the State has assumed a “special custodial or other relationship” with respect to the individual, or where the State has affirmatively placed an individual in a position of danger from third parties); Nishiyama v. Dickson County, Tenn., 814 F.2d 277 (6th Cir. 1987) (holding that where the state actors had, by established practice, facilitated the deprivation of individual’s constitutional rights by providing the third party with specific means and opportunity to commit the crime against the individual, liability would result under § 1983); Wells v. Walker, 852 F.2d 368 (8th Cir. 1988) (holding that when the state actors used an individual’s place of business for the purpose of releasing paroled prisoners, liability attaches under § 1983, as the state actors were said to have affirmatively placed the individual in an unique confrontational encounter with potentially dangerous persons).

In Shepherd, supra, the victim’s surviving spouse, individually and on behalf of the victim’s estate, filed an action against the county and sheriff for her own injuries and for the victim’s death, caused by an inmate who escaped from custody while receiving medical treatment at a clinic. The trial court ruled that the county and sheriff did not have a duty to protect the appellants. On appeal, we concluded that appellant had pleaded facts sufficient to support a determination that appellees had a duty to protect her and her husband from violence that befell them as the result of the actions of the prisoner who had escaped from custody. The facts in Shepherd demonstrated that appellees were aware that the inmate had violent tendencies, had previously attempted to escape from their custody, had inflicted injury upon himself and others, had a history of mental disorders for which he was receiving medication, and had expressed a desire to commit suicide by shooting himself the very day before the tragic accident involving the appellants. Accordingly, we reversed the trial court’s dismissal of the civil-rights claim and remanded the issue. Id.

The foregoing cases are distinguishable from the present litigation because in those cases, a custodial relationship existed between the State and a convicted felon. In Shepherd, the custodial relationship between the inmate and the State imposed a duty upon the State to protect third persons from injury inflicted by the inmate who escaped from custody. A prisoner is subject to restraints in order to protect the public, and the failure to maintain such restraints may result in liability for injuries to third persons under the Arkansas Civil Rights Act. Id.

Here, the relationship of a student to a school bus driver is not the same as that of a prisoner and his warden. It does not appear that the school district or the driver of the bus had police authority to deprive WJ. of his liberty interest by placing physical restraints upon his actions. While schools should foster a sense of safety for students in order to provide an environment in which students can learn, school officials should not be placed in a position where enforcing physical restraints takes precedence over their primary purpose of teaching and carrying out administrative duties. In the circumstances of this case, we conclude that WJ. was not a state actor, and that the school district’s failure to impose and maintain restraints upon him did not trigger the provisions of the Arkansas Civil Rights Act.

We next address the question whether, under the Arkansas Civil Rights Act, the school had a special relationship with the victim, thereby imposing a duty upon the school to protect him from violent acts by another student. When construing the Arkansas Civil Rights Act, according to Ark. Code Ann. § 16-123-105(c), we may look for guidance to federal decisions. In Dorothy v. Little Rock School District, 794 F. Supp. 1405 (E.D. Ark. 1992), the mother of a student in a high school community-based instruction program brought a § 1983 action against the Little Rock School District, Department of Human Services, and Centers for Youth and Families after her son was allegedly sexually molested and raped by a fellow student, a ward of the State, while attending a special school program.

Her son attended the school program when he was assaulted by Louis C., another student in the program. At the time, Louis C. was a ward of the Arkansas Department of Human Services (hereinafter “DHS”) and had been placed in a foster care program with the Centers for Youth and Families (hereinafter “Centers”). DHS and Centers were aware of Louis C.’s disposition for violence and sexually assaultive behavior, but decided to enroll Louis C. in the program without taking adequate precautions to see that other students, were protected from him. The school district also knew of Louis C.’s propensity for such behavior, but allowed the two boys to be left alone unsupervised, and the assault took place during that time. Brian B.’s mother filed an action against DHS, Centers, and the school district, alleging that defendants’ affirmative duty to protect arose from the special custodial relationship created by compulsory school attendance laws, and her son’s harm was caused by customs, practices, or policies of the governmental entities. Id.

The Dorothy court held that no custodial relationship existed between the victim and the state that was sufficient to impose on the state an affirmative duty to protect. Id. The district court rejected the existence of a custodial relationship based on the following analysis:

The Court, however, must reject the broad view of “custody” based on state compulsory attendance laws taken in the foregoing cases, and argued here by the plaintiff. That view would expand constitutional duties of care and protection to millions of schoolchildren. School officials would be subject to § 1983 liability anytime a child skinned his knee on the playground or was beat-up by the school bully, so long as the requisite “state of mind” was shown. More seriously, with the epidemic of deadly violence on many school campuses today, teachers would be constitutionally obliged to assume roles similar to policemen or even prison guards in protecting students from students. The precise contours of an affirmative duty to care and protect would be much more difficult to define in public schools.

Id. (emphasis added).

The Dorothy court pointed out that the United States Supreme Court has not extended the duty of protection beyond the cases of incarcerated prisoners and involuntarily committed mental patients. The district court reasoned that such a duty of protection should not extend to school officials because “teachers would be constitutionally obliged to assume roles similar to policemen or even prison guards in protecting students from other students.” Id. The district court concluded that no special relationship giving rise to a duty to protect against harm from private individuals existed by the State’s action of putting the two students in contact with one another, despite the State’s knowledge of Louis C.’s violent propensities. Id.

In the present case, it is contended that because of WJ.’s violent history at Sylvan Hills Junior High School, the Jacksonville High School officials should not have allowed the victim to be placed in a dangerous position. Although the school district had knowledge of WJ.’s propensities during his prior academic year at Sylvan Hills Junior High School, appellants presented no evidence of similar behavior while WJ. was enrolled at Jacksonville High School. We conclude that no special relationship was shown to exist between the victim and the state imposing a duty upon the state under the provisions of the Arkansas Civil Rights Act to protect the victim from harm.

II. Negligence

Appellants also presented a theory of negligence. The issue of negligence was raised in appellants’ jurisdictional statement, but the issue of recovery on the basis of negligence giving rise to liability for a tort was not raised in either of appellant’s points on appeal or in the argument section of their brief. Appellants do not appear to contest the grant of summary judgment with respect to the allegation of negligence.

Had appellants pursued the theory of recovery of damages for tort liability under a claim of negligence, they would not have prevailed because of appellees’ sovereign immunity. Under Ark. Code Ann. § 21-9-301, “[i]t is declared to be the public policy of the State of Arkansas that all. . . school districts. . . shall be immune from [tort] liability and from suit for damages except to the extent that they may be covered by liability insurance. No tort action shall lie against any such political subdivision because of the acts of its agents and employees.” Id.

Accordingly, we affirm the trial court’s grant of summary judgment.

Affirmed.


author: PER CURIAM.

text:
    Gregory DONALD v. STATE of Arkansas
    CR 00-677
    20 S.W.3d 331
    Supreme Court of Arkansas
    Opinion delivered June 29, 2000

      Gibson Law Office, by: Charles S. Gibson, for appellant.
    No response.
   PER CURIAM.

Appellant Gregory Donald has filed a motion RIAM. appeal. The record reflects that the judgment and commitment order was filed on November 9, 1999, but that the notice of appeal was not filed until January 18, 2000. Appellant’s counsel, Charles S. Gibson, has filed an affidavit pursuant to Ark. R. App. P. — Crim. 2(e) admitting responsibility for the failure to timely file the notice of appeal.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Pack v. State, 336 Ark. 268, 983 S.W.2d 126 (1999) (per curiam); Brewer v. State, 334 Ark. 234, 973 S.W.2d 482 (1998) (per curiam); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). A copy of this per curiam opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

Motion granted.


author: ANNABELLE CLINTON Imber, Justice.

text:
    Michael CRUDUP v. REGAL WARE, INC.; CNA Insurance Co.
    00-342
    20 S.W.3d 900
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000

      Davis, Mitchell & Davis, by: Gary Davis, for appellant.

