author: Jack Holt, Jr., Chief Justice. Robert H. Dudley, Justice, Robert L. Brown, Justice,

text:
    AMALGAMATED CLOTHING & Textile Workers Int'l Union v. EARLE INDUSTRIES, INC.
    94-218
    886 S.W.2d 594
    Supreme Court of Arkansas
    Opinion delivered November 7, 1994

      Trotter Law Firm, P.A., by: Rick W. Skelton, for appellant.

      Weintraub, Robinson, Weintraub, Stock & Bennett P.C., by:

      Jeff Weintraub and J. Gregory Grisham and Friday, Eldredge & Clark, by: James W. Moore, for appellee.
   Jack Holt, Jr., Chief Justice.

This interlocutory appeal arises from a labor dispute involving appellant Amalgamated Clothing and Textile Workers International Union, an unincorporated association, and appellee Earle Industries, Inc., a corporation engaged in the manufacture of clothes hangers and garment bags.

Amalgamated raises two arguments on appeal, contending that the chancery court erred in denying (1) the union’s motion to dismiss Earle Industries’ complaint for failure to state facts upon which relief might be granted and (2) the union’s alternative motion for summary judgment while granting Earle Industries’ motion for a temporary restraining order. In support of these arguments, various sub-points have been presented, which focus on the conflicts in testimony concerning allegations of harm, the adequacy of other legal remedies, and the injuries to the union and the public interest.

It should be noted at the outset that Amalgamated’s first point on appeal, relating to the denial of the motion to dismiss, cannot be considered by this court because it is couched in terms of an appeal of the denial of a motion to dismiss. The union’s motion was based on Ark. R. Civ. P. 12(b)(6), which allows the defense of “failure to state facts upon which relief can be granted.” However, Rule 12(b) also provides that:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

(Emphasis added.) Perusal of the record reflects that matters presented to the court outside the pleadings consisted of videotapes of newscast coverage and security surveillance of the picketing on September 14, 1993, the texts of various appellate decisions, and the testimony of various witnesses.

Unquestionably, the motion to dismiss was effectively converted, under our rules of civil procedure, to one for summary judgment, and its denial is not subject to review on appeal. Daniels v. Colonial Ins. Co., 314 Ark. 39, 857 S.W.2d 162 (1993). In his order granting a temporary restraining order, the chancellor specifically noted that “[a]t the hearings, both parties were given the opportunity to present evidence” and that the decisions to issue an order and to deny the motions to dismiss and for summary judgment were “[b]ased on the evidence adduced at the hearing, the arguments of counsel, and the record as a whole.” In Eldridge v. Board of Correction, 298 Ark. 467, 768 S.W.2d 534 (1989), we reviewed a case involving a motion to dismiss as if it were an appeal following summary judgment where the chancellor had recited in his order that he had considered the “motions, the responses thereto, as well as the pleadings, briefs, exhibits attached thereto, and other matters.”

Similarly, the portion of the second point on appeal relating to the chancellor’s denial of the union’s motion for summary judgment must also be disregarded. As we have repeatedly held, the denial of a motion for summary judgment is neither reviewable nor appealable. Daniels v. Colonial Ins. Co., 314 Ark. 49, 857 S.W.2d 162. What remains for us to consider, then, is a single issue: Amalgamated’s appeal from the chancery court’s granting of Earle Industries’ motion for a temporary restraining order. Another item, however, should be briefly addressed before we proceed to the merits of this issue.

The union contends, in its reply brief, that Earle Industries’ brief should be stricken for failure to comply with the requirement of Ark. Sup. Ct. R. 4-4(b). That rule states that “[b]riefs tendered to the Clerk will not be filed unless evidence of service upon opposing counsel and the trial court has been furnished to the Clerk.” The certificate of service contained in Earle Industries’ brief does not recite that a copy was sent to the trial court. No penalty is provided in the rules of the court for such an oversight, and the Clerk appeared to have been satisfied with the status of the brief when it was submitted. Thus, we see no prejudice in the Clerk permitting Earle Industries’ brief to be filed.

Facts

On September 14, 1993, members and supporters of Amalgamated gathered at the high school in Earle, Arkansas, for a rally. The Reverend Jesse Jackson delivered a speech, after which approximately sixty to seventy-five persons, carrying banners, marched down U.S. Highway 64 to Earle Industries’ factory.

Law enforcement officials accompanied the group to ensure traffic control. When the marchers arrived at the manufacturing plant, they congregated at the main entrance, and the Reverend Jackson spoke with the personnel manager, Gary Smith, asking to see Peter Felsenthal, Earle Industries’ senior vice president. Meanwhile, Melvin Luebke, a union activist, was arrested by the Earle Police Department on charges of criminal mischief and criminal trespass after he cut the lock and chain on the factory’s back gate.

The demonstrators remained in front of the plant’s main entrance during the employee lunch period for about forty or forty-five minutes, picketing, singing, chanting, and listening to a speech by the Reverend Jackson. Plant employees taking their lunch breaks were allowed to join the union supporters. The front gate was closed for the duration of the protest, and traffic was impeded on U. S. Highway 64. About fifty protesters sat down in the middle of the highway, and a number of them parked their vehicles on the side of the highway. All but one of the demonstrators, Steve Klawan, who was arrested, eventually moved out of the highway. Some vehicles remained on the roadside and they were towed. Two more union supporters, Kathleen Lee and Edna Mae Byars, were arrested for obstructing traffic by parking their cars on the highway, bringing to a total of four the number of protesters who were taken into custody. All four pled guilty and were released after a union representative paid their fines. Less than an hour after the protesters arrived, they dispersed.

On September 21, 1993, Earle Industries filed a complaint for injunctive relief against the union in the Chancery Court of Crittenden County, alleging that the “mass picketing” that occurred the previous week and the “threat of additional mass picketing” posed an “imminent threat of danger to the public safety and to the Plaintiff’s business interests and employees, as well as a threat to Plaintiff’s property interests. . ..” Continued mass picketing, the complaint alleged, would result in “irreparable harm” to Earle Industries and its employees and would imperil the public safety “since the marching and parading of a large number of people would again block ingress and egress to the main employee entrance to Plaintiff’s Plant and block Highway 64[,] which is a major public thoroughfare.”

Asserting the lack of an adequate remedy at law, Earle Industries requested a temporary restraining order:

to restrain the Defendants, and those acting by, through, and in concert with them, from using or employing mass pickets in the act of picketing on Highway 64 or within a 50-foot radius of the fence surrounding Plaintiff’s Plant; congregating, patrolling, walking, or sitting in parked cars within 50 feet of the fenced area immediately surrounding Plaintiff’s Plant in Earle, Crittend[e]n County, Arkansas!,] or to interfere in any ma[nn]er, with the peaceful ingress and egress to and from Plaintiff’s Plant or Highway 64 surrounding Plaintiff’s Plant in Earle, Crittend[e]n County, Arkansas. Plaintiff also requests that this court enjoin Defendants and those acting on their behalf from employing more than three pickets in the area described herein. Plaintiff also requests that this court issue a Preliminary Injunction, and, following a trial in this matter, a permanent injunction.

A hearing was held on September 22, 1993, and testimony was delivered, and exhibits, including videotapes of both area news coverage and factory security surveillance of the incident, were received by the chancellor. Another hearing was held on September 29, 1993, and additional evidence was presented.

Prior to the beginning of the second hearing, Earle Industries filed a brief in support of its motions for a temporary restraining order and preliminary injunction. Simultaneously, Amalgamated filed a motion to dismiss and an alternative motion for summary judgment, asserting the allegations in the complaint were unsupported by “specific factual statements” and that adequate legal remedies were available for any future harm.

Following the September 29, 1993 hearing, the chancellor took the matter under advisement. On November 18, 1993, the chancery court issued an order granting to Earle Industries a temporary restraining order and denying the union’s motions to dismiss and for summary judgment. The order stated, in part:

The Court finds that Defendants’ action in (1) cutting the lock and chain on Plaintiff’s gate; (2) blocking traffic on that portion of Highway 64 in front of Plaintiff’s business; and (3) blocking Plaintiff’s right of ingress and egress to one of its drives, are actions that should be restrained and enjoined.
* * *
IT IS . . . HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant ACTWU, Southwest Regional Joint Board, Local 828, their officials, and others cooperating with them are RESTRAINED AND ENJOINED from:
(1) blocking or obstructing, or attempting to obstruct, the free use of the streets and highways adjacent to Plaintiff Earle Industries’ place of business, as well as passageways into and out of said business;
(2) going on Plaintiff’s place of business, unless invited by Plaintiff, and
(3) cutting or damaging Plaintiff’s property.

The union then filed this interlocutory appeal.

Temporary restraining order

As noted earlier, Amalgamated’s first point for reversal amounts to an appeal from a denial of a motion for summary judgment and is not subject to review on appeal. Moreover, as indicated above, part of the union’s second point for reversal is framed in terms of an appeal from the chancellor’s denial of the defense motion for summary judgment in its favor and is not appealable. See Daniels v. Colonial Ins. Co., 314 Ark. 49, 857 S.W.2d 162.

In the remaining portion of its second point on appeal, the union urges that the chancery court erred in granting Earle Industries’ motion for a temporary restraining order, the sole issue we may consider and to which we now turn.

In granting or refusing interlocutory injunctions, the trial court shall set forth the findings of fact and conclusions of law which constitute the grounds of its action and those findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard will be given the opportunity of the trial court to judge the credibility of the witness. Ark. R. Civ. P. Rule 52(a). Here, the chancellor’s findings were brief, but he was not asked to make further findings regarding irreparable harm. In any event, requests for findings are unnecessary for purposes of review. Ark. R. Civ. P. Rule 52(a). In reviewing the record before us, we hold the evidence is more than sufficient to show that Earle Industries had sustained irreparable harm at least to the extent the chancellor fashioned and tailored the narrow relief granted.

The applicable law in these matters is well settled. Arkansas courts have granted injunctive relief in situations where mass picketing, blocking, and intimidation are employed during a labor dispute. Smith v. F & C Engineering Co., 225 Ark. 688, 285 S.W.2d 100 (1955); Local Union No. 858 v. Jiannas, 211 Ark. 352, 200 S.W.2d 763 (1947). Smith v. F & C Engineering, supra, involved a labor dispute between a local labor union and an engineering company which refused to pay overtime. The union established a picket line at one of the engineering company’s plants. The trial court issued an injunction restraining union members from picketing the company’s places of business and from threatening or committing acts of intimidation or violence against the company’s business, employees, and customers. In granting the injunction, this court observed that:

It is well settled by the decisions of the U. S. Supreme Court and our own cases that peaceful picketing is allowed under the constitutional guaranty of freedom of speech in order that a union may acquaint the public with the fact and nature of a labor dispute and solicit public support in any lawful manner to prevail in the controversy. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Local Union No. 313 v. Stathakis, 135 Ark. 36, 205 S.W. 450, 6 A.L.R. 894. It is equally settled that the law does not countenance the use of threats, intimidation, force, coercion, violence or other unlawful means, however laudable the motive or purpose of the strikers. Riggs v. Tucker Duck & Rubber Company, 196 Ark. 571, 119 S.W.2d 507; 31 Am. Jur., Labor, § 240. In this connection the U.S. Supreme Court has held the state still may exercise “its historic powers over such traditionally local matters as public safety and order and the use of the streets and highways.” Allen-Bradley Local, W.E.R.M.W. v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L. Ed. 1154.

225 Ark. at 697, 285 S.W.2d at 105. (Emphasis added.)

In Jiannas, a local union was enjoined from the illegal picketing of a restaurant in Pine Bluff. In affirming the trial court, we quoted the following rules with approval:

“Permissible activities on the part of pickets do not include obstruction of access of customers. Pickets may not aggressively interfere with the right of peaceful ingress and egress to and from the employer’s shop, or obstruct the public thoroughfares. Picketing is not peaceful where the sidewalk or entrance to a place of business is obstructed by pickets parading around in a circle or lying on the sidewalk.”
* * *
“Picketing a place having direct dealings with the public, such as a restaurant, has been condemned in some cases because of its tendency to deter prospective patrons of the business by intimidation from entering the place of business. Thus, it has been decided that employees of a restaurant keeper who are on a strike, have no right to congregate about the entrance of his place of business and there, either by persuasion, coercion, or force, prevent his patrons and the public at large from entering his place of business or dealing with him.”
* * *
“Force threatened is the equivalent of force exercised. In many cases, it has been observed, it is difficult to draw the line of demarcation between intimidation and inoffensive persuasion. But even when the acts of the strikers, although unaccompanied by violence or threats, are such an annoy anee to others as to amount to coercion or intimation, they are unlawful.”

211 Ark. at 358-9, 200 S.W.2d at 766. (Emphasis added.)

We first point out that, while unlawful activities occurred in the case here, it can be said that the facts here existent do not quite reach the level of concern exhibited in either Smith or Jiannas. In Jiannas, union pickets and their sympathizers milled in the entrance way to a Pine Bluff restaurant, urged customers and employees not to enter. They cursed, bumped, and threatened people who did, or attempted to, enter, and one such man was beaten and severely injured. In Smith, evidence showed cars were parked up and down the road running by the company’s plant, and on one occasion, a truck was used to block the road. Employees were cursed, threatened, and frightened and the company’s general foreman was attacked by a union member. Evidence further revealed that nails had been placed in entrance and exit ways to and from the plant, causing numerous flats on company vehicles.

In the present case, a continuing strike was not involved. Even so, the proof showed that, in an earlier labor dispute and demonstration in October 1991, the Reverend Jackson led a similar march against Earle Industries, and he vowed to return. He kept that vow on September 14, 1993, and at the demonstration’s end, the Reverend Jackson again pledged to return a third time. Trespasser convictions resulted from both demonstrations. However, the 1993 demonstration posed more problems than those that arose in 1991. In fact, those problems in 1993 involved not only Earle Industries and its business and employees, but also the local law enforcement’s ability to control the demonstration.

The Chief of Police of Earle, Gregory Martin, offered the strongest testimony in support of Earle Industries’ request for an injunction. Chief Martin was the officer who observed a union member cutting the lock off the back gate of Earle Industries. He stated that the union demonstrators, numbering approximately sixty to seventy-five people, were heading toward the back gate when the man cut the lock. Chief Martin immediately arrested the man, and his officers then formed a line to stop the crowd from marching toward the gate. According to Chief Martin’s testimony, the demonstrators blocked Highway 64 and the entrance to Earle Industries’ factory. Ten to fifteen demonstrators’ vehicles blocked the east and westbound lanes of Highway 64. Chief Martin stated that several demonstrators refused to move their cars and that those cars were towed. About fifty people were sitting in the middle of Highway 64 when the officers arrived at the scene. Eventually, all of the protestors moved from the highway, but one individual had to be physically removed by Chief Martin. Demonstrators used banners to block Highway 64 and the factory’s entrance, and, while officers made arrests, the crowd chanted, “We shall not be moved.” Chief Martin stated that he employed all five officers of the Earle Police Department to control the demonstration and called for other backup because he was concerned that “things would get out of hand.” He added that, because of the demonstration, he had no officers available to respond to calls from other parts of town.

Employees of Earle Industries also testified that they were frightened and intimidated by the large group of protestors. Moreover, employees were distracted from their work because of the demonstration. Earle Industries enhanced security measures, using supervisors to monitor the situation. Pamphlets were distributed, claiming, “We Will Not Stop Until We Get Justice” and “The only thing Felsenthal understands is brute force.”

Amalgamated counters with evidence and testimony that it claims mitigates or conflicts with that presented by Earle Industries. While it is true that conflicting evidence was presented, it is sufficient to say that the chancellor was in a more favorable position than this court to judge credibility. After careful consideration of all the evidence, we hold that the chancellor’s decision was not clearly erroneous or clearly against the preponderance of the evidence and that, under the circumstances, he did not abuse his discretion in issuing the temporary injunction. See Smith v. F & C Engineering, supra', Ark. R. Civ. P. Rule 52(a).

Amalgamated presents an alternative argument that would require the trial court to balance the threat of irreparable harm to Earle Industries against the harm and injury the requested relief would inflict upon Amalgamated and to consider the effect that the injunctive relief would have upon the public. Roberts v. Van Buren Public Schools, 731 F.2d 523 (8th Cir. 1984).

Regarding a worker’s right to strike, this court in Local Union No. 858 v. Jiannas, supra, stated the following:

We do not hold or intend to decide anything which abridges these rights, but he must exercise them in a lawful manner. He may not employ force, violence, threats or intimidation, because in so doing he is interfering with the rights of others as sacred, and as much entitled to the protection of the law, as are his own rights.

211 Ark. at 357, 200 S.W.2d at 766.

Earle Industries has shown irreparable harm inflicted upon it as well as the threat of such harm in the future. The chancellor, however, issued no blanket injunction prohibiting Amalgamated from picketing or demonstrating. Nor would this court countenance such an injunction under the circumstances of this case. In balancing the harm to Amalgamated or the public against the irreparable harm to Earle Industries, the chancellor merely enjoined Amalgamated from engaging in the illegal activities shown to have occurred in 1991 and 1993. He did not, it must be emphasized, enjoin the union from conducting demonstrations. In other words, the chancellor only restrained union members from (1) blocking or obstructing, or attempting to obstruct, the free use of the streets and highways adjacent to Earle Industries’ place of business, as well as passageways into and out of said business; (2) going on Earle Industries’ place of business, unless invited; and (3) cutting or damaging Earle Industries’ property.

Although we affirm the chancellor’s granting of a temporary restraining order, Amalgamated is not without relief. If and when Amalgamated shows the chancery court that peaceful picketing and demonstrating can be carried on in a manner that will avoid the likelihood of a repetition of the unlawful activities found by the trial court as described in its order, it may do so. Upon making such a showing, it may seek modification of the court’s order. Smith v. F & C Engineering, supra.

Affirmed.

Dudley, Newbern, and Brown, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. Amalgamated Clothing and Textile Workers International Union raises three points of appeal. The first two can be summarily dismissed. The first point is that the complaint of Earle Industries, Inc. did not state a cause of action. The second is that Amalgamated was entitled to summary judgment. Both arguments are bypassed since the motion for a temporary restraining order was heard on its merits. The only real issue is whether a court of equity should have assumed jurisdiction to enjoin the commission of criminal offenses. The majority opinion holds that the chancery court properly assumed jurisdiction. I respectfully dissent.

I.

The undisputed facts are as follows. In October 1991, Reverend Jesse Jackson visited the plant of Earle Industries in support of Amalgamated’s efforts at negotiation and spoke from the back of a truck parked-in the Earle Industries’ employee parking lot. Earle Industries objected to the presence of Reverend Jackson and the Amalgamated supporters. Two Amalgamated supporters were arrested and charged with trespassing. Significantly, both trespass charges- were dismissed at the request of Earle Industries.

Almost two years later, on September 14, 1993, Amalgamated and its supporters, again including Reverend Jackson, held another rally in the City of Earle. The rally began with a speech by Reverend Jackson at Earle High School. After the speech, local law enforcement officers escorted Reverend Jackson and sixty to seventy-five Amalgamated supporters the short distance down State Highway 64 to the plant of Earle Industries. The main entrance to the plant is from Highway 64.

The management of Earle Industries, knowing that the Amalgamated supporters were coming to the plant, placed new chains on all gates and closed the main gates. The Amalgamated group reached the plant’s main gates just as the employees’ lunch break began. During the forty-five-minute lunch break the supporters remained in front of the closed main gates. They sang, chanted, and listened to another speech by Reverend Jackson. Two supporters were given police citations for obstructing traffic because their parked cars partially blocked Highway 64. Another supporter, who sat in the highway and had to be physically removed by the officers, was given a citation. A fourth Amalgamated supporter was cited by police for criminal mischief and criminal trespass after he cut the lock and chain on the plant’s back gate. All four later pleaded guilty to the criminal charges. During the rally a flyer was distributed. It was captioned, “We Will Not Stop Until We Get Justice.” The body of the flyer contained the sentence, “The only thing that Felsenthal [management] understands is brute force.”

II.

Arkansas remains one of the few states that still maintains separate courts of law and equity. Mark R. Killenbeck, Nothing That We Can Do? Or, Much Ado About Nothing? Some Thoughts on Bates v. Bates, Equity, and Domestic Abuse in. Arkansas, 43 Ark. L. Rev. 725 (1990); see Ark. Const, art 4. Under our separate court system, unless a cause of action is confided by the constitution exclusively to another court, it belongs exclusively, or concurrently, to the circuit court. State v. Devers, 34 Ark. 188, 198 (1879). The separation required by the Arkanas Constitution in cases such as the present was set out in Meyer v. Seifert, 216 Ark. 293, 225 S.W.2d 4 (1949), as follows:

That equity will not act to restrain ordinary violations of the criminal law, but will leave the task of enforcing the criminal laws to courts having criminal jurisdiction, is basic learning in our legal system. But it is equally basic that if grounds for equity jurisdiction exist in a given case, the fact that the act to be enjoined is incidentally violative of a criminal enactment will not preclude equity’s action to enjoin it.

Id. at 298, 225 S.W.2d at 7.

The sequence of conditions which are necessary before equity will enjoin a crime were set out in Webber v. Gray, 228 Ark. 289, 295, 307 S.W.2d 80, 84 (1957), as follows:

In general, these conditions are, that unless relief is granted a substantial right of the plaintiff will be impaired to a material degree; that the remedy at law is inadequate; and that injunctive relief can be applied with practical success and without imposing an impossible burden on the court or bringing its processes into disrepute.

Each of the three conditions must be met before equity will exercise jurisdiction and enjoin the commission of a criminal offense.

A.

The first condition is that the party seeking the equitable remedy will suffer the loss of a substantial right to a material degree if equity does not intervene. This substantial right must be weighed against any harm the injunction might cause. Smith v. Hamm, 207 Ark. 507, 181 S.W.2d 475 (1944).

1.

The direct losses of a substantial right suffered by Earle Industries in the past are losses occasioned by three misdemeanor trespass offenses and one criminal mischief offense. Earle Industries asked that two of the misdemeanor charges be dismissed, and they were dismissed. Consequently, it is hard to rationalize those trespasses now being of significance and, under these circumstances, cannot be said to be a loss to a “material degree.” The only other direct loss of a right was caused by the offender who cut the chain and was arrested for trespass and criminal mischief. Trespass and criminal mischief cannot be condoned, and Earle Industries did suffer the loss of a chain when the chain that locked the gate was cut. Earle Industries must have also suffered some worry about its security as a result of the criminal mischief. The offender who cut the chain pleaded guilty and was fined. There is no direct or circumstantial proof that the offender might again cut a chain locking a gate .or again commit criminal mischief. The other three losses of rights were indirect, as they concerned illegal parking and sitting in Highway 64. These three offenses would be more correctly described as adversely affecting the rights of the public.

2.

The losses suffered by Earle Industries must be weighed against any harm that might be caused by a court of equity assuming jurisdiction and granting relief. Four potential harms are always present when a case involves an injunction against criminal offenses. First, there is a potential harm in the possible conflict with the constitutional guarantee of the right to trial by jury. Equity does not afford a jury trial, and the absence of that protection is a substantial factor to be weighed against chancery assuming jurisdiction. Smith, 207 Ark. at 512, 181 S.W.2d at 478; see also Robert A. Leflar, Equitable Prevention of Public Wrongs, 14 Tex. L. Rev. 427, 429-33 (1936). Second, the proof necessary for a conviction in a criminal court is constitutionally designed to require a high standard of proof, proof beyond a reasonable doubt. The proof necessary to sustain a civil action for contempt is lesser, a preponderance of the evidence. Third, a court of equity can issue a show cause order, and the person cited must show why he should not be held m contempt. In a criminal proceeding the accused cannot be compelled to give evidence against himself. As a result, when a court of equity enjoins the commission of a crime, the person enjoined might be cited for contempt in a court of equity and stands to lose these three constitutional guarantees. Fourth, the person enjoined will suffer some stigma or embarrassment comparable to that suffered by being labeled a habitual offender because, before a court of equity assumes jurisdiction, there must be proof that the person enjoined committed acts of violence with such systematic persistence as to warrant a finding that they would be continued unless restrained. Local Union No. 858 Hotel & Restaurant Employees Int'l Alliance v. Jiannas, 211 Ark. 352, 200 S.W.2d 763 (1947).

The majority opinion intimates that a flyer entitled, “We Will Not Stop Until We Get Justice,” shows, in part, that a court of equity should assume jurisdiction. Before exercising jurisdiction in this type of case, a court of equity must always be aware that the right of free expression through speech and peaceful picketing is not to be endangered by the use of injunctions.

In summary, it is doubtful that Earle Industries would have suffered the loss of a substantial right to a material degree if equity had refused to exercise jurisdiction. It is even more doubtful when the “right” is weighed against the potential harms of equity exercising jurisdiction in this particular case.

B.

The second condition to be shown before equity exercises jurisdiction is that the remedy at law is inadequate. Except in narrow circumstances, equity will not enjoin the commission of a crime because the remedy at law is adequate, and criminal jurisdiction is in circuit court. The limited exception, articulated in Smith v. Hamm, 207 Ark. 507, 181 S.W.2d 475 (1944), arises when the criminal act is only “incidental” and there is a danger of “irreparable pecuniary injury to property or pecuniary rights of the complaining party.” Id. at 512, 181 S.W.2d at 478. In McGehee v. Mid South Gas Co., 235 Ark. 50, 55, 357 S.W.2d 282, 286 (1962), we slightly modified the Smith v. Hamm standard and said, “[T]he mere existence of a remedy at law does not deprive equity of such jurisdiction unless such remedy is ‘clear, adequate and complete.’” The exception giving equity jurisdiction thus turns on the “adequacy” of the criminal remedy. In this vein, the court of appeals wrote that “the Arkansas Criminal Code contains numerous provisions which punish this type conduct, and these matters may be laid to rest between the parties by their initiating appropriate criminal proceedings.” Maxwell v. Sutton, 2 Ark. App. 359, 363, 621 S.W.2d 239, 241 (1981). The limitations of this exception were recently affirmed in Bates v. Bates, 303 Ark. 89, 793 S.W.2d 788 (1990).

The majority opinion implies that equity can exercise jurisdiction in part because the Amalgamated supporters gathering outside the front gate prevented employees from leaving and entering the front gate. However, the criminal law provides that it is a felony to prevent employees from engaging in any lawful vocation. Ark. Code Ann. § 11-3-401 (1987). The majority opinion provides that equity can exercise jurisdiction in part because of obstruction of the highway. Yet obstructing a highway is a criminal offense. Ark. Code Ann. § 5-71-214 (Repl. 1993). The majority opinion states that Amalgamated supporters might trespass on Earle Industries’ property in the future. Yet those who might trespass on Earle Industries’ property can be charged with criminal trespass or criminal mischief. Ark. Code Ann. §§ 5-38-203 & 5-39-203 (Repl. 1993). The very fact of the four arrests, coupled with the fact that the violations stopped thereafter, shows that the remedy at law is “clear, adequate and complete.”

When an act constitutes a criminal offense, there must be repeated and systematic violations of the criminal lav/ before the remedy will be deemed “inadequate” and equity will intervene. The three cases involving labor union activities in Arkansas which are cited in the majority opinion clearly illustrate this requirement. In Smith v. F&C Engineering Co., 225 Ark 688, 285 S.W.2d 100 (1955), the first of the three cases cited in the .majority opinion, employees of F&C Engineering were repeatedly cursed and threatened with physical violence by union sympathizers. Bands of union sympathizers roamed near the place of employment and at times blocked the entrance. Employees were in real fear for their safety. On one occasion an employee had to seek a police escort to his home. Another quit his job rather than continue under the circumstances. A foreman was attacked with a blackjack. The same foreman’s pickup truck was tampered with to the extent that it would not run. Employees who crossed the picket line were told that the same thing would happen to them. A rock was hurled into an employee’s car. Oil and water were drained from a motorized machine. Each morning nails were strewn along the roads used by F&C Engineering and its employees, and they were plagued with numerous flats on company vehicles. Other threats were made over a considerable period of time. In upholding the grant of an injunction we observed:

In Local Union No. 858 Hotel and Restaurant Employees Int'l Alliance v. Jiannas, 211 Ark. 352, 200 S.W.2d 763, we held that acts of violence and coercion were committed with such systematic persistence as to warrant a finding that they would be continued unless restrained where pickets walked very close to the door and on several occasions had to be pushed aside by customers to gain entrance to the restaurant being picketed, and on one occasion a customer was knocked down with a pair of brass knucks and severely injured.

Id. at 698, 285 S.W.2d at 106.

It is noteworthy that the above-cited case of Jiannas is the second labor dispute case cited in the majority opinion. Yet it shows that the violence and coercion must have been pursued with a “systematic persistence” before the remedy at law will be deemed inadequate. In that case the union went on strike against a restaurant that had one front entrance, a five-foot-wide door. Picketers walked back and forth in front of the one entrance. While there were usually only two picketers, the union sympathizers often numbered from ten to thirty, and they milled around the building. Customers were brushed by picketers or supporters. One customer had to push his way into the restaurant; he was later knocked down with a pair of brass knuckles and severely injured. Other customers were told not to enter the business. They were told they would have trouble if they entered. Many customers were stopped. One lady testified that as she entered someone said, “Nobody but whores would go into that cafe.” On another occasion, as customers entered, someone shouted, “There go some sons of bitches now.” Both the owners and employees were frightened. The violence and threats of violence continued over a considerable period of time. While these threats of violence and actual violence continued, the restaurant’s business dropped by 90%.

The third case involving a labor dispute in Arkansas that is cited in the majority opinion also stands for the rule that a criminal statute will not be deemed inadequate until there have been repeated and continuous violations of the statute. In that case, Harrison v. Terry Dairy Products, Inc., 225 Ark. 953, 287 S.W.2d 473 (1956), the chancellor entered an order enjoining acts of intimidation and violence because the union had threatened physical harm to the company’s employees, used force to prevent the employees from entering their place of employment, used “goon squads” to follow employees and threaten and intimidate those employees until they quit work, beat and battered employees, and damaged the dairy’s plant. After the temporary injunction was entered, heavy charges of dynamite were planted in the milk bottling room and in each of the boilers of the dairy’s plant, and each was set off. An additional twenty-one sticks of dynamite were also found inside the plant and foreign substances were found in the gasoline tanks of the dairy’s trucks.

In contrast to the facts of those three cases are the facts of the case at bar. The majority opinion relies heavily on the testimony of the Earle Chief of Police, Gregory Martin. His cross-examination is abstracted, in part, as follows:

There were about fifty people sitting in the highway when we arrived, but we had to physically remove only one. Other than the one person I arrested for cutting the lock, I can’t say that any other person got on the company’s property. He is the only person we had to physically remove from the company’s property. The protestors came to the plant behind my police car, and we did not ask them to leave the area, because we were under the impression that they were going to stand right in front of the factory. We did ask them to move back off the property once they started moving towards the gate.

We escorted the crowd right up to the front gate. We did not ask them to completely leave the scene. We just tried to make sure they did not get on the company property, and we physical[ly] removed one man from the highway after asking him to move. When I first arrived at the front gate, there were no people sitting in the road. Ten to fifteen minutes later, people started sitting in the highway. At first, I was standing down by the front gate, then I saw the people in the road. I told everyone sitting in the highway they would have to move at that time. They were chanting “we shall not be moved.” After we asked them several times, everyone moved but the one person.

I didn’t hear any of the protestors make any threats of bodily harm to any other person. I didn’t see any of the protestors inflict any bodily harm on any other person. I am aware of no damage to the property, other than the lock being cut. I didn’t hear any threats of property damage being made by any of the protestors.

The two people arrested during the incident of October, 1991 were charged, but the charges were dropped because the staff at Earle Industries decided not to proceed with the charges. Of the four people arrested on September 14, 1993, one was arrested with respect to cutting the lock, one was arrested after he was removed from the highway, the other two were arrested for illegal parking when they came to claim their vehicles.

The facts of the case at bar do not rise to the same level of repeated harassing conduct as the facts of the cases cited by the majority. The remedy at law thus has not been shown to be “inadequate,” as that word is used in our cases, and, as a result, the court of equity erred in exercising jurisdiction to enjoin the commission of a criminal offense.

C.

The third condition is that injunctive relief can be applied with practical success and without imposing an impossible burden on the court or bringing its processes into disrepute. The initial part of this condition is that the relief can be applied with practical success. Here, the chancellor issued a temporary restraining order against Amalgamated that, in the language of the majority opinion, provides that “the union is simply enjoined from (1) blocking or obstructing, or attempting to obstruct, the use of adjacent highways and streets and business passageways; (2) going uninvited onto business property; and (3) cutting or damaging business property.” Thus, the temporary restraining order provides relief that is no different than that afforded by the criminal laws. The only difference is that it would be enforced with contempt powers. Thus, it does not seem that the court of equity has any more chance of success, as a practical matter, than the criminal courts.

III.

The basic issue in this case is the separation of the courts of law and equity mandated by the Constitution of Arkansas. We should follow the mandate of the Constitution. Equity should not enjoin the future commission of criminal acts in this case.

Newbern, J., joins in this dissent.

Robert L. Brown, Justice,

dissenting. I disagree with the majority’s conclusion that Earle Industries has shown that irreparable harm was inflicted upon it.

Our law is clear that a temporary restraining order will not issue unless a party seeking the order demonstrates to the court that there is a likelihood that irreparable harm will result without the temporary order. See Smith v. American Trucking Ass’n, 300 Ark. 594, 781 S.W.2d 3 (1989); Kreutzer v. Clark, 271 Ark. 243, 607 S.W.2d 670 (1980); Paccar Financial Corp. v. Hum mell, 270 Ark. 876, 606 S.W.2d 384 (Ark. App. 1980). Moreover, a temporary restraining order is an extraordinary remedy to be invoked only where the complainant’s right is clear, and there is no other adequate remedy. I Joyce on Injunctions, § 9, p. 18 (Matthew Bender & Co. 1909). Harm is only considered to be irreparable “when it cannot be adequately compensated by money damages or redressed in a court of law.” Kreutzer, 271 Ark. at 244, 607 S.W.2d at 671.

That irreparable harm was likely to afflict Earle Industries because of the 45-minute demonstration during the lunch hour on September 14, 1993, is not borne out by the record. I have no doubt that the demonstration caused the managers and some employees of Earle Industries inconvenience, frustration, and even consternation. There was some criminal activity (three persons were arrested for trespassing and a fourth for cutting a lock off a back gate) and the business operation was disrupted that day because of the activity. But the test for a temporary restraining order, as stated above, is irreparable harm that cannot be repaired or remedied by money damages or by our criminal laws. Under that test, I glean no proof of irreparable harm resulting from the demonstration or proof that irreparable harm was likely to oc.cur in the future in the absence of a temporary order.

The basis for the TRO was the Reverend Jesse Jackson’s two demonstrations at Earle Industries over a two year period: one in October 1991 and the demonstration in question on September 14, 1993. Earle Industries also pointed to the four arrests, the all-but-total blocking of its main entrance by the demonstrators for 45 minutes, and the partial impediment to traffic on U.S. Highway 64 caused by the marchers. The potential for future demonstrations was evidenced, according to Earle Industries, by a leaflet' distributed after the demonstration which stated that Reverend Jackson “declared that he will return and fight for the workers until there is a contract.” The leaflet also stated: “The only thing that Felsenthal [Earle Industries’ senior vice president] understands is brute force.” A union member in addition, told a television reporter that the law had failed another union member, and they were taking the law into their hands.

Despite the leaflet and the union member’s statement, a reading of the record makes it clear that local law enforcement agencies had this relatively brief demonstration well under control from the outset. Arrests were made and disturbances were contained. One man was dragged from U.S. Highway 64 by the Chief of Police of the Earle Police Department. Otherwise, there was no proof of physical confrontation. In short, public safety was not jeopardized. Enforcement of existing criminal statutes was sufficient to quell any disturbance. Speeches were made, and the demonstration was short lived.

This activity by the union was undoubtedly orchestrated as a media event. Admittedly, disruption to the business operations of Earle Industries did occur, but not irreparable harm, present or future. More dire circumstances must be shown to justify such a finding. A 45-minute rally during the lunch hour, even with all the attendant circumstances, simply does not qualify. Because only a modicum of evidence of likely irreparable harm to Earle Industries in the future exists and because the order addresses activities which are readily remedied under existing criminal law, there is no basis for invoking this extraordinary remedy. Furthermore, to issue a temporary injunction under these facts could well have the effect of thwarting peaceful demonstrations in the future. I would reverse the chancellor’s decision and void the order.

Newbern, J., joins.

       Another estimate placed the number of demonstrators between seventy and seventy-five, while one media source reported about two hundred.

      We note that Amalgamated cites Paccar Fin. Corp. v. Hummell, 270 Ark. App. 876, 606 S.W.2d 384 (1980), for the proposition that the plaintiff’s allegations of irreparable harm must stand unrebutted or must show that it will suffer irreparable harm absent an injunction. While this rule is correct as stated in Hummell, the rule does not mean that the mere offering of rebuttal evidence negates issuance of an injunction. In any event, we are holding that the chancellor did not err in deciding that Earle Industries would suffer irreparable harm in the absence of an injunction.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Carroll GRAVETT, Pulaski County Sheriff v. Judge Mary Spencer McGOWAN
    94-263
    886 S.W.2d 606
    Supreme Court of Arkansas
    Opinion delivered November 7, 1994

      Nelwyn Davis and Pamela D. Walker, for appellant.

      Winston Bryant, Att’y Gen., by: Dinah M. Dale, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appealing from an order in a mental health commitment proceeding, Pulaski County Sheriff Carroll Gravett claims that the Probate Court exceeded its authority by ordering him to transport a civil mental health respondent to a location outside of Pulaski County. We dismiss this action because the Sheriff lacked standing either to participate in the probate court proceedings below or to appeal the court’s orders.

Sheriff Gravett appeals from two transport orders issued by Pulaski County Probate Judge Mary Spencer McGowan during the course of certain probate proceedings involving a mental health commitment. He makes four assignments of error which can be consolidated into one issue: whether the trial court exceeded its authority by ordering him to transport an individual subject to mental health commitment to a place outside of Pulaski County.

On December 3, 1993, Judge McGowan conducted a hearing pursuant to Act 861 of 1989, as codified in Ark. Code Ann. § 20-47-215 (1987), relating to an involuntary commitment of an individual to a mental health center. Finding that the party was still affected by mental disease or defect and that he continued to present a clear and present danger to himself and others under the act, Judge McGowan ordered him committed to “the Little Rock Community Mental Health Center/Southwest Arkansas Counseling and Guidance Center/Split Rail Residential-Care facility/or other appropriate facility for an additional period not to exceed one hundred eighty (180) days.” This order also directed that Sheriff Gravett deliver the party from his residence in Little Rock to the Split Rail facility in Prescott, Arkansas.

On the following day, December 7, 1993, Sheriff Gravett filed a motion in the probate proceedings to set aside the trial court’s transport order and requested a hearing. A response to the Sheriff’s motion was filed on behalf of the State of Arkansas by the Office of the Prosecutor Coordinator requesting that the court deny the Sheriff’s motion and forthwith direct him to execute the court’s order. (Neither Sheriff Gravett nor the State of Arkansas were parties to the litigation, nor did they intervene as party litigants.)

On December 16, 1993, the court issued its order denying the motion and directed the Sheriff to transport the party in question to the residential-care facility in Prescott. The Sheriff immediately complied, and when the facility refused admission due to the party’s involuntary status, the Sheriff’s deputies returned the party to Pulaski County.

On December 22, the trial court again ordered the Sheriff to deliver the party to the facilty. The order provided in part that “[u]nder no circumstances shall the Sheriff return [the party] to his residence in Pulaski County.” Again, the Sheriff’s office transported the party to the facility and, again, admission was refused. On this occasion, Sheriff’s deputies left the party in Prescott.

Although Sheriff Gravett complied with both of the probate judge’s orders of transport, he now files an appeal on his own behalf, asking this court to declare that he was under no duty to do so.

Sheriff Gravett did not have standing in these proceedings as a party litigant, nor did he have standing to appeal under the circumstances. Granted, Ark. R. Civ. P. 24 permits, in part, intervention to anyone filing a timely motion where “[t]he applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” Polnac-Hartman & Associates v. First National Bank, 292 Ark. 501, 731 S.W.2d 202 (1987).

Stated another way, an intervention is a proceeding by which a person, not originally a party to an action, is permitted to and does become a party to the pending proceeding for the protection of some right or interest alleged by him to be affected by the proceeding. Wood Const. Co. v. Ford, 258 Ark. 47, 522 S.W.2d 408 (1975). Certainly, if Sheriff Gravett thought that the trial court’s action would impair or impede his duties or that his rights or interests needed protection, he could have appropriately intervened as a party to this probate proceeding under Ark. R. Civ. P. 24 and served appropriate notice of intervention as provided in Ark. R. Civ. P. 5..We have allowed intervention even after final judgment has been entered when there are “unusual or compelling circumstances” present. See Arkansas Best Corp. v. General Elec. Capital Corp., 317 Ark. 238, 878 S.W.2d 708 (1994); UHS of Arkansas, Inc. v. City of Sherwood, 296 Ark. 97, 752 S.W.2d 36 (1988). Even so, no motion to intervene was ever filed in this case.

Since Sheriff Gravett failed to intervene in these proceedings, he lacks standing to appeal to this court.

Appeal dismissed.


author: Robert H. Dudley, Justice. Tom Glaze, Justice,

text:
    Marcus CLAY v. STATE of Arkansas
    CR 93-1230
    886 S.W.2d 608
    Supreme Court of Arkansas
    Opinion delivered November 7, 1994

      Kearney Law Officers, by: John L. Kearney, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant Marcus Clay was charged with committing five sex offenses against five different victims at different locations over a one-year period. There was no allegation, and there was no proof at the preliminary hearing, that the five offenses were planned in advance as part of a single scheme. Appellant was seventeen years old when most of the crimes were committed and was eighteen years old when the case was tried. The victims were three to five years younger than he. The trial court ordered all five charges consolidated for trial and refused appellant’s motion to sever. The ruling was in error. We reverse and remand for new trials.

Four informations containing five charges were filed against the appellant. The charges were as follows:

Charges 1 and 2

On February 22, 1993, appellant was charged with two counts of rape by deviate sexual activity, committed against two different persons less than fourteen years of age. Count one of the information alleged that he inserted his finger in the vagina of one twelve-year-old girl in September of 1992, and count two alleged that he inserted his finger in the vagina of another twelve-year-old girl in January of 1993.

Charge 3

On March 5, 1993, appellant was charged with rape by forcible compulsion. It was alleged that he threw the victim to the ground and, by forcible compulsion, committed rape against her in May of 1992. The age of the victim was not pleaded, but it was not alleged that the victim was less than fourteen years of age.

Charge 4

On May 2, 1993, appellant was charged with rape by forcible compulsion. It was alleged that he committed rape against the victim by force in September of 1992. It was alleged that the victim was fourteen years old.

Charge 5

On August 10, 1993, appellant was charged with rape by deviate sexual activity. It was alleged that the victim was less than fourteen years of age and that on February 9, 1993, appellant inserted his finger in the victim’s vagina and told her to hold his penis.

Rule 21 of the Arkansas Rules of Criminal Procedure provides for joinder of offenses, and Rule 22 provides for severance of offenses. Both rules closely track the American Bar Association Standards relating to joinder and severance and must be construed together. The Commentary to Article VI of the Arkansas Rules of Criminal Procedure explains:

In concept and practice, joinder has traditionally enjoyed popularity among prosecutors, courts, and scholars in as much as it produces savings of time, money and effort.
As pointed out by Standards, Joinder and Severance, “[severance, on the other hand, is typically sought on the ground that a unified disposition of several charges or several defendants would put those proceeded against at an unfair disadvantage, due to confusion of law and evidence by the trier of fact and the ‘smear’ effect such confusion can produce.” Id. at 1.

Rule 21.1, which provides the prosecutor with broad latitude to effect joinder of offenses, provides for joinder when the offenses “(a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.” This joinder rule is much broader than the prior statutes, Ark. Stat. Ann. §§ 43-1009 & 43-1020 (Repl. 1964), and is designed to establish the outer boundaries of joinder of offenses. However, the liberal joinder rule is accompanied by a limiting severance rule that recognizes the grave risk of prejudice from joint disposition of unrelated charges and, accordingly, provides a defendant with an absolute right to a severance of offenses joined solely on the ground that they are of same or similar character. See Commentary to Article VI. The severance rule, Rule 22.2, provides in pertinent part:

(a) Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses.
(b) The court, on application of the . . . defendant other than under subsection (a), shall grant a severance of offenses:
(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense. . . .

A.R.Cr.R Rule 22.2(a)-(b)(i).

Prior to trial appellant argued that he had a right to severance since the offenses were joined solely because the crimes were of the same or similar character. The trial court agreed that the crimes were of the same or similar character, but denied the motion on the ground that the offenses also indicated a scheme, motive, propensity, and plan.

A single scheme or plan is discussed in the 1987 Unofficial Supplementary Commentary to Rule 21.1 as follows:

One who burglarizes an office on January 1 and a home on February 1 may be charged in the same.information with both offenses, since they are “of similar character.” He would be entitled to a severance under Rule 22.2(a), however, unless the offenses were part of a single scheme or plan or criminal episode. Even though roughly the same type of conduct might be argued to be involved in both burglaries, justifying joinder under Rule 21.1(b), the term “same conduct” in Rule 21.1(b) was probably intended to be read literally to refer to contemporaneous events and to permit joinder in a situation where, for example, a defendant robs three persons simultaneously.

In conformity with that commentary, in Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979), we said that when an informer went to the home of the defendant and purchased some marijuana and a week later went back and purchased two morphine tablets from the same defendant, the evidence was insufficient to show that the sales were a part of a single scheme or plan on the part of the defendant within the meaning of Rule 22.2. We reversed and remanded the case for a severance of the offenses. In a concurring opinion Justice George Rose Smith wrote:

Criminal Procedure Rule 22.2 gives the defendapt an absolute right to a severance when two or more offenses have been joined for trial solely on the ground that they are of similar character, but they are not part of a single scheme. Here the two offenses, sales of drugs, are unquestionably similar; so the controlling question is whether they were committed as part of a “single scheme or plan.”
I think it plain that they were not so committed. The purpose of Rule 22.2 is to give effect to the principle that the State cannot bolster its case against the accused by proving that he has committed other similar offenses in the past. Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). There are exceptions to that principle, however, as when two or more crimes are part of the same transaction, Harris v. State, 239 Ark. 771, 394 S.W.2d 135 (1965), cert. denied, 386 U.S. 964 (1967), or when two or more offenses have been planned in advance, as part of a single scheme. Ford v. State, 34 Ark. 649 (1879). The intent of Rule 22.2 must have been to carry into effect the spirit of those exceptions, by permitting the charges to be tried together when they are parts of a single scheme.
In drug cases the State cannot ordinarily prove that the accused sold drugs on one occasion by proving that he sold them on other occasions. Rios v. State, 262 Ark. 407, 557 S.W.2d 198 (1977); Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971). Such proof of other sales, as we pointed out in Sweatt, would merely show that the accused had dealt in drugs before and hence was likely to do so again.

Teas v. State, 266 Ark. 572, 575, 587 S.W.2d 28, 30 (1979) (Smith, J., concurring).

The Commentary to Section 2.2(a) of the ABA Standards relating to Joinder and Severance, Approved Draft, provides:

The joinder together for one trial of two or more offenses of the same or similar character when the offenses are not part of a single scheme or plan has been subjected to severe criticism over the years. Generally, the test for whether joinder is proper involves weighing of the possible prejudice to the defendant from joinder against the public interest in avoiding duplicitous, time-consuming trials in which the same factual and legal issues must be litigated. See United States v. Haim, 218 F. Supp. 922 (S.D.N.Y. 1963); United States v. Teemer, 214 F. Supp. 952 (N.D.W.Va. 1963). On this score, joinder of offenses not part of a single scheme or plan is difficult to justify. “[Sjince the offenses on trial are distinct, trial of each is likely to require its own evidence and witnesses. The time spent where similar offenses are joined may not be as long as two trials, but the time saved by impanelling only one jury and by setting the defendant’s background only once seems minimal.” Note, 74 Yale L.J. 553, 560 (1965). Against this small gain from joinder, it has been observed: “We all know that, if you can pile up a number of charges against a man, it is quite often the case that the jury will convict, where, if they were listening to the evidence on one charge only, they would find it wholly insufficient as to the degree of proof required.” Maguire, Proposed New Federal Rules of Criminal Procedure, 23 Ore. L. Rev. 56, 58-59 (1943).

The same commentary also provides that two of the most compelling reasons for granting a severance of offenses without a specific showing of prejudice are:

(1) Undue limitations on the defendant’s right to testify in his own behalf. Prejudice may develop when an accused wishes to testify on one or some, but not all, of joined offenses that are distinct in time, place, and evidence. If he testifies on one count, he runs the risk that any adverse effect will influence the jury’s consideration of the other counts. Thus he bears the risk on both counts, although he may benefit on only one. Moreover, a defendant’s silence on one count would be damaging in the face of his express denial of the other. Thus he may be coerced in testifying on the count upon which he wished to remain silent. Cross v. United States, 335 F.2d 987, 989 (D.C. Cir. 1964),

(2) Prejudice through introduction of evidence which fails to meet the other crimes test. If an accused is prosecuted on each charge separately, the evidence of the other crimes will not be admissible under the other crimes rule, Rule 404 (b). Thus, by joining unrelated offenses together for trial, a prosecutor might bring about the evil to be avoided by the general rule that the evidence of other crimes is not admissible: “The likelihood that juries will make ... an improper inference.” See Note, 74 Yale LJ. 553, 556-57 (1965); and Drew v. United States, 331 F.2d 85, 90 (D.C. Cir. 1964).

The State asks us to uphold the trial court’s ruling as part of an exception to the general “other crimes” rule that we have carved out allowing the State to show that the accused has a “depraved sexual instinct.” An analysis of our cases shows the exception does not go nearly as far as the State suggests.

The analysis of our cases on this subject begins with Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), in which we wrote:

Again, where the charge involves unnatural sexual acts proof of prior similar offenses has been received. Hum mel v. State, 210 Ark. 471, 196 S.W.2d 594; Roach v. State, 222 Ark. 738, 262 S.W.2d 647. Such evidence shows not that the accused is a criminal but that he has “a depraved sexual instinct,” to quote Judge Parker’s phrase in Lovely v. United States, 4th Cir., 169 F.2d 386.

Id. 223 Ark. at 335, 266 S.W.2d at 807.

We expanded this reasoning slightly in Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987), when we said, “However, we will allow such testimony to show similar acts with the same child or other children in the same household when it is helpful in showing ‘a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.’” Id. at 71, 732 S.W.2d at 455. Following this reasoning, we affirmed a trial court’s ruling allowing into evidence proof of a prior similar conviction when a sixty-eight-year-old defendant was charged with the sexual abuse of a two-and-one-half-year-old girl. George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991). In Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992), we affirmed allowing the testimony of other very young girls about the sixty-three-year-old male defendant’s actions toward them. In Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992), the adult defendant committed the crime of rape against two of his nieces, ages seven and nine. All three lived in the same house, and the defendant committed both acts within a month and in a similar fashion. Citing Morgan and Rule 404(b), we said, “[A]s the facts necessary to prove these offenses would be required in both trials and as each of the girls’ testimonies would be admissible in the trial of the other’s rape to show appellant’s intent, motive, or common scheme or plan, the trial court did not abuse its discretion in refusing to sever the two cases.” Id. at 124, 835 S.W.2d at 854-55.

In Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992), the defendant committed the crime of rape against his two daughters, ages four and seven, in their home. Quite appropriately we quoted from Free, restating our position that such testimony would be allowed to show proclivity toward this behavior with persons with whom the defendant has an intimate relationship. Id. at 497, 837 S.W.2d at 477.

The facts in Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993), are so different from the facts of this case that the same principles of law are not applicable. The facts of that case are set out in that opinion as follows:

In this case, appellant was charged with four counts of rape involving three victims. All of the alleged events occurred at appellant’s home. Two of the victims J.L. and D.W. testified that they were at appellant’s home at the same time when appellant told both victims to come into his bedroom where he performed oral sex on one victim while the other child performed anal sex on appellant. Each of these victims testified that appellant performed oral sex on them and J.L. testified that he also saw appellant perform oral sex on D.W. D.W. also testified that appellant performed anal sex on him on a different occasion. M.H. testified appellant asked him to come back in his bedroom while there were other boys in the house and appellant performed oral sex on M.H. As all this evidence would have been admissible at the trial of each charge to prove motive, intent or plan, it was not an abuse of the trial judge’s discretion to deny severance.

Id. at 520, 863 S.W.2d at 577.

The unconnected crimes charged in this case do not involve the same child or other children in the same household, and they do not show that type of “depraved sexual instinct” evidenced by a sixty-year-old man who commits a sexual offense against a seven-year-old boy or girl. Here, a seventeen- or eighteen-year-old man was accused of committing five unconnected sexual assaults against five different girls from three to five years younger than he.

Equally as important, the consolidation of these five unconnected cases did not assist in showing intent or lack of mistake in each of the other charges. In two of the cases the charge was rape, and the proof in those cases showed that the appellant had sexual intercourse by force. The intent necessary for conviction in these cases was that the appellant “purposely” forced the victims to have sex with him. Ark. Code Ann. §§ 5-2-202 & 5-14-103 (Repl. 1993). However, three of the charges were quite different as they involved rape by deviate sexual activity with persons less than fourteen years of age. These are “strict liability” crimes. See Ark. Code Ann. Commentaries § 5-14-103(a)(3) (1989). In these cases the State does not have to prove that the accused “purposely” had sex with a person under fourteen years of age. A person who has sexual intercourse or deviate sexual activity with one less than fourteen years of age is guilty of the crime, regardless of how old he or she thought the victim was, and regardless of whether there was consent. There are affirmative defenses, but it is up to the defendant to prove them. The point is that because the definitions of the different crimes require different culpable mental states, joinder in the case at bar did not show an overall proof of intent.

In summary, the alleged offenses occurred over a twelve-month period, involve different charges, and were committed in different manners, against different victims, at different locations. They did not involve “similar acts with the same child or other children in the same household . . . showing ‘a proclivity toward a specific act with a person or class of persons.’” Free, 293 Ark. at 71, 732 S.W.2d at 455. There was no allegation or proof that the five offenses were planned in advance as part of a single scheme. There was no allegation or proof these crimes were part of one criminal episode. Since these five crimes were of a similar character, but were not part of a single scheme or plan, the appellant had “a right to a severance of the offenses.” A.R.Cr.P. Rule 22.2(a) (emphasis added). In addition, the culpable mental state required to be proved was different for some of the crimes. Both the severance rule and our cases mandate reversal and remand for new trials.

Appellant next argues that we should dismiss, rather than reverse and remand, because of insufficiency of the evidence of two of the five verdicts. In order to preserve a sufficiency of the evidence argument for appellate review, motions for directed verdict must be made at the close of the State’s casein-chief and again at the close of all evidence. Jackson v. State, 316 Ark. 405, 871 S.W.2d 591 (1994); Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992). A challenge to the sufficiency of the evidence, whenever it is made, requires a specific motion to apprise the trial court of the particular point raised. Jackson, 316 Ark. at 407, 871 S.W.2d at 592.

Appellant has failed to abstract any motion for directed verdict. Nonetheless, the State, in compliance with Ark. Sup. Ct. R. 4-3(h), has abstracted parts of the transcript where arguably the motions were raised and denied. Even though appellant may have interposed directed verdict motions, such motions lacked the specificity to preserve the issues on appeal.

At the close of the State’s case, appellant’s counsel stated that he would “like to move for directed verdict based on insufficient evidence to support a jury verdict.” This motion was inadequate to preserve appellant’s appeal since the motion was not specific enough to apprise the trial court whether appellant was challenging all the charges or only one, two, three, or four of them. See Walker v. State, CR 94-563 (Ark. October 3, 1994).

Additionally, at the close of all of the evidence, appellant again failed to articulate a specific motion for directed verdict, but instead, the record reflects that the defense renewed all its motions which had been denied earlier. This court has held that Rule 36.21 of the Arkansas Rules of Criminal Procedure is to be strictly construed, and, thus, an implied motion for directed verdict will not be accepted. Jackson, 316 Ark. at 406, 871 S.W.2d at 592 (1994).

Appellant next argues that the trial court erred in denying his motion to suppress his confession. We dispose of the argument in a summary fashion. There were contradictions in the testimony on this issue, and the trial court is not required to believe any witness’s testimony, especially that of the accused, since he is the person most interested in the outcome of the motion. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). Based on the totality of the circumstances, we cannot hold that the trial judge erred in refusing to suppress appellant’s confession.

Appellant’s other points of appeal are not likely to arise again upon retrial, and we do not address them.

Reversed and remanded.

Glaze and Corbin, JJ., dissent.

Tom Glaze, Justice,

dissenting. The majority opinion fails to point out that this court’s case law, concerning when severance of offenses should be granted, has held that the testimony of other rape victims is relevant in a criminal trial for the rape of two underage girls to show motive, intent or plan under Ark. R. Evid. 404(b). Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992); Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993); Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). As discussed in Lukach, the court stated that, where the facts necessary to prove the offenses would almost all be required in each trial if severance were granted and the evidence would be used in both trials to prove a plan, scheme, motive or state of mind, there is no abuse of discretion in refusing to sever the cases. The majority ignores the rule announced in these cases, and instead, it burrows in on the narrower language employed by this court’s A.R.Cr.P. Rule 22.2(a), which provides that a defendant shall have a right to a severance of offenses with which he or she is charged when those offenses are of the “same or similar character and are not part of a single scheme or plan." In sum, case law offers reasons why the factors listed in Ark. R. Evid. 404(b) should be considered when a trial court grants or denies a severance of offenses, and under the existing case law, the trial court is not limited to the factors of “single scheme or plan” set out in A.R.Cr.P. Rule 22.2(a).

Without mentioning the broader legal standard permitted trial courts under Rule 404(b) when ruling on severance issues, the majority makes a valiant effort to distinguish factually the cases of Simpson, Richardson and Lukach from the situation presented in the present case. The majority seems to suggest such sex abuse offenses can be joined only when the offenses occur in the same household, but the opinion never clearly says why. Because the factual pattern, scheme, plan, motive or intent in sex abuse offense cases are never developed or manifested in quite the same way, I submit the “same household” factual distinction mentioned in the majority opinion begs the question.

Under the Simpson, Richardson and Lukach principle and rationale, the trial court has broader discretion and a wider range of situations to consider than what the majority wishes to acknowledge by its “same household” holding. An analysis of the evidence presented the trial judge in the present case graphically explains why his ruling was proper under the factors set out in Rule 404(b).

At trial, Clay claimed he was entitled to severance under A.R.Cr.P. Rule 22.2(a) because the state joined his five sex abuse cases for trial based solely on the ground that these offenses were of the same or similar character, and the offenses were not shown to have been a part of a “single scheme or plan.” In rejecting Clay’s pretrial motion, the trial court found that the five offenses were not only similar, but also the offenses, occurring over a nine-month period, involved young female children who had interrelated relationships or friendships with one another.

At trial, Clay’s cross-examination of the five girls was directed at establishing either that he was elsewhere when the offense occurred, that the girls gathered and agreed to bring sexual allegations against Clay or that the girls were permissive. In short, Clay’s defense was that he never had sex, or at least involuntary sex, with any of the five girls. