author: Robert H. Dudley, Justice.

text:
    Hubert LAWSON and MID-CONTINENT CASUALTY COMPANY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    86-252
    725 S.W.2d 543
    Supreme Court of Arkansas
    Opinion delivered March 9, 1987

      Hardin, Jesson & Dawson, by; Robert M. Honea, for appellants.

      Pryor, Robinson & Barry, by; Thomas B. Pryor, for appellee.
   Robert H. Dudley, Justice.

Hubert Lawson was injured in a single vehicle accident while riding on the bed of a truck owned and operated by his father, Donald Lawson. Hubert was the named insured in an automobile liability insurance policy issued by appellant, Mid-Continent Casualty Company. The policy described his automobile as the insured vehicle. Donald was the named insured in an automobile liability insurance policy issued by appellee, State Farm Automobile Mutual Insurance Company. The truck owned and operated by Donald at the time of Hubert’s injuries was described as the insured vehicle in appellee’s policy. Pursuant to the personal injury protection provision in the policy as required by the no-fault statute, Ark. Stat. Ann. § 66-4014 (Repl. 1980 and Supp. 1985), appellant Mid-Continent paid Hubert’s medical bills and lost wages. Mid-Continent then sued appellee State Farm, contending that under Ark. Stat. Ann. § 66-4016 (Repl. 1980), State Farm’s policy was the applicable policy for Hubert’s no-fault benefits since it was the insurer of the vehicle involved in the accident. The trial court granted a judgment on the pleadings pursuant to A.R.C.P. Rule 12(c), and held that the applicable policy for no-fault benefits was issued by the carrier for the injured party rather than by the carrier for the vehicle in which the injury occurred. We affirm.

Ark. Stat. Ann. § 66-4014, provides in pertinent part:

Every automobile liability insurance policy covering any private passenger motor vehicle . . . shall provide minimum . . . benefits ... to the named insured . . . [and] to passengers injured while occupying the insured motor vehicle . . . without regard to fault. . . .

Under the above quoted statement, both carriers were required to provide personal injury protection coverage for Hubert’s damages since Hubert was a “passenger injured while occupying the insured motor vehicle” under appellee State Farm’s policy and was a “named insured . . . injured in a motor vehicle accident” under appellant Mid-Continent’s policy. The quoted statute does not provide which company has the applicable policy. Both parties agree that the answer is found in Ark. Stat. Ann. § 66-4016.

The first sentence of § 66-4016, in the pertinent part, provides:

The coverages provided in ... § 66-4014 . . . shall apply only to occupants of the insured vehicle and to persons struck by the insured vehicle . . . , and to none other.

The above sentence limits the persons to whom coverage applies, but does not state which policy is the applicable policy. Appellant contends that language in Travelers Insurance Co. v. Estes, 283 Ark. 61, 670 S.W.2d 451 (1984) provides that the coverage applies to the insured vehicle “and no other.” That case is on a different issue, and we do not consider the language controlling.

The answer to the question, which policy is applicable, is found in the second, and final, sentence of § 66-4016. It provides:

Provided, however, said coverages shall not be . . . payable, if . . . coverages are afforded to said occupants ... [of the] insured vehicle. . . as a named insured . . . under another valid and collectible automobile insurance policy.

This sentence plainly means that when benefits are payable to a named insured, benefits “shall not be . . . payable” as a result of occupying an insured vehicle. Thus, in the event that more than one policy has personal injury protection coverage, the insured’s own policy shall provide primary coverage.

Affirmed.

Purtle, J., not participating.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Jeff BROWN v. STATE of Arkansas
    CR 86-29
    725 S.W.2d 544
    Supreme Court of Arkansas
    Opinion delivered March 9, 1987

      Hurst Law Office, by: Q. Byrum Hurst, Jr., for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Jeffery A. Brown has appealed from the denial of a Rule 37 petition.

Brown and Mark Henderson were charged with the capital felony murders of Steve and Diane Francis committed in connection with a robbery. Their bodies were found in the front seat of their car in Arkadelphia on the morning of January 31, 1982. Each had been shot in the back of the head. A few days later Brown and Henderson were arrested in North Little Rock on other charges. Attorneys Herman Hankins and John Thomas were appointed to represent Brown.

On April 1 Brown withdrew his plea of not guilty pursuant to a plea agreement by which Brown agreed to testify against Mark Henderson and the charges against Brown were reduced to murder in the first degree. The trial judge approved the agreement and accepted Brown’s plea of guilty. Brown was sentenced to life imprisonment.

In February of 1986 Brown filed a petition under A.R.Cr.P. Rule 37. He contends his plea of guilty was not voluntarily entered and that he did not receive competent representation. Following a hearing the trial court denied the petition and Brown has appealed. We affirm the trial court.

Brown’s first argument is that the trial court failed to make written findings and conclusions of law pursuant to Rule 37.3(a). However, after appellant’s brief was filed, the record was remanded to the trial court on the joint petition of the parties and written findings and conclusions were entered by the trial court on June 30, 1986, rendering that issue moot.

Another point of contention is that appellant was denied effective assistance of counsel in that Brown’s attorneys did not competently explain parole eligibility and therefore the plea was not voluntarily, knowingly and intelligently made. No authority is cited for the assertion that counsel must be able to explain parole eligibility and procedures, and we are aware of no such requirement. Too many variables exist, including the conduct of the defendant during incarceration.

In Haywood v. State, 288 Ark. 266, 704 S.W.2d 168 (1986) we held that a petitioner under Rule 37 may not collaterally attack the voluntary character of a guilty plea merely by demonstrating that some advice as to parole eligibility is erroneous. We said the issue was whether counsel’s advice was competent, taking into account the inherent uncertainty in advising a defendant about pleading guilty.

Hankins testified he was not well versed in parole procedures and made no assurances to Brown about parole, only that it would depend on his own actions while he was in the penitentiary. Thomas said Brown was told that prospects for parole would depend on policies of the Department of Correction and on his own behavior — that he possibly could be eligible anywhere from nine to fifteen years into his sentence. The trial court found that Brown’s plea of guilty was made knowingly and intelligently after being fully advised of his rights, and appellant has not shown that finding to be against the preponderance of the evidence. Williams v. State, 272 Ark. 98, 612 S.W.2d 115 (1981).

Appellant also maintains that his plea was coerced, that he was told by his counsel that since the victims were white and he was black he would be sentenced to the electric chair by an all white jury. We find no support for this argument anywhere in Brown’s testimony at the hearing on his petition, other than a statement that Hankins advised him to take life, or “they’re going to give you the electric chair.” But Hankins testified Brown was never told he was going to the electric chair and we cannot say the trial court’s finding was clearly against the preponderance of the evidence.

We do find testimony by Brown that when he entered his guilty plea and was asked by the circuit judge if he was pleading guilty because he was guilty and for no other reason, he said he was entering the plea not because he was guilty, but because he “was involved in that situation”:

Q: (By the prosecutor): You told Judge Lookadoo all that?
A: Yes, I said it because my lawyer stopped me and said, ‘He just means yes, Your honor.’ Because he asked me, are you pleaing guilty because you are guilty. I said, I’m pleaing guilty because the Court will find me guilty an accessory and not because I committed a charge. And, when I was in the process of saying this, my attorney, Mr. Hankins stopped me and said yes, he means yes, Your Honor. Now, you can draw your tapes out and replay them and I know I said this and I know he said that.

On finding that allegation in the proceedings on the Rule 37 petition, we ordered, pursuant to ARAP Rule 6(e), a transcript of the proceedings on the guilty plea. That material was promptly supplied and has been examined. We find nothing in those proceedings consistent with the allegation:

BY THE COURT:
Gentlemen, I understand from the prosecuting attorney’s office that Mr. Brown desires to change his plea.
BY MR. HANKINS:
That is correct, Your Honor.
BY THE COURT:
I’m assuming that you desire to withdraw his motion for transfer and change of venue.
BY MR. THOMAS:
That’s right.
BY MR. HANKINS:
That’s right, Your Honor, we will withdraw those at this time.
BY THE COURT:
Mr. Brown, do you understand what we’re saying about withdrawing your motions?
BY MR. BROWN:
Yes, sir.
BY THE COURT:
Have any threats or any promises been made to you to induce a plea?
BY MR. BROWN:
No, sir.
BY THE COURT:
I’m assuming that any plea made by you would be as a result of an agreed recommendation, is that correct?
BY MR. HANKINS:
Yes, sir, that’s correct.
BY MR. THOMAS:
(Nods his head yes)
BY MR. BROWN:
Yes.
BY THE COURT:
As a recommendation, Mr. Brown, I am not bound by it. As a plea bargain, I am bound by it, dependent upon presentence investigation and so forth. Has that been explained to you?
BY MR. BROWN:
Yes, sir.
BY THE COURT:
Did you prepare a statement in advance of a plea? BY MR. HANKINS:
No.
BY MR. THOMAS:
No.
BY THE COURT:
I believe, Mr. Arnold, the plea is to be taken on first degree?
BY MR. ARNOLD:
Yes, sir. It would be the recommendation of the State anticipating a plea that we would reduce to first degree murder.
BY THE COURT:
Is that the understanding?
BY MR. BROWN:
Yes.
BY MR. HANKINS:
That’s our understanding.
BY THE COURT:
All right, Mr. Brown, as to the charge, how do you plead?
BY MR. BROWN:
Guilty.
BY THE COURT:
Are you pleading guilty because you are guilty.
BY MR. BROWN:
Well, yes.
BY THE COURT:
No, don’t say well, yes. Either you’re guilty or you’re not guilty.
BY MR. BROWN:
Yes.
BY THE COURT:
Are you pleading guilty because you are guilty? •
BY MR. BROWN:
Yes, sir.
BY THE COURT:
Is there any doubt in your mind?
BY MR. BROWN:
No, sir.
BY THE COURT:
Gentlemen, do you all concur in his plea?
BY MR. THOMAS:
Yes, we do, Your Honor.
BY MR. HANKINS:
We do.

Appellant’s final point concerns a statement given by Brown shortly after his arrest in North Little Rock. The statement denied any involvement by Brown in the murder of Steve and Diane Francis except being present in the car when Henderson shot them both. The incriminating part of the statement was that Brown acknowledged that before he and Henderson got into the car Henderson had told him he planned to kill Steve Francis to get his marijuana. Brown maintains he did not take the remark seriously.

The contention now made is that Brown’s counsel should have moved to suppress the statement because it was induced by threats and intimidation. However, the officers denied any coercion or threats and the trial court’s factual findings rejected that contention. Core v. State, 265 Ark. 409, 598 S.W.2d 581 (1979). Hankins testified that Brown was talking to anybody who would listen and it appeared there was “absolutely no grounds” for suppression of Brown’s statement.

The burden Brown assumes in alleging ineffective assistance is that counsel’s conduct so undermined the adversarial process that it cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 688 (1984). Under the law we are constrained to indulge a strong presumption that the conduct of Hankins and Thomas in Brown’s defense came within a wide range of reasonable professional competence. Strickland v. Washington, supra. Brown’s bare allegation that they should have moved to suppress his statement is not sufficient to defeat that presumption. In this connection we note that Brown’s counsel filed a number of motions in his behalf: a motion for severance, a motion for discovery, a motion to transfer to juvenile court, a motion for a change of venue with affidavits and exhibits, and a motion for a psychiatric examination. There is no reason to assume counsel would not have filed a motion to suppress if they believe that grounds existed.

Brown insists he was free of any culpable intent in this unusual case. But it is clear the state expected to make a case of capital felony murder against him by showing that he knew ahead of time that Henderson intended to kill Steve Francis, was present when the murders were committed, and that he and Henderson left the community together promptly after the crimes were committed. We cannot say that Brown was ill-advised to choose a life sentence in preference to the alternatives.

Affirmed.

Hickman, J., not participating.

       Henderson was later tried, convicted and sentenced to life without parole.


author: Steele Hays, Justice. Robert H. Dudley, Justice,

text:
    James W. COTHRAN v. STATE of Arkansas
    CR 87-21
    725 S.W.2d 548
    Supreme Court of Arkansas
    Opinion delivered March 9, 1987

      James W. Haddock, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

James Cothran appeals from a conviction for driving while intoxicated. On August 22, 1985 Cothran drove an 18-wheeler into the Fairview Weight Station near Lake Village, Arkansas and entered the office to pay the fuel tax. Officer Sledge of the Arkansas Highway Police, Weights and Scales Division, said he smelled alcohol when Cothran spoke to him. After observing Cothran’s walk, slurred speech, odor and mannerisms, he charged him with driving while intoxicated. At the jail Cothran was given a breathalyzer test and his blood alcohol content registered .16%. At trial Cothran objected to the introduction of the breathalyzer test because the machine did not have a visual digital readout. He renews the argument on appeal.

Cothran relies on Act 533 of 1985 (Ark. Stat. Ann. § 75-1046 [Supp. 1985]), which provides that all instruments used to determine intoxication shall be equipped with visual digital display and automatic readout in order for the results to be admissible in any criminal or civil proceeding. Since the machine in this case, referred to as a type 900A, was not equipped with a digital readout, Cothran submits the test result was not admissible against him. We disagree.

Appellant’s argument completely ignores the provisions of Section 3 which defers compliance under the act:

All law enforcement agencies which conduct blood alcohol testing shall be in full compliance with the provisions of this act within four years after the effective date.

In construing Act 533 we strive to determine the legislative intent. Steele v. Murphy, Trustee, 279 Ark. 235, 650 S.W.2d 573 (1983). We think it clear beyond any reasonable argument that the legislature intended to provide a time lag between the effective date of the act (June 28,1985) and full compliance. Two reasons are plain: to allow law enforcement agencies throughout the state time to convert from machines currently in use to machines capable of digital display and automatic readout, given whatever expense and acquisition problems might accompany that conversion, and second, and equally important, to allow for the adoption of essential rules and regulations by the State Board of Health to carry out the purposes of the act. Section 2 expressly addresses this aspect of the act’s scope. It reads:

The State Board of Health is authorized to adopt appropriate rules and regulations to carry out the intent and purposes of this Act, and only machines or instruments approved by the Board as meeting the requirements of this Act and regulations of the Board shall be used for making such breath analysis for determining blood alcohol content. The State Department of Health is hereby specifically authorized to limit by its rules the types (models) of testing devices which may be approved for use in Arkansas for the purposes set forth in this Act. The approved types (models) will be specified by manufacturer’s name and model number.

The primary rule of statutory construction is to give effect to the perceived intent of the legislature, drawn from the entire act, in a manner consistent with common sense and the avoidance of absurd consequences resulting from too literal an interpretation. Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985); Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985); Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980). The result reached in this case is, we believe, consistent with those principles, as any other interpretation would effectively vitiate Section 3 of the act.

Affirmed.

Purtle, J., and Dudley, J., dissent.

Robert H. Dudley, Justice,

dissenting. The act at issue went into effect on June 28,1985. The first section of the act, § 75-1046.1, provides that every machine which performs a breath analysis of blood alcohol content must do so automatically, without adjustment by some operator, and the result of the analysis must be shown by a visible digital display on the machine and also by an automatic readout. Obviously, the legislature was concerned about injustices which might have occurred or could occur by an “adjustment” to a breath analysis machine or by concealed results. In order to prevent any more injustices the legislature enacted an exclusionary rule for court proceedings which provides that “any such breath analysis made by . . .a machine. . . that does not conform [to the new standards] . . . shall be inadmissible in any criminal or civil proceeding." (Emphasis added.) The statute is written in present tense and mandatory terms. The exclusionary rule does not contain any language, or even the slightest suggestion, that it is not applicable in court proceedings for four years. The majority opinion simply ignores the present tense and mandatory language of the statute and, by use of rules of statutory construction, holds that the exclusionary rule is not effective until 1989. The majority opinion accomplishes this feat by relying upon a part of the act which is applicable to law enforcement agencies, § 75-1046.3, as distinguished from the part applicable to courts, §75-1046.1. Contrary to common sense, the majority implies a legislative intent to allow the unwanted injustices to continue over the next four years. The act was effective on June 28,1985, and if any part of the entire act is to be given effect before 1989, the required exclusionary rule of evidence in court proceedings must be held effective now.

In accordance with Ark. Stat. Ann. § 75-1046.3, law enforcement agencies are authorized to use the outdated machines, which require an adjustment by an operator and can give a concealed result, for four years from the effective date of the act. They simply cannot have the result from an outdated machine admitted in evidence. Ark. Stat. Ann. § 75-1046.3 provides:

Time for Compliance
All law enforcement agencies which conduct blood alcohol testing shall be in full compliance with the provisions of this Act [§§ 75-1046.1 — 75-1046.3] within four years after the effective date [June 28,1985]. [Acts 1985, No. 533, § 3, p___]

The legislative reasoning has sound basis. The act does not prevent law enforcement agencies from using the outdated machines for screening purposes so that the more costly and intrusive methods such as blood tests would be utilized only when there was a positive result. At the end of the four year period, the use of the outdated machines, even for that limited purpose, would not be permitted by the statute.

The majority, in an attempt to shore-up the opinion, state that the four year delay is to give the State Board of Health time to adopt rules and regulations. The obvious response is that four years are not necessary to draft a regulation and, more importantly, the State Board of Health does not make regulations to implement an exclusionary rule of evidence.

I regret that I am unable to convince the majority of the error in their interpretation of the act.

Purtle, J., joins in this dissent.


author: David Newbern, Justice. Darrell Hickman, Justice,

text:
    William P. CLARK v. STATE of Arkansas
    CR 86-142
    725 S.W.2d 550
    Supreme Court of Arkansas
    Opinion delivered March 9, 1987

      Raymond Harrill, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant was charged with terroristic threatening. Without the knowledge of his counsel and without bringing it to the attention of the judge, Honorable Floyd Lofton, the appellant filed a motion asking Judge Lofton to recuse. In the motion the appellant accused Judge Lofton of criminal misconduct. Upon learning of the motion and its contents, Judge Lofton ordered the appellant to show cause why he should not be held in contempt. The appellant was convicted of criminal contempt, and we reversed, holding Judge Lofton should have recused from the contempt proceeding because he was obviously embroiled in a personal dispute with the appellant. Clark v. State, 287 Ark. 281, 697 S.W.2d 895 (1985). We remanded the case for a hearing before a different judge. In our first opinion we said:

The appellant’s final argument is that the mere filing of the motion to recuse was not contempt. While this situation could fit within the perimeters of our definition of criminal con tempt, see Ex parte Stroud, 167 Ark. 331, 268 S.W. 13 (1925), the underlying factual question will have to be resolved by the trial court upon remand.
[287 Ark. at 227, 697 S.W.2d at 898.]

A hearing was held before Judge Jack Lessenberry, who found the appellant guilty of criminal contempt. We reverse and dismiss because the facts found in the second hearing are not sufficient to form the basis of the contempt conviction.

The motion which formed the basis of the contempt charge accused Judge Lofton of a number of things including illegally incarcerating the appellant, conspiring with a doctor and deputy prosecutor to have the appellant adjudged mentally incompetent for the purpose of harassment and intimidation, depriving the appellant of the right to defend himself by appointing a public defender, sending public defenders to tell the appellant the judge would put him in a mental institution unless he allowed the public defenders to represent him, unprofessionally slandering the appellant by accusing him of “not playing with a full deck” and being “thick skulled,” committing witness bribery as defined by Ark. Stat. Ann. § 41-2608(1 )(a)(iii), making false statements, and intimidating witnesses.

In Judge Lessenberry’s hearing the record of which is before us, no evidence showed that the motion was in any way published by the appellant or presented in such a way as to be disruptive of proceedings before the court or in such a way as to incite disruption or disrespect for the court by others. The motion contained no profanity and was phrased in flat, mostly legalistic language. The motion concluded by saying the appellant planned, as soon as reasonably possible, to have attorneys of his choice present the evidence to the prosecutor “in the proper legal manner” so that charges would be brought against Judge Lofton.

Although Ex Parte Stroud, supra, discussed the subject of a contempt citation brought about by repetitious motions designed to vex the court or delay proceedings, we have no Arkansas case dealing with the question whether the filing of a motion like the one in this case may be the basis of contempt. In Freeman v. State, 188 Ark. 1058, 69 S.W.2d 267 (1934), we were confronted with, in another context, the question whether written words constituted criminal contempt. There, the Pine Bluff Commercial could have been interpreted as interfering in a matter before the court. We found it was also susceptible of being a mere criticism of the law being applied. We held the editor and publisher were purged of the contempt by their affidavits disclaiming any intention to interfere with or degrade the court. A published newspaper article is, of course, vastly different from a motion, stated in legal terms, filed with the court.

There is, however, this language in Freeman v. State, supra:

In order to preserve the dignity and efficiency of courts, it is essential, among other things, that no conduct be permitted which is either a direct or a consequential contempt — a direct contempt which openly insults the court or infringes on its power committed in the presence of the presiding judges, or consequential, which, without open insult or direct opposition, plainly tends to create an universal disregard of their authority. In the latter class are included any speaking or writing contemptuously of the court or judges acting in their judicial capacity; or by printing false accounts of causes then pending before the court; or printing articles with respect thereto which would be calculated to influence, intimidate, impede, embarrass or obstruct the courts in the due administration of justice. [188 Ark. at 1064; 69 S.W.2d at 269.]

From the perspective of this opinion the most troublesome words are, “. . . any speaking or writing contemptuously of the court or judges acting in their judicial capacity . . .” By using the word “contemptuously,” we seemed to be saying that “contempt is .contempt.” If we meant “any speaking or writing derogatory of the court or judges acting in their judicial capacity,” we surely must have meant that such conduct be held to be contempt when the speaking or writing was published in such a manner as to “influence, intimidate, impede, embarrass, or obstruct the courts.”

In Re Larry Little, 404 U.S. 553 (1972), is a per curiam opinion in which the Supreme Court eloquently stated the law of criminal contempt. The case was one in which the petitioner, charged in a North Carolina state court with a crime, appeared and moved for a continuance to a date when his retained counsel would be available. The motion was denied, and the trial was held. In his summation before the trial judge, the petitioner accused the judge in open court of bias and prejudice, and he said he was being held a “political prisoner.” He was held in contempt. Reversing the conviction the Supreme Court said:

There is no indication, and the State does not argue, that petitioner’s statements were uttered in a boisterous tone or in any wise actually disrupted the court proceeding. Therefore, “The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil. . . . [T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.” Craig v. Harney, 331 U.S. 367, 376 (1947). “Trial courts. . .must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.’’ Brown v. United States, 356 U.S. 148, 153 (1958).
The reversal of this conviction is necessarily required under our holding in Holt v. Virginia, 381 U.S. 131 (1965). There attorneys filed motions that the trial judge recuse himself and for a change of venue, alleging that the judge was biased. The motion for change of venue alleged that the judge intimidated and harassed the attorneys’ client. The court adjudged the attorneys in contempt for filing these motions. We reversed for reasons also applicable here:
“It is not charged that petitioners here disobeyed any valid court order, talked loudly, acted boisterously, or attempted to prevent the judge or any other officer of the court from carrying on his court duties. Their convictions rest on nothing whatever except allegations made in motions for change of venue and disqualification of Judge Holladay because of alleged bias on his part.” Id., at 136. [404 U.S. at 555-556]

In Holt v. Virginia, the motion which accused the judge of intimidation and harassment was not only filed, but read to the judge in open court. In addition to the language quoted above, Mr. Justice Black noted that a litigant must be allowed to file motions which present claims and raise relevant issues. “[T]he words used in the motions were plain English, in no way offensive in themselves, and wholly appropriate to charge bias ... of the presiding judge.” 381 U.S. at 131.

The only distinguishing factor which might remove the case before us now from the rule of Holt v. Virginia, supra, is that Judge Lofton was charged by the appellant with criminal misconduct. All of those charges were, however, relevant to the appellant’s contention that Judge Lofton was biased in his case.

The division of our court over this case is indicative of its difficulty and the empathy we feel with a trial judge confronted with the situation the appellant created. Members of this court must, however, sometimes subdue even their strongest feelings in the interest of deciding cases not for the moment but for the long run. The dissenting opinion shows that the appellant was, before he filed the motion at issue here, twice found to be in contempt in the tortured course of the proceedings before Judge Lofton. Those rulings and the facts surrounding them are not, however, what is on appeal now. The dissenting opinion also misconstrues this opinion as holding the motion was “legitimate.” We take no position on its “legitimacy;” we say only that it was not contemptuous.

The members of the majority for whom this opinion speaks do not take lightly or suffer gladly allegations of criminal misconduct directed at a judge. Chances are this conviction would have been affirmed had there been any disruption or open insult or degrading comment whatsoever accompanying the filing of the motion. On the other hand, we see the criminal contempt power as an awesome weapon in the court’s arsenal. Even, and perhaps especially, in cases where the allegations are made by a person the judge has concluded to be mentally unbalanced, the contempt power must not be used to immunize judges from allegations of criminal misconduct which are not presented in a manner constituting a disruption of the court’s proceedings or an open affront and imminent peril to the institution or its dignity. It must never be used to place judges above the law. The vital public respect for and faith in judicial institutions will, we believe, be enhanced by the extent to which we are able to solve our problems with patience as opposed to pique, holding our power in reserve.

Reversed and dismissed.

Hickman, Dudley, and Glaze, JJ., dissent.

Darrell Hickman, Justice,

dissenting. This is the second time we have reviewed the criminal contempt of William P. Clark. Before, we found Circuit Judge Floyd Lofton should not have heard the matter because he was too close to the problem. So it was remanded for a different judge to determine the underlying facts.

This time we do not like the underlying facts the judge found. We also do not like the law we cited, so different law and different cases are cited as justification to find Clark not guilty of contempt. In so doing the majority has viewed every consideration in favor of Clark and every inference against the state, casually dismissing or ignoring any facts that were before the court, disregarding all the testimony of the witnesses, including that of Judge Lofton and Clark; and most importantly, the majority does not review two transcripts of the trials which led to this contempt citation. They demonstrate without question that Clark, from the beginning, deliberately and intentionally sought to defy, ignore, frustrate, and completely disrupt the judicial process and malign the trial judge and the circuit court.

The pleading or document filed by Clark is defended by the majority as a legitimate legal motion; two United States Supreme Court decisions are relied upon which hold no criminal contempt could be found when legitimate pleadings are filed. If this case is reviewed, as it should be, and a review is made of what happened, what the facts are, and what the trial court found, the majority’s decision can only be kindly characterized as wrong.

First, this so-called motion is styled “DEFENDANT, WILLIAM P. CLARK, IN PROPRIA PERSONA, HEREBY DEMANDS JUDGE FLOYD J. LOFTON, RECUSE HIMSELF FROM THIS CASE FOR THE FOLLOWING REASONS, ALL UNCONTESTED FACTS.” There follows a litany of criminal charges, 12 in number, against Judge Lofton, including witness bribery, false material statements, and intimidating a witness. This motion was admittedly not filed to ask Judge Lofton to recuse, it was filed without Clark’s counsel’s knowledge, and only discovered by Lofton after Clark’s trial for terroristic threatening. (He was found guilty.) It was filed by Clark to make criminal charges against Lofton to impugn his and the court’s integrity. If Judge Lofton was guilty of such conduct, he should be impeached; if not, Clark should be found guilty of contempt and punished. Lofton had to call Clark’s hand — the criminal charges could not be ignored. They were a direct intentional act of contempt of the judge and the court. The state is the other party to this suit, not Lofton or his court.

Clark’s testimony about this document reads: “. . .1 won’t apologize for this. Because I’m not sorry. Judge Lofton finds my motion offensive. And to him it probably is because it questions his integrity. But, as far as I am concerned that’s the reason that I filed the motion because he doesn’t have any integrity.”

When Judge Lessenberry questioned Clark at one point, Clark responded: “Well, you’re just like Judge Lofton, you intimidate . . .” He goes on to explain his version of what happened in his two trials:

But no where in the testimony will you find that I got mad, accused him of not playing with a full deck or anything like that. Or cursed him. I always conducted myself as a gentleman in a court of law. Even though I am not a lawyer. And I feel like that’s the way to get justice. You will eventually if you run across a personality conflict with a Judge like Judge Lofton and I have, you will eventually get somebody [to] appeal it. And I have appealed the cases.

Compare this statement by Clark with the one he made at the second hearing on the terroristic threatening charge held on January 3, 1985. It begins with Judge Lofton saying:

What’s the status of other cases?
Clark [acting pro se]: Oh, I thought I had delivered the appeal to you, Judge. [Referring to his other case.]
Judge Lofton: You may have. I don’t read those. And you can keep it. I don’t read it.
Clark: Well, you’ve got to keep it. You’ve got to keep a copy according to — You know, you can shitcan it or whatever you want to do.

But I’m getting ahead of myself. This matter evidently began as a divorce case. That personal matter spilled over into criminal court. Two separate criminal charges were involved: Clark’s failure to support his children and threatening to kill a lawyer acting on behalf of his children in the divorce case. Lofton first met Clark when Clark appealed his criminal conviction for non-support of his children to circuit court. It began on October 12, 1983, with criminal case No. 83-1986, State versus Clark:

Judge Lofton: And who are you, sir?
Clark: I’m William P. Clark.
Judge Lofton: You are Mr. Clark. What are we doing with some more of these Chancery things?
Mr. Douglass: This is an appeal from Little Rock Municipal Court.
Judge Lofton: Are you an attorney as well?
Clark: No, I am not, your Honor, I’m representing myself pro se. I’ve done this several times in Municipal Court and in Chancery Court.
Judge Lofton: You know what you’re charged with, don’t you?
Clark: Yes, I do, your Honor.
* * *
Clark: I am pleading not guilty and request a jury trial.
Judge Lofton: Six man or twelve man?
Clark: Twelve.
* * *
Judge Lofton: Okay. I don’t know anything about this thing, Mr. Clark, but just by way — I’ll have an omnibus hearing and I’ll want to hear what your defense is. Why don’t you tell me what your defense is now.
Clark: Your Honor, I intend to prove bribery, perjury and fraud against Lee Munson, Judith Rogers, two attorneys, Winton McGinnis and Robert Newcomb. I have been deprived of all my assets. I have been harassed continually for almost three years now. I have been illegally incarcerated in the County Jail twice and in the State Mental Institution once.
Judge Lofton: What was the deal out at the State Hospital?
Clark: Well, Lee said that — What happened, my children have run away from home seventeen times during this period of time. They are now ten and six.
Judge Lofton: But what did the State Hospital say when you were out there?
Clark:. . .so, when I de-committed myself from the State Hospital having proven that there was nothing mentally wrong with me, Lee was mad and that’s the problem. He was mad because I told him I intended to appeal and file charges.
* * *
Clark: If I had not been deprived of everything that I had earned over the past twenty years, your Honor, I could afford an attorney.
Judge Lofton: Well, I will appoint you one if you can’t afford one. You’re entitled to one because, if you’re guilty of this, you may go to jail.
Clark: Well, your Honor, I understand that I may go to jail.
Judge Lofton: I will appoint you one and it won’t cost you a dime.
Clark: I can appreciate that, your Honor, but I — Well, you may appoint one but I may or may not use him.
Judge Lofton: Do you want one? You’re going to need one. If you don’t want one, it doesn’t make any difference to me. . . .If you want one, you let me know. . . .Now, I’m going to put down here that you’re going to represent yourself and you’re on notice of all the difficulties you’ve got. But one is available and I’ll appoint him and it won’t cost you a dime. You let me know.
Clark: You can go ahead and appoint him.
Judge Lofton: . . . Bill [a lawyer], Mr. Clark wants to represent himself and I’m going to let him do that as far as he can. You heard some of what he wants. He’s got an uphill battle. Just make yourself available to him.
Clark: Thank you, your honor.

On November 22,1983, the second hearing was held before Judge Lofton. Deputy Public Defender Tom O’Hearn filed a motion to be relieved as Clark’s counsel:

Judge Lofton: So, you want to proceed on your own?
Clark: I would like to, your Honor.
Judge Lofton: Well, you’re foolish but let me tell you something. I’m going to let you do it but it’s going to be almost impossible for me to appear to be fair because every time you get up and open your mouth he’s going to object. And every time it’s going to be proper and I’m going to have to sustain it because you don’t know how to ask questions and because you’ll ask them improperly and because in asking questions you will have a tendency to testify and, in so doing, you will open up things that he can’t talk about unless you open them up and you will open them up. So, while it’s extremely foolish — . . . . I will let you do this but I want to warn you you are extremely foolish. It doesn’t make any difference to me. I don’t care whether you get a year or a Thousand Dollars or get acquitted. It doesn’t make any difference to me. The only thing I’m concerned about is it is extremely difficult for me to appear fair.
Clark: I understand what you’re saying, your Honor. . . . Before we go any further, the reason that I would like to represent myself, quite frankly, is that I intend to call approximately twenty-eight witnesses to prove that the entire divorce decree and the child support that results from it is a direct result of bribery, perjury, fraud, filing of false legal documents by attorneys, which they have already admitted in Court that they have done this.

Clark asked Judge Lofton to recuse because he would not let Clark present his case the way he wanted.

Judge Lofton: That will be denied because I’m going to follow the law and there’s not a judge in the State that’s going to follow the law that would do any different than I do.

Judge Lofton inquired why the case was not in chancery court. Clark had been convicted in municipal court by Judge Dishongh of non-support offering no defense. When asked what his defense would be, he responded:

Clark: That the entire divorce decree and the child support that went with it is in fact a fraud.
Judge Lofton: Did you appeal that down there?
Clark: Your Honor, I have attempted to appeal on numerous occasions. However, I was for the longest period of time, almost three years, unable to get a divorce decree.
Judge Lofton: Why? * * *
Clark: You know, I — He [Judge Munson] was supposed to state the findings and facts — findings of fact and conclusions of law as to what grounds for divorce, what were the grounds for divorce, which did not exist. And he has admitted out of Court — And I can prove it, that he stated after the hearing was over that there were no grounds for divorce. * * *
Judge Lofton: Well, why didn’t you appeal it when filed it? [sic] He’s granted a divorce now.
Clark: Your Honor — Yes, he granted a divorce technically.
* * *
Clark: It is under appeal, your Honor. The entire matter is under appeal and I intend to see that Lee Munson goes to the Federal Pen if I can, if it takes me until I’m ninety-five years old. * * *
Judge Lofton: It’s so foolish, you know. If you would just take your lawyer, he could have corrected all of that. If what you say is true, he could have corrected it in ninety days.
Clark: Your Honor, I assure we attempted to correct it. Thus far, I have been illegally incarcerated in the State Mental Institution.
Judge Lofton: Well, I’ve got questions about the illegality of that.
Clark: Well, I assure you there was no hearing on it. Everybody admits.
Judge Lofton: You know, you’re not showing very good judgment today. Now, I’m not saying you’re crazy but the fact that you don’t take that lawyer shows that you’re not playing with a full deck.
Clark: Well, your Honor, in that case I’d like for you to recuse yourself.
Judge Lofton: Why? Why?
Clark: Because of the statement you just made.
Judge Lofton: I’m not going to find you guilty of being crazy or not crazy. I’m just saying that because you don’t accept a lawyer that’s appointed for you you’re not playing with a full deck.
Clark: Well, your Honor, thus far, I’ve done reasonably well representing myself . . .
* * *

The third hearing was held December 16,1983, an omnibus hearing before the trial.

Clark: I assure you, your Honor, that I’m not trying to be a problem child. I’m trying to get some relief for my children and myself.
State’s attorney: That’s the problem—
Judge Lofton: I can’t buy that, Bill, I cannot buy that because you’re going at it in an entirely improper way.
Clark: I have no alternative.
Judge Lofton: And you have refused all the help that this Court has offered you to do that. So, I don’t buy that. But that’s all right. If you want to be a problem child, you know, it doesn’t bother me. I get paid the same whether it’s a problem child or not. So, it doesn’t bother me. I just don’t believe you.
Clark: I understand.

Judge Lofton explained exactly what Clark was to do for the next hearing on February 9, 1984.

Judge Lofton: Now, if you’ve got a problem with it and you want a subpoena duces tecum, which is a subpoena for records or something like that, then you must type that and present it in form and present it to me for my approval. And I will discuss what you want and why you want it and so on and so forth. I may or may not do it. I may ask you to put in form and show me some law of why you want it before I rule on it. But on the 9th of February that is your day and you may present to me at that time any and all information and/or witnesses and you may have them here at 9:30 and we will have a reporter and you may call them as witnesses and you may ask them whatever you want to ask them at trial. And, if there are no objections, then fine. We’ll go right along. If there are objections, I’ll rule on them and we’ll get that out of the way. Now, if you want a copy of the transcript down there, as far as I know, you can pay for it and get it. If you can’t pay for it and can’t afford to pay for it, that’s another matter I’ll have to discuss with you and you will have to file the appropriate document showing that you’re an indigent and affidavits and such and so on and so forth and get a subpoena duces tecum for the production of that as an indigent and show me some law that what is in there is relevant and material to this proceeding. And, if you can do it, fine. If you can’t, sorry about that.
Clark: I understand.
* * *
Judge Lofton: If I order that transcript down there and they can’t get it out, then I’ll have to pass this case to get it done. But I want it, you know, started immediately because if there’s any way, shape, form or fashion this can be done on the 9th of February, I intend to do it.

At the fourth hearing on February 7,1984, the following colloquy occurred:

Judge Lofton: What are we here for?
Clark: Your Honor, I’m here. I received a letter from the Court to appear. * * *
Court Reporter: You were advised by the Clerk or somebody that he had issued subpoenas only for Friday and not for the omnibus hearing Thursday. * * *
State’s attorney: If the Court will recall, Mr. Clark is representing himself pro se. At a previous omnibus hearing, when you inquired as to the nature of his defense, he indicated that he was going to attempt to collaterally attack the validity of the divorce decree and child custody order. We had some discussion on that, that was probably inadmissible material.
The Court instructed Mr. Clark and set on the docket and set out a notice that we were to have a proffer date of February the 9th at 1:30 for him, since he was representing himself pro se, to subpoena these witnesses to proffer their testimony so that the Court could determine both the relevancy and the materiality of their testimony.
I’ve been monitoring the Circuit Court’s file. He has issued in excess of twenty subpoenas, all of them for the tenth, none of them for the ninth. He’s in a position now that any subpoenas issued for the ninth are not valid because of the three day rule. So, he cannot get his witnesses here to proffer them.
He also has violated 43-2002, that to exceed six witnesses on a misdemeanor case, he shall first make a — file a verified application to the Court. This application shall contain a statement of the facts which the party expects to prove by each of the witnesses. And it has to be a fact that could not already have been proved by one of the witnesses within the first six.
The Court then has to grant him the authority to issue the other subpoenas. He’s not done that.
He also has issued subpoenas for his minor children. Those subpoenas have not been properly served. They’ve been served on an adult who is not a guardian of the children. Mr. Robert Newcomb is here. He is attorney for the children and represents them as— * * *
Judge Lofton: Okay. You understood that I ordered you to have them subpoenaed for the ninth for a pre-trial hearing, a pre-trial trial.
Clark: Well, your Honor, it is my—
Judge Lofton: Did you understand that?
Clark: It is my intention not to present the evidence at an omnibus hearing. I believe I have the right to either present or not present certain defenses. Am I correct?
Judge Lofton: No. That’s not so. So, you are violating the Court’s order. * * * And I told you expressly to get them here. Y ou are telling me now that you have elected not to do that. And that’s fine. You may do that. But you shouldn’t have.

Clark was found in contempt and the court observed:

Mr. Clark, I have been trying to get you to accept an attorney and I have been trying to do everything that is humanly possible for you in this case since I got it. You have ignored it. You have rejected it. You have refused it. You have been obstinate. You have been arrogant. You have been impudent. And you have done nothing but to try to obstruct the trial of this case.
Notwithstanding that fact, I am still bound and I am going to do everything that I can to help you. And you can refuse it. You can ignore it. You can do whatever you want to but I am going to try this case. And I am going to do everything humanly possible to protect your rights and see to it that you have your day in Court.
Then, when I’ve done that, whatever the pronouncement is, I have done all I can do.
And, if you don’t want to abide by the rules of this Court, if you don’t want to accept the offer of help and assistance of this Court, that’s your problem. That’s your privilege. You have that right. But you’re going to be in jail while you’re exercising that right.
Now, Mr. Simpson, I am going to appoint you to represent this man. He does not want you. And that’s fine.
And what I want you to do, I want you to do this: I want you and the Prosecutor to see if you all can get in touch with these people by phone and that if there is any way humanly possible that we can get them here for Thursday. And it will be by their grace because we obviously can’t order them here in this short notice.
If they can, I want them to consider this: This Court has set aside this time to try this case. And, if there’s any way humanly possible, I intend to try this case Thursday and Friday and get rid of it.
And, if they will accommodate me, I will accommodate them. Otherwise, it’s going to be more time that they’re going to waste on down the road because we’re going to have to pass it off and keep him in jail and resubpoena and reset the trial and he’s going to be in jail out there sixty or ninety days because it’s going to be that long before I can put it back on the docket. And I’m prepared to keep him there but I don’t want to. I want to get rid of this case.
Clark’s appointed attorney: Judge, we have been previously appointed on this case and I had assigned it to Mr. O’Hearn of our office. He’s done quite a bit of work on the case. I think he’s talked with Mr. Clark. And what I would like to do, with the Court’s permission, is let Mr. O’Hearn handle this case. * * * Judge, one more point we have. When we first — Now he’s offered his witness list. I think he had subpoenaed some U.S. Senators. I’m not sure all.
But—
Clark: Beg your pardon.
State’s attorney: There’s some Chancellors.
Clark’s appointed attorney: There’s some Chancellors. I’m not sure who all was subpoenaed. There’s list of about forty, I think.
Judge Lofton: Gentlemen, I’m reading the Brethern and you can subpoena the President. I didn’t know that.
Clark’s appointed attorney: At that time, we didn’t understand why some of these people were being subpoenaed.
Judge Lofton: Well, nobody does, you see. And all I want you to do is just try to find out, you know. And he may not tell you. He may tell you. Are you going to talk to this lawyer?
Clark: Your Honor, I’ll just have to determine that at a later time.
Judge Lofton: Well, it’s getting pretty late, you know.
Clark: Well, I understand.
Judge Lofton: We’re getting ready to go to trial Mr. Clark, and it’s time you started making some basic, fundamental decisions. But you don’t have to, you know. All you have to do is be here and we can try the case. * * *

The fifth hearing began on February 9, 1984.

Mr. Clark: Your Honor, may I make a statement, please?
Judge Lofton: I suppose so.
Clark: Your Honor, I do not wish to have anyone defend me except myself. I refuse the assistance of the Public Defender.
Judge Lofton: I understand that, Mr. Clark, and respect that. And I’m just going to have them stand by and available to you and to be aware of the issues in the case and the legalities in case you need them and in case the Court needs them. You’re your lawyer and they’re just available to help you and to help me get through this.
Clark: I understand. Very good. * * *
State’s attorney: I think at this time it would be appropriate for the Court to hear testimony about Mr. Clark. I have some questions as to whether he is fit to proceed at this point or not or whether he can effectively assist in his own defense. The actions he’s taken indicate that he is either not in grasp with reality or refuses to accept that.
Clark: Your Honor, I object strenuously. Before any testimony is given as to whether or not I am fit to represent myself, I’m sure that I’m due psychological testing and to bring in witnesses on my behalf to state that I am in fact competent and capable enough to handle this defense myself. * * * I would like to have the record presented from the State Hospital, which in fact I did subpoena.
Judge Lofton: We’ll get it. Is it here today?
Clark: It will be here tomorrow, your Honor, and it will state beyond a question of a doubt that I have three separate physicians who state there’s absolutely nothing wrong with me. * * * Let me say that, number one, I have paid a portion of the child support for which I am now being charged that I have not paid, that I paid during that time—

After lengthy arguments and testimony, the following occurred:

State’s attorney, continuing: Mr. Clark, let me ask you just one very simple question. Why is it that you will not go out and hire an attorney to assist you in this case? I understand you got that right. Just one little simple question. Why will you not go out and hire an attorney?
Clark: I don’t have any money right now.
Judge Lofton: He doesn’t have any money. Is that what he said?
State’s attorney: That’s what he said.
Clark: I don’t have the money right now.
Judge Lofton: Would you accept one if one were provided?
Clark: No, I would not, your Honor.
Judge Lofton: So, the money doesn’t have anything to do with it.
Clark: Well, in this case, if I had an opportunity to hire an attorney that I had confidence in, yes, I probably would hire him.
Judge Lofton: Do you have any attorney in mind that you have confidence in?
Clark: I have one.
Judge Lofton: Who? * * *
Clark: Is it mandatory that I answer that question?
Judge Lofton: No, I’d just like to know.
Clark: Well, I would prefer not to answer at this time.
* * *
Judge Lofton: I might get him for you, at a fee that you could afford. If you will just tell me who it is, I’ll see if I can accommodate you.
Clark: Harold Craig.
Judge Lofton: Harold Craig. John, Call Harold Craig. And somebody look in the courthouse and see if Harold Craig’s here and ask him to come up here. * * * Mr. Clark, one thing I’d like to ask. Mr. King testified you told him that the conspiracy had widened to include this Court and him. Do you think this Court’s involved in any conspiracy against you?
Clark: Your Honor, I don’t recall ever having said that to Mr. King.
Judge Lofton: So, you deny it?
Clark: Yes, I deny that. * * * Your Honor, it is my opinion that you are doing it the way you usually do it. It is your Court and you have a right to run it the way you see fit.
Judge Lofton: Gee whiz. There’s some dispute about that. But go ahead.
* * *
Clark: I really don’t think I will be convicted. It depends on what evidence you will allow me to present.
Judge Lofton: Therein lies the problem, Mr. Clark.
Clark: I realize that you are going to do what you think is right.
Judge Lofton: That’s charitable of you.
* * *

Judge Lee Munson testified:

Judge Lofton: Judge, was he able to adequately deal with the intricacies of his legal issues?
Judge Munson: Not really. He didn’t understand the consequences. He didn’t like the law and he was going to do it his way.

Cross-examination by Clark:

Q. You stated, Judge Munson, that I made bizarre statements in Court. Can you tell me what bizarre statements those were?
A. Well, you said that Judge Rogers had taken bribes, that I was on the take, that we were all conspiring against you, that sort of thing.
Q. I see.
A. There was no base of foundation for that. That’s a bizarre statement to me without foundation.
* * *

Mr. Harold Craig, a lawyer, was found:

Judge Lofton: . . . Mr. Clark, I have found Mr. Craig here. He was in the courthouse.
Mr. Craig, Mr. Clark does not have an attorney and will not accept the Public Defender or anyone that the Court might appoint to him. There are some allegations about a wide conspiracy. And there is only one lawyer in all of Pulaski County that he would even consider. * * * I can’t pay you but I am deeply concerned about Mr. Clark. And I’m not concerned about the legal issues. I’m concerned about his welfare.
As an officer of this Court, would you talk to Mr. Clark?
Craig: Yes, I would.
Judge Lofton: Notwithstanding the fact that I can’t pay you.
Craig: I understand that.
Judge Lofton: And you’re under no obligation to me or anybody but Mr. Clark. Also, Mr. Craig, the Prosecutor has asked Dr. Rosendale to be here today and he has witnessed this and I would like to make Dr. Rosendale available to you.
Craig: Very well.
Judge Lofton: And I would like to give you and Mr. Clark and Dr. Rosendale some time to talk. And will you report back to this Court?
Craig: Certainly.
Judge Lofton: Do you have any objections to that, Mr. Clark?
Clark: No, I don’t, your honor.
Judge Lofton: Clark, would you take them back and put them in the jury room or wherever back there. Dr. Rosendale, do you mind?
Rosendale: No, sir.
Judge Lofton: Thank you. I appreciate it. I’ll wait until I hear from you all.
(Thereupon, the Court continued with its docket; then the following proceedings occurred:)
Dr. Rosendale: I’ve told him what I’ve recommended. I’ve told him that he absolutely needs counsel. And I’ve told him that if he tries to represent himself and he brings in all this non-material and his allegations that he’s made in the past I think he’s just going to hurt himself, that only the instant case, just the non-support, this is the only issue before the Court, as I understand. And Mr. Craig agreed with me. So, if he will accept counsel, he can handle himself.
Judge Lofton: Okay. Does that mean inpatient counseling?
Dr. Rosendale: No. I mean if he will accept counsel in the courtroom.
Judge Lofton: Okay. But, otherwise, he can’t?
Dr. Rosendale: He cannot handle himself as his own attorney.
Judge Lofton: Thank you, sir. I appreciate that.
Dr. Rosendale: That’s my recommendation to the defendant as well as to the defense lawyer.
Judge Lofton: . . . Mr. Craig, have you had a chance to visit with Mr. Clark?
Craig: Yes, I have, your Honor. . . . It’s my opinion, your Honor, that Mr. Clark will need to be represented by counsel. As I’ve explained to him, he has a right to appear and represent himself. . . . If he’s competent to do so. My opinion is that he would do himself and his case much more damage without representation by an attorney. I have not discussed with him in any detail the facts of the case. I’m not familiar with it at all. From my visit with him, yes, I think he needs to be represented.
Judge Lofton: Mr. Clark, what’s your position on Mr. Craig’s position?
Clark: If he will represent me, your Honor, I will take him as counsel.
Judge Lofton: Mr. Craig, can you accept it?
Craig: I can, your Honor. The only thing I’d like publicly for Mr. Clark to be aware that your Honor and I practiced together for a short few weeks many years ago. We were not partners. We were in the same building.
Judge Lofton: That’s true. And I’ve never held that against you.
Craig: But I hate for Mr. Clark to think there was any collusion.
Judge Lofton: Well, he said I’m not colluding. And I think I’ve demonstrated that I’m trying to help this man.
Craig: But I would be happy to represent him.
Judge Lofton: Is that satisfactory to you, Mr. Clark?
Clark: Very satisfactory.
Judge Lofton: Now, we’re set for trial tomorrow.

The court recessed and reconvened at 2 p.m.

Judge Lofton: What does your man want to do?
Craig: Dismiss his appeal. . . Remand it to lower court, get out of jail, go to work and pay us a lot of money.
Judge Lofton: This is the State of Arkansas versus Bill Clark, 83-1986, and the charge is non-support. And this is a misdemeanor appeal from Little Rock Municipal Court, where you were found guilty of non-support and fined Nine Hundred Dollars plus Fifty Dollars and Twenty-five Cents costs. And you appealed that. And you’ve been up here in this Court for some time. In fact, it was filed up here on September the 14th. Then on October the 12th we arraigned you and we’ve been fooling around, I don’t mean to be short cutting it or facetious. We have been dealing with your problem since then. We’re set for a jury trial tomorrow. So, we had a hearing this morning about it and, without going into all that — that record is there — you indicated that you might consider talking to Mr. Craig about representing you and the Court got Mr. Craig. He was in the courthouse and he came up and talked to you, spent some time talking with you today. And we also had Dr. Rosendale here talking to you today. And you’ve had some time to consult with Mr. Craig and various things.
Mr. Craig advises me that you have reached an agreement that’s in your best interest with Mr. Craig, your attorney, and that is that you want to dismiss this appeal and remand it back to the lower court and go on about your business.
Clark: That is true.
Judge Lofton: Now, you understand what that means?
Clark: I think I do.
Judge Lofton: He’s explained it to you. Mr. Craig and Mr. Adametz both have explained it to you.
Clark: Well, I understand from him enough that if I misunderstood anything that’s my problem, not theirs.
Judge Lofton: Okay. So, you’re just not going to litigate this here. I’m going to send it back down there and, whatever that is, that’s fine. You understand that and this case is dismissed.
Clark: I understand that.
Judge Lofton: And that’s what you want to do? * * * And all I’m going to do is I’m going to dismiss your appeal on your motion and I’m going to remand it back to them and you can argue with them and fuss with them and do whatever you want to do down there and solve it and settle it. You know, whatever. But I’m through with it and that’s on your motion. You understand that?
Clark: I understand that.
Judge Lofton: And you are satisfied with Mr. Craig?
Clark: Yes.
Judge Lofton: You think he’s done you a good job today?
Clark: Yes, I do.

After Clark agreed to dismiss the appeal on advice of counsel, he reappeared in Lofton’s court. This is March 6, the sixth hearing.

Judge Lofton: All right, Mr. Clark, this is your petition to reinstate your appeal. Right?
Clark: That’s correct your Honor.
* * *
Judge Lofton: Mr. Clark, number one, that will be denied because I’ve tried for six weeks, two months, now, to get you to have a lawyer. And I have not taken it upon my responsibility to advise you about anything except that you need a lawyer.

Clark presented a notice of demand for rights sua sponte.

Judge Lofton: * * * I’ve done everything that I know to do within the rules of law, procedures and regulations to protect your rights and you’ve avoided them, you’ve ignored them, you’ve refused them. And, now, then we have an understanding or had an understanding, Mr. Clark, that you were going to represent yourself, no holds barred and let the chips fall where they may. That’s what you did and I gave you a lawyer and you didn’t like him. So, those will be denied. You are the attorney of record unless you accept counsel appointed by the Court.
Clark: All right. I would prefer to be the attorney of record.
* * *

Craig was called by Clark:

Q. But you really and fully believe that I did of my own knowledge and volition dismiss my appeal that day?
A. Sure.

King was called by Clark:

Q. Was it your intent, Mr. King, on that day to get me to accept counsel? [Harold Craig.]
Judge Lofton: That doesn’t have anything to do with it. He didn’t have anything to do with it. He didn’t interject himself into it. You were the one that said that you would accept Harold Craig and I was the one that sent and got him. Lloyd King didn’t enter into it at all, I don’t think. If I asked him, I didn’t intend to.
A. Do I understand you’re waiving the attorney/client privilege?
Q. Yea.
* * *

Craig again testifying:

Mr. Clark, you. expressed to me, first of all, that you had testified that you had sufficient income to pay your child support. You acknowledged the child support had come due. You acknowledged that you had not paid it. You continually and repeatedly asserted your desire to nail all these people who you are convinced have conspired against you. And that was your purpose in demanding a jury trial, to try all these other people for conspiracy. And, yes, I told you that the evidence you intended to offer was not material and was not relevant. I was trying to keep you from making a complete and utter fool of yourself.
Clark continuing:
Q. I see, Well. . . I mean you and I were talking. Were you watching anything else that transpired in the room?
A. I don’t recall whether I was or not.
Q. Then, if a highly sensitive tape recorder was placed in that room and in fact that conversation was taped, you wouldn’t know it one way or another, would you?
A. I certainly wouldn’t.
Q. Okay. Now—
Judge Lofton: Was there one? * * *
Clark: With all due respect, your Honor, I don’t know that I have — Excuse me. Before I say something and go back to jail, may I think about that question a moment? Under sua sponte—
Judge Lofton: Sua sponte is not going to go with you. * * *
Well, I’m asking you, though. Was one put in there?
Clark: And I’m saying I’m not going to say.
Judge Lofton: Okay.
Clark: Your Honor, the Defendant would like to state at this time, with all due respect to the Court, that it’s Defendant’s opinion that the denial of the Court to allow the Defendant to prove his points of conspiracy that are in fact pertinent to this case. And I would like to at this point state that I would like to enter into the record as a matter of record the definition of conspiracy and conspire out of Black’s Law Dictionary as a matter of record.
* 4c *
I would like to state that it is the opinion of this Defendant, certainly not maliciously to state to this Court or with intent of contempt of this Court, but that this Court and Deputy Prosecutor Lloyd King, Deputy Prosecutor Richard Callaway, two Public Defenders, Thomas Hearn (sic) and William R. “Bill” Simpson, have conspired — Have conspired to deprive this Defendant of due process, to deprive this Defendant of a jury trial, to intimidate and to coerce this Defendant, continuously that they have called illegal hearings and unlawful hearings, namely on February the 9th, when Defendant was supposed to come in supposedly for an omnibus hearing he finds himself two days after the two Public Defenders attempted to intimidate the Defendant in the jail cell into stating that this Court could in fact find Defendant insane. * * * If I’m not mistaken, this Judge did, too, in Chambers.
Judge Lofton: No. I just said you weren’t playing with a full deck.
Clark: That is correct. I believe that was the statement. I believe the Defendant asked the Court to recuse himself at that time and the Court refused to do so.
Judge Lofton: Yeah. And I said I wasn’t trying you for not playing a full deck. I was just trying you for not paying child support.

Finally, after six hearings, the appeal was dismissed.

Next, we examine what happened in the case of terroristic threatening which was ultimately tried to a jury which found Clark guilty. On the 19th of February, 1985, Clark’s trial began for charges of terroristic threatening to kill Robert Newcomb, the attorney ad litem appointed for his children and his former wife’s attorney. The first hearing was held on August 31.

Judge Lofton: Good morning, Mr. Clark. I didn’t know who that was when I saw the name. You’re charged with one count of terroristic threatening. Are you going to represent yourself in this case.
Clark: Yes, I am, your Honor.
Judge Lofton: You know what you’re charged with, don’t yoii?
Clark: Yes, I do.
Judge Lofton: Jury trial?
Clark: Yes. Twelve.

On January 3, 1985, the second hearing.

Judge Lofton: Mr. Clark. What’s the status of your other case?
Clark: Oh, I thought I had delivered the appeal to you, Judge. [Appeal from Municipal Court]
Judge Lofton: You may have. I don’t read those. And you can keep it. I don’t read it.
Clark: Well, you’ve got to keep it. You’ve got to keep a copy according to — You know, you can shitcan it or whatever you want to do.
Judge Lofton: What’s the status? Has it been submitted yet? * * * Have you filed any motions?
Clark: I filed one just a few minutes ago. It will be the second time I’ve asked you to recuse yourself.
Judge Lofton: Well, it’s not timely filed and I’m not going to do it. * * * Why? For what — Just because I said you weren’t playing with a full deck?
Clark: Well, you’re biased. There’s no question about it. I think I know it and you know it and everybody else in the courthouse knows it.
Judge Lofton: So, your reason you want me to recuse is because I’m biased?
Clark: Because you’re prejudiced and biased against this defendant.

January 30, the trial date.

Judge Lofton: Mr. Clark, is there anybody going to be with you at the counsel table?
Clark: No, your Honor.
Judge Lofton: Okay. I have an attorney available. Will you accept appointment of a public defender to help you?
Clark: I will not.
Judge Lofton: Okay. Mr. Allen, I’d ask you to sit at the rail, at that bench right behind the counsel table and just make yourself available. This is Mr. Art Allen. He’s available if you need to ask him anything. He won’t sit there with you but, if you need to know something, he’s available. Okay. Now, then, is there anything I need to know about this case before we get started?
State’s attorney: I just hate to see him having a field day at everybody’s expense with him not having to pay anything for it.
Judge Lofton: Well, I don’t know—
Clark: I have to pay for you.
Judge Lofton: Now, listen. Mr. Clark, we’re not going to put up with that now. I’m going to do everything I can to keep you from prejudicing your case today. I probably will have my hands full. But I’m not going to have a bunch of arguing, fussing, fighting out there. This is a court of law. If the State can prove you guilty and convict you, fine. If they can’t, they’re not going to. But you’re going to be held to the same standards, as you know, as any other lawyer. I’m not going to put up with all that bickering because it’s not going to help your case and I’m going to do everything I can to help you.
Clark: I understand.
Judge Lofton: But, now, I’m going to rule just like I would and I expect you to obey those rules. And we’re going to go right through this trial just like you had a real lawyer.

After considerable testimony, with the judge admonishing Clark not to bring up irrelevant material, the judge stated:

There’s a lawyer over there. He might be able to help you.
Clark: This defendant is not foolish to believe that this Court is interested in protecting this defendant’s rights at all.

When Clark persisted in arguing with the court’s admonitions and rulings, the judge firmly said:

Be quiet a minute. You be quiet. You go over and talk to that man. He’s going to give you some legal advice. [The attorney appointed for Clark] Art, I am going to hold him in contempt of Court and put him in jail until he agrees to abide by the rulings of the Court or, if he will agree to conduct this trial in a manner that is in his best interests, I will continue to do so but I’m not going to put up with anymore. Now, you go talk to Mr. Allen over there and let him give you some legal advice and then you all tell me what you want to do. Talk to him.
Clark: Your Honor—
Judge Lofton: Are you refusing to talk to Mr. Allen?
Clark: Your Honor, I have a right to defend myself. The Supreme Court has stated that I have a right to defend myself.

The judge dismissed the jury and noted:

Mr. Allen, you are hereby appointed to stand by as lawyer for Mr. Clark. He is going to be committed to the Pulaski County Jail until such time as he agrees to abide by the rulings of the Court and/or let you try the case in his best interest, whichever. Take him to jail. He’s to be held in contempt of Court until he purges himself by complying with the Court’s orders.

On the 4th of February, the court reconvened. This time attorney Jim Tripcony appeared for Clark.

Judge Lofton: Mr. Clark, you’ve refused steadfastly to get a lawyer but have you hired Mr. Tripcony?
Clark: I have, your Honor.
Judge Lofton: And you’re satisfied with him?
Clark: I am.
Judge Lofton: And you.want him to represent you?
Clark: I do.
Judge Lofton: And you’re going to follow his advice?
Clark: To the best of my ability.

The judge, concerned about the way the case was going, called Douglas Stevens.

Judge Lofton: . . . Now, I’m concerned about — The State’s trying to put him in the penitentiary for up to six years. And I’m concerned about he will not or up to this point has not agreed to employ counsel, he does not or is not. He’ll change his mind about that before it’s over with. But I’m concerned about your position on whether he can represent himself and, two, about the safety of myself, the court personnel. I’m not worried about Robert Newcomb because the case will take care of that. But Mr. Clark and I have had several run-ins and we’re going to continue to have run-ins because I’m going to run this court the way I want it to run and he’s not going to change that. And he knows that. So, talk to me.
Dr. Stevens: Okay. I would agree and I have agreed for a long time that Mr. Clark is not in a position to represent himself because he’s too emotionally involved and anyone in that situation it’s impossible. Furthermore, he’s a much more task oriented individual and stubborn as he and I have talked about. He’s the sort of fellow that if he came along the road and there was a boulder that had fallen in the middle of the road and he could get around it he wouldn’t. He’d stop, get out a sledge hammer and break up the rock rather than attempt to go around it. And this characteristic is fine in many situations. In business it stands him in good stead. In the court it doesn’t do him any good at all. He’s needed counsel and he and I have talked about that and finally he agreed to do so. And I do think that he will continue to let Mr. Tripcony represent him at this point. I think he sees that he can go no further in the direction that he’s been going without causing himself increasing levels of grief.
* * *
Judge Lofton to Clark: Well, now what are you willing to do if I give you a new jury? No question about it. You tainted that one so bad that, you know, they’re so mad at you and you got so much stuff in there. But, anyway, it wouldn’t be to your advantage. But, you know, you haven’t followed my advice yet. What are you willing to do if I give you a new jury ? Are you willing to spend some more time in jail for contempt? That cost Six Hundred bucks that you insisted upon.
Clark: Well, your Honor, I’d have to confer with my counsel.
Judge Lofton: Well, that’s what you’ve got him for. Now, I want to solve your problems today. And I’m just getting started with the requirements. Let me put another little piece in the pie, Jim. He has subpoenaed people from all over the country, his ex-in-laws, and they have got plans. They were here and they’ve gone to California. Now, if he wants them back — I’m not going to put this case off. I can try it Friday, the fifteenth. If you can get ready by Friday the fifteenth and if he can get all his witnesses back here — He’s going to have to re-subpoena them, Judge Rogers. I don’t know what in the world Judge Rogers would testify to. You know, I just don’t know.

A mistrial was granted on the motion of the defendant. A third hearing began in this case February 12, 1985.

The pretrial hearing occurred February 15, 1985, and the new trial began that day and continued without incident. The jury found Clark guilty and sentenced him to a $10,000 fine. That brings us to the beginning of the case before us, when it was discovered the document in question was filed without being brought to the attention of the court.

The contempt proceeding in regard to the motion consists of 268 pages. Mr. Tripcony was there as counsel. Mr. Clark was not present. At the first hearing on February 19, the following occurred:

Tripcony: Thank you. Although I have stated to the Court that tomorrow would be ten days notice to me, my client informs me that would not be ten days notice to him and I think . . .
Judge Lofton: Does he know of any way he would be prejudiced by going ahead tomorrow? Is there anything he can do in that other three or four days that he hasn’t done already? Incidentally, while we’re talking Mr. Tripcony, did you not advise Mr. Clark that he was supposed to be here that Tuesday morning after the trial?
Tripcony: That’s correct.
Judge Lofton: And he didn’t show up, did he?
Tripcony: That’s correct, your Honor.
Judge Lofton: He knew that there was an order for him to appear?
Tripcony: Yes, your Honor. . . . And my understanding was — I stand to be rebutted. My understanding was that it was Mr. Harrill’s desire to represent Mr. Clark and Mr. Clark’s desire to have Mr. Harrill represent him rather than have me represent him for the fee I quoted for appeal.
Harrill: Your Honor, I’ve never been fired. I was forced to withdraw from the domestic matter because Mr. Clark could not pay the fees that had amounted up at that time.
Judge Lofton: Your motion to be relieved will be denied. And you may both represent Mr. Clark and anybody else he wants to marshal. You know, the more the merrier. We’re going to finally wind up with one lawyer, I hope. It may be you, Jim, but we’re not going to fire and hire day in and day out.

The second hearing on the contempt was held March 1, 1985. During the hearing Lofton said he was “thick skulled.” During Clark’s testimony the judge remarked:

Well, Mr. Clark, you and I have had a long continuing dispute about what was relevant and material in your cases and you’ve never been in agreement with me. And it’s my job to decide what is relevant and material and you’ve never agreed to that. So, the only thing I’ve ever told you was that you needed a lawyer. And everybody that’s ever represented you has said you needed one but you won’t listen to them. So, the only dispute we’ve had about that is you want to relitigate your custody and divorce and it’s not relevant to most of the issues up here. So, that’s the only dispute we’ve had. But I’ve never made you lie about it, I don’t think. * * * I will certainly admit that his mental welfare has been a great concern to me, ever since he’s been up here. And I have on every opportunity had competent psychiatric and psychological people, even his, tell me that he was sane and he didn’t need to be committed. And I’ve never committed him. And, as recently as yesterday, his two psychologists told me that he was competent. Everything I’ve done I think the record will show that I had certain questions about him. But everything I’ve done has shown that he is competent.

In conclusion the judge found:

Mr. Clark, the Court is going to find you in contempt of Court, criminal contempt of Court. The evidence that you have presented today is that you accused this Court of bribery, you accused this Court of intimidation of witnesses and you have accused the Court of false statements. Not only have you not produced any evidence of that, but in cross-examination you admit that it wasn’t even in this case that is before me that you filed this pleading in but it was in another case that this Court had, but that you filed it in this one because it was the only one available. And, Mr. Clark, I frankly wish that I could be fortunate enough and lucky enough to not draw any more of your litigation. But you have intimidated Judge Munson. You have intimidated Judge Judith Rogers. You have run all of the Chancellors off and it became necessary to get a judge from out of Pulaski County to try your domestic relations case, Judge Rogers from Stuttgart. And, now, you’ve filed similar allegations about him being in a conspiracy. And you’ve told me yourself that Judge Judith Rogers and Judge Munson were in a conspiracy to you — with you. You accused me of the same thing. You’ve accused me of these things, bribery, but not in this case but in another case that’s on appeal before the Court of Appeals that you’ve raised that, supposedly, you say. * * * And I will state for the record that if you are. not paranoid you are without a doubt the most stubborn man I have ever seen in my life. But I’m not going to punish you for that. I’m not going to punish you for being stubborn.

That judgment was reversed in Clark v. State, supra, which brings us to the fifth volume of this record. The hearing on this matter was conducted by Judge Lessenberry. The record consists of 208 pages. Judge Lofton and Clark testified extensively. Clark was questioned by his counsel Harrill on every allegation in the document. All the records I have mentioned were before the court. Some of the testimony is relevant:

Judge Lofton: Yes, it took up additional time on the docket to hear it. The contempt.
Harrill: What I am talking about it did not interfere with your orderly handling of your other cases?
Judge Lofton: Yes, I think so. * * * Yes, is that definitive of anything, Mr. Harrill? Yes, my cases got tried. But extra hours, extra work, extra time. Yes.
Harrill: In terms of dealing with him?
Judge Lofton: It took time to hear his case, yes.
Harrill: Okay.
Judge Lofton: That I could have used otherwise.
Harrill: But this was not any particular threat to the way you run your court, was it?
Judge Lofton: Yes.
Harrill: Are you telling this Court here that it interferred with your handling of the other cases?
Judge Lofton: Yes. The obstinance and arrogance of this man interferred with my docket substantially.

Judge Lessenberry recited his findings:

Well, I’ve had an opportunity to look at State’s Exhibit 1 and it is certainly my feeling that pleadings of that nature have an effect upon the Court and its orderly handling of business. It subjects the Court to ridicule, disrespect. It’s particularly offensive. And at any time that anybody is confronted with something of that nature making those kind of accusations, I think it offends the Court and creates a hardship on the litigants and all those involved. * * * And by the ruling I am about to announce I don’t find that specific instances or allegations in the motion are contemptuous. But I find that other specific areas and in them in total the motion is contemptuous. * * * If there is to be any confidence in our judicial system and the people who have made it a practice to learn about that sort of thing tell us that there.is a substantial number of the public who don’t have confidence in the judicial system. That Judges are honest. That Judges try to do justice. And even appear to try to do justice, then we are in a lot of trouble. And were someone like yourself who has been in the public’s eye, who’s bright person, sophisticated, makes allegations as you did of criminal conduct on the part of the Court, then not just Judge Lofton is injured, but indeed the justice system is injured. And I find that there is no basis whatsoever, no logical, reasonable basis for making some of these allegations. That the most casual kind of inquiry on your part would have disclosed that Judge Lofton had no mental — Criminal intent or involvement with these kind of acts. That there was a total disregard by you in the use of the kind of language in the choice of your words in accusing Judge Lofton of these kinds of acts. * * * Your recited reasons of getting this in the open, I don’t think that the filing of this motion emphasized anything that wasn’t already of record. I think it was used by you as a vehicle, that you yourself could justify to yourself alone as a means of degrading Judge Lofton specifically and the Courts in general. Having so recited those matters I find you in contempt of court.

I apologize for the length of this dissent. But the question is plain. Do the courts or do people like Clark, bent on disrupting and destroying the legal system, prevail? Can the courts be insulted, criminally libeled and powerless to punish the criminal behavior? The majority not only find the document not contemptuous but also not disruptive. It was not a motion — it was an indictment. The respondent in this case is not Judge Lofton, it is the State of Arkansas. Judge Lofton represents the people. There is no end to Mr. Clark. He has carried his personal bitterness from his divorce case to the point of lawlessness. Judge Lofton could not ignore these criminal charges — to do so would be to condone criminal contempt for the law, the courts and the legal system. Actually, Judge Lofton showed considerable patience with this obsessed defendant.

Our entire system of law rests on the integrity of the judges and the respect the public has for the judges and the law. Those who can defy the courts and disrupt can destroy the system. This was no ordinary proceeding — this was no ordinary defendant. He went through three chancellors in his terroristic dispute and two separate criminal trials. Now he has been twice before us. He knew exactly what he was doing, and he did it deliberately. Just as he filed this pleading with no intention except to defame the judge and the court. These are the facts. Judge Lessenberry found them sufficient to support a finding of contempt and to not uphold that finding is wrong.

I respectfully dissent.

Dudley and Glaze, JJ., join in the dissent.


author: Tom Glaze, Justice.

text:
    Toai Cong PHAM v. Hanh My TRUONG
    86-190
    725 S.W.2d 569
    Supreme Court of Arkansas
    Opinion delivered March 9, 1987

      Gary L. Carson, for appellant.

      Pearson, Woodruff & Evans, by: C. Thomas Pearson, Jr. and Pat A. Jackson, for appellee.
   Tom Glaze, Justice.

This case involves the parties’ adoption of a six-month-old girl, Mai Thanh Truong. Upon the parties petitioning to adopt Mai, Mai’s natural parents entered their consents to the adoption, after which the trial court, on September 17, 1984, entered its temporary decree, finding and ordering Mai to be the parties’ child. Twenty months later, on May 27, 1986, the appellant, adoptive father, petitioned the trial court to allow the withdrawal of his earlier request to adopt Mai and to vacate the September 1984 decree. Appellant’s request ultimately was denied, and resulted in the trial court’s entry of a final decree on July 8,1986, declaring both appellant and appellee the adoptive parents of Mai. On appeal, appellant contends the trial court erred in finding it had no jurisdiction to vacate the September 1984 decree or to dismiss him from the adoption proceedings, prior to entry of the July 8, 1986, final decree. We hold the trial court was correct, and, therefore, affirm.

Appellant waited twenty months before he moved to set aside the September 1984 temporary order of adoption. His action simply was untimely. Under Ark. Stat. Ann. § 56-216 (Supp. 1985), an adoption decree issued for one year or more cannot be questioned by any person, including the petitioner (adoptive parent), in any manner or upon any ground unless, in the case of the adoption of a minor, the petitioner has not taken custody of the minor. Appellant makes no assertion that he had never taken custody of Mai. Thus, the time limitation contained in § 56-216(b) was in no way tolled. In addition, he failed to offer any reasons whatsoever why either the court’s temporary order of September 1984, or its final order of July 8, 1986, should be vacated.

Instead, appellant argues he had an “absolute right” to dismiss his petition anytime prior to the entry of a final decree, and, to support his argument, he relies upon Rule 41 of the Arkansas Rules of Civil Procedure. Under that rule, which allows voluntary dismissals, he says he was permitted to have his petition dismissed at anytime prior to the court taking the case under submission and rendering a final decree. Appellant’s argument fails to recognize that an interlocutory decree of adoption, while it is in force, has the same legal effect as a final decree of adoption. See Ark. Stat. Ann. § 56-215 (Supp. 1985). Here, appellant failed not only to file a timely motion, alleging proper grounds, to vacate the court’s September 1984 interlocutory decree, he was also dilatory in requesting the court to dismiss his petition.

Finally, we note appellant’s argument, citing Reynolds v. Spotts, 286 Ark. 335, 692 S.W.2d 748 (1985), that the court’s 1984 adoption order, by its own terms, required a hearing before it became final. Under this factual and legal scenario, and because he moved to dismiss his petition on May 27, 1986, appellant contends the court should have granted his motion since he acted before entry of the July 8, 1986, final order. We reject this argument because we read both the facts and the temporary order in Reynolds to be different from those before us here. Unlike in Reynolds, the court’s temporary order here did not provide it would become final only upon motion of the petitioner. But, even if the order were like the one in Reynolds, the issue there was limited to the order’s appealability. Aside from any such issue, the appellant here evidenced no interest in appealing the court’s 1984 temporary order, nor did he timely move to vacate that order, even though he was certainly authorized to do so under our Revised Uniform Adoption Act. See Ark. Stat. Ann. § 56-214(c) (Supp. 1985). Meanwhile, consistent with the provisions of the Act, the court’s temporary order effectively and conclusively created the relationship of parent and child between appellant and Mai, as if Mai were appellant’s legitimate blood descendant. That relationship involves duties of care, maintenance and education with rights of custody, control and service of the child. Unless proper grounds are timely alleged and shown, an adoptive parent should not be freed of the parental obligations he or she willingly had undertaken. Cf. In re McDuffie, 352 S.W.2d 23 (Mo. 1961); Allen v. Allen, 214 Or. 664, 330 P.2d 151 (1958); see also 2 C.J.S. Adoption of Persons §115 (1972) (adoptive parents may bring action but annulment at the behest of the adoptive parents is not favored).

Because we find no merit in appellant’s points for reversal, we affirm.


author: Per Curiam.

text:
    Dwight MURRY and Johnny MURRY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    87-30
    725 S.W.2d 571
    Supreme Court of Arkansas
    Opinion delivered March 9, 1987

      Cross, Kearney & McKissic, by: Jesse L. Kearney, for appellants.

      Boswell, Tucker & Smith, by: David E. Smith, for appellee.
   Per Curiam.

The appellants brought several claims against the appellee resulting from a dispute over insurance coverage relating to an automobile accident. The trial court dismissed all of the claims of one of the appellants and some, but not all, claims of the other appellant. The appellants filed a notice of appeal without obtaining from the trial court the direction for entry of judgment provided in Ark. R. Civ. P. 54(b).

After the record was docketed with the clerk of this court, the appellants obtained an order of the trial court finding that there was no need for delay and directing the entry of final judgment pursuant to Rule 54(b). The order was entered on October 7, 1986, nunc pro tunc for April 22, 1986.

A nunc pro tunc order may be entered to make the court’s record speak the truth or to show that which actually occurred. Southern Farm Bureau Casualty Insurance Company v. Robinson, 238 Ark. 159, 379 S.W.2d 8 (1964). However, it may not be used to accomplish something which ought to have been done but was not done. Fitzjarrald v. Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584 (1961); Dickey v. Clark, 192 Ark. 67, 90 S.W.2d 236 (1936). The nunc pro tunc device was thus not effective to enter an order in a case in which the trial court had lost jurisdiction. Andrews v. Lauener, 229 Ark. 894, 318 S.W.2d 805 (1958). It was a nullity.

This opinion gives us an opportunity to express our concern over the treatment Rule 54(b) is receiving in our trial courts. We have had numerous occasions of late to hold that appeals must be dismissed for failure to comply with the rule. See, e.g., Arkhola Sand & Gravel Company v. Hutchinson, 289 Ark. 313, 711 S.W.2d 474 (1986), and the four other recent cases cited in that opinion. The litigants wishing to appeal in those cases obviously overlooked the requirements of the rule when preparing to appeal. We may have suggested that the trial judges should take lightly a request for the direction of finality by, in some cases, dismissing appeals of cases where there had been no compliance with the rule without prejudice to the appellant, Howard v. Wood Manufacturing Co., 291 Ark. 1, 722 S.W.2d 265 (1987), thus permitting the appellant to return to the trial court upon remand for an order in compliance with the rule. See City of Marianna v. Arkansas Municipal League, 291 Ark. 74, 722 S.W.2d 578 (1987). It was not our intention to make any such suggestion. As we said in Tulio v. Arkansas Blue Cross and Blue Shield, Inc., 283 Ark. 278, 675 S.W.2d 369 (1984), and reemphasized in 3-W Lumber Co. v. Housing Authority for the City of Batesville, 287 Ark. 70, 696 S.W.2d 725 (1985), before entering the direction of finality, the trial court must find some danger of hardship or injustice which would be alleviated by an immediate appeal. We stressed that we adhere to a policy against piecemeal appeals and said the discretionary power of the trial court is to be exercised infrequently and only in “harsh cases.”

Our Rule 54(b) was taken from the federal rule which is discussed in C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure § 2659 (1983), in part, as follows:

Because of the strong federal policy against piecemeal review several courts have stated that the district court should make the express determination only in the infrequent case in which a failure to do so might have a harsh effect. As Judge Hastie said in Panichella v. Pennsylvania Railroad Company, [252 F.2d 452 (3rd Cir. 1958)] the determination involves “weighing the overall policy against piecemeal appeals against whatever exigencies the case at hand may present. . . .It follows that 54(b) orders should not be entered routinely or as a courtesy or accommodation to counsel.” It is clear from this statement that some showing must be made by the party desiring an immediate appeal in order to overcome the normal rule that no appeal be heard until the entire case has been completed, [pp. 99-100, footnotes omitted]

Although there can be no precise standard for determining when the trial court should issue the direction that the judgment be considered final as to one of several claims or claimants when others are left for trial, we concur that such an order should issue only in exigent cases.

Hays, J., would deny.