      Laser, Wilson, Bufford & Watts, P.A., by: Frank B. Newell, for appellees.
   ANNABELLE CLINTON Imber, Justice.

This workers’ compensation stice. Petition for Review from an opinion of the Arkansas Court of Appeals. Appellees, Regal Ware and CNA Insurance Co., contend that the Court of Appeals erroneously reversed the decision of the Workers’ Compensation Commission. In Crudup v. Regal Ware, Inc., 69 Ark. App. 206, 11 S.W.2d 567 (2000), the Court of Appeals held that a medical opinion addressing the compensability of Mr. Crudup’s carpal tunnel syndrome satisfied the statutory requirement that such opinions be stated within a reasonable degree of medical certainty. " We disagree and reverse the decision of the Arkansas Court of Appeals. The decision of the Workers’ Compensation Commission is affirmed.

Michael Crudup has been employed by Regal Ware, Inc., since he graduated from high school in 1982. He works on the assembly lines of department 20 where cookware is packaged into boxes. On any given day, employees working on the lines in department 20 may be assigned to any of the four lines in the department. According to testimony, the four lines require substantially the same work, but lines three and four move at a slower pace than the others. The cookware that is packaged in line four is heavier than the other lines. On most days, Mr. Crudup testified that he worked on line one or line two. When working on lines one and two, Mr. Crudup was responsible for placing cardboard diecuts around the pans that came down the assembly line and putting them into boxes with the covers for the pans. Manipulating the diecuts required use of the wrists and knuckles to bend the cardboard into position.

In 1996, Mr. Crudup developed pain in his wrist while working on the lines. Regal Ware referred him to the company doctor, who discovered a ganglion cyst. The company accepted compensability and paid benefits for the surgery to remove the cyst. Mr. Crudup missed no work as a result of the cyst removal, although he was placed on lighter duty following the surgery. After he returned to regular duty, Mr. Crudup noticed renewed difficulty with his wrist, similar to what he had experienced before the surgery.

On April 4, 1997, Mr. Crudup informed his shift supervisor that he was unable to perform his assigned duties because of the swelling and pain in his right wrist, and he sought treatment independently from Dr. Harold Betton. Dr. Betton ordered electrodiagnostic studies that indicated mild carpal tunnel syndrome in Mr. Crudup’s right wrist. Dr. Betton then referred Mr. Crudup to Dr. Michael Moore. After unsuccessful conservative treatment, Dr. Moore performed carpal tunnel release surgery on Mr. Crudup’s wrist on July 2, 1997. Mr. Crudup returned to work on September 9, 1997, and has continued to work for Regal Ware since that time.

Mr. Crudup filed a workers’ compensation claim seeking temporary total disability benefits, medical benefits, and an attorney’s fee. Regal Ware controverted Mr. Crudup’s claim for compensation in its entirety. The administrative law judge denied compensation in an order filed on October 31, 1997, finding that Mr. Crudup failed to prove by a preponderance of the evidence that he suffered a compensable injury in the form of carpal tunnel syndrome while employed by Regal Ware. Mr. Crudup appealed the ALJ’s determination to the Workers’ Compensation Commission, which affirmed the ALJ in an opinion filed on May 15, 1998. In denying compensation, the Commission relied in part on its conclusion that Mr. Crudup failed to prove that his gradual onset injury was caused by rapid and repetitive motion pursuant to Ark. Code Ann. § 11-9-102(5) (A) (ii) (a) (Repl. 1996).

On May 21, 1998, this court held in Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998), that proof of rapid and repetitive motion is not necessary for a finding of compensability on a claim involving carpal tunnel syndrome. In light of this holding, Mr. Crudup promptly filed a motion for reconsideration of his claim before the Commission. The Commission granted his motion and vacated its May 15, 1998, opinion. Upon reconsideration, the Commission again denied compensation in an opinion filed on March 18, 1999. In its second opinion, the Commission held that Mr. Crudup failed to sustain his burden of proving that his carpal tunnel syndrome constituted (1) an aggravation or recurrence of the 1996 injury, or (2) a new gradual onset injury. Notably, the Commission found that Dr. Moore’s medical opinion addressing compensability was not given within a reasonable degree of medical certainty as required by Ark. Code Ann. § ll-9-102(16)(B) (Repl. 1996). This finding specifically pertained to a letter written by Dr. Moore on April 16, 1997, that contained the following report regarding a causal connection between Mr. Crudup’s work at Regal Ware and his injury:

I had a long discussion with Mr. Crudup regarding his medical condition as it related to work. He reports that he performs work which requires repetitive lifting and gripping. I cannot definitively state that the work he performs at Regal Ware is a primary cause of carpal tunnel syndrome, however, if Mr. Crudup does perform repetitive work, it is likely this activity could precipitate, or aggravate, his symptoms. Finally, if I could review Mr. Crudup’s work requirements, it would be easier to determine if the carpal tunnel syndrome could be related to this work activity.

The Arkansas Court of Appeals reversed the decision of the Commission, holding that it was not supported by substantial evidence. Crudup v. Regal Ware, Inc., 69 Ark. App. 206, 11 S.W.2d 567 (2000). In reaching this conclusion, the Court of Appeals determined that Mr. Crudup sustained a compensable injury arising out of and in the course of his employment and that Dr. Moore’s opinion addressing compensability was stated within a reasonable degree of medical certainty. Regal Ware petitioned this court for review of that determination, arguing that the Court of Appeals erred in holding that Dr. Moore’s opinion was stated with a reasonable degree of medical certainty. In light of our recent decision in Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000), we must agree.

When we grant a petition to review a case decided by the Court of Appeals, we review it as if it was filed originally in this court. Frances v. Gaylord Container Corp., supra; Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997). On appeal, this court will view the evidence in the light most favorable to the Commission’s decision and affirm when that decision is supported by substantial evidence. Ester v. National Home Ctrs, Inc., 335 Ark. 356, 981 S.W.2d 91 (1998). Substantial evidence exists if fair-minded persons could reach the same conclusion when considering the same facts. Id. Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial basis for the denial of relief. Frances v. Gaylord Container Corp., supra; McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997). We consider, therefore, if a substantial basis exists for the denial of benefits to Mr. Crudup under the facts presented to the Commission.

Mr. Crudup alleges three alternative theories of compensability regarding his carpal tunnel syndrome. He argues that the injury is either a recurrence of his 1996 compensable injury, an aggravation of the 1996 injury, or a new gradual onset injury. A recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). The only evidence which Mr. Crudup presented concerning a causal connection between the 1996 ganglion cyst injury and the 1997 carpal tunnel syndrome was his own testimony that the two injuries caused pain in the same area of 1 :s wrist and that he had been to see the company nurse and complained about pain in his right wrist several times after the cyst removal surgery in 1996. However, testimony by the company nurse, Brenda Fleming, directly contradicts Mr. Crudup’s testimony. Ms. Fleming testified that she did not recall Mr. Crudup coming to her office after the surgery to talk about his wrist. Furthermore, her files did not contain any documentation of such complaints after the 1996 surgery. It is within the Commission’s sole discretion to determine the credibility of each witness and the weight to be given to their testimony. General Elec. Railcar Repair Servs. v. Hardin, 62 Ark. App. 120, 969 S.W.2d 667 (1998); Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989). We therefore conclude that there is a substantial basis for the Commission’s ruling that Mr. Crudup failed to prove that his condition constituted a recurrence of the prior injury.

Mr. Crudup also contends that his carpal tunnel syndrome is an aggravation of the 1996 injury. An aggravation is a new injury resulting from an independent incident. Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). An aggravation, being a new injury with an independent cause, must meet the requirements for a compensable injury. Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998). The Commission found that Mr. Crudup failed to show an independent incident. In the absence of such proof and medical evidence linking Mr. Crudup’s carpal tunnel syndrome with his 1996 ganglion cyst injury, there is a substantial basis for the Commission’s ruling that Mr. Crudup failed to prove that his condition constituted an aggravation of the prior injury.

Finally, Mr. Crudup claims that he is entitled to compensation for a new gradual onset injury. To sustain this claim for compensation, Mr. Crudup is not required to prove that his carpal tunnel syndrome was caused by rapid and repetitive motion, but he must prove by a preponderance of the evidence that: (1) the injury arose out of and in the course of his employment; (2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death; and (3) the injury was a major cause of the disability or need for treatment. Ark. Code Ann. § U-9-102(5)(A)(ii) & (E)(ii) (Repl. 1996). Steveson v. Frolic Footwear, 70 Ark. App. 383, 20 S.W.3d 413 (2000); Kildow v. Baldwin Piano & Organ, supra. Finally, a compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(5) (D) (Repl. 1996); Kildow v. Baldwin Piano & Organ, supra.

In denying benefits, the Commission found that Mr. Crudup failed to prove that his injury was the major cause of his disability or need for treatment as required by Ark. Code Ann. § ll-9-102(5)(E)(ii) (Repl. 1996). We agree with the Court of Appeals that this finding was erroneous. Based upon the uncontroverted evidence in this case, Mr. Crudup’s injury, i.e., carpal tunnel syndrome, was the major cause of his need for treatment and release surgery and his resulting disability.

However, in addition to satisfying the “major cause” requirement, Mr. Crudup must prove a causal connection between his employment and the injury. Kildow v. Baldwin Piano & Organ, supra. Regal Ware argues that Mr. Crudup failed to prove by a preponderance of the evidence that his carpal tunnel syndrome was work-related, and that, as such, the decision of the Commission is supported by substantial evidence. We agree.

The only evidence that Mr. Crudup presénted to the Commission to support a causal relationship between his work and his carpal tunnel syndrome was the April 16, 1997, letter written .by his physician, Dr. Moore, which stated:

I cannot definitively state that the work he performs at Regal Ware is a primary cause of carpal tunnel syndrome, however, if Mr. Crudup does perform repetitive work, it is likely this activity could precipitate, or aggravate, his symptoms. Finally, if I could review Mr. Crudup’s work requirements, it would be easier to determine if the carpal tunnel syndrome could be related to this work activity.

(Emphasis added.) Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § ll-9-102(16)(B) (Repl. 1996). In Frances v. Gaylord Container Corp., we held that “expert opinions based upon ‘could,’ ‘may,’ or ‘possibly’ lack the definiteness required to meet the claimant’s burden to prove causation pursuant to § ll-9-102(16)(B).” 341 Ark. at 533, 20 S.W.3d at 284.

Dr. Moore’s medical opinion, like that which we rejected in Frances v. Gaylord Container, supra, is nothing more than a statement of theoretical possibility. He states only that Mr. Crudup’s working conditions could have caused his symptoms. We must therefore conclude that Dr. Moore’s opinion lacks the requisite definiteness required by § ll-9-102(16)(B). In fact, Dr. Moore’s statement that a review of Mr. Crudup’s work requirements would make it easier “to determine if the carpal tunnel syndrome could be related to this work activity” indicates that he had not yet formed an opinion regarding a causal connection. Despite the fact that Regal Ware provided Dr. Moore with a description of Mr. Crudup’s work activities, the record does not demonstrate that any more definite opinion was ever given by Dr. Moore. Consequently, we hold that Dr. Moore’s medical opinion was insufficient to support a finding of compensability.

The record in this case reflects no other evidence establishing a causal relationship between Mr. Crudup’s employment and his carpal tunnel syndrome. Although it was undisputed that his employment requires quick hand and wrist movements throughout the day, such evidence by itself was not sufficient to establish that his carpal tunnel syndrome condition was caused by his work. Likewise, because the burden of proof remained with Mr. Crudup, Regal Ware was not required to introduce evidence establishing that his carpal tunnel syndrome was not work-related. Under these circumstances, we hold that the Commission’s decision displays a substantial basis for the denial of benefits^ Accordingly, we reverse the Court of Appeals and affirm the decision of the Workers’ Compensation Commission.

Affirmed.

Glaze, J., not participating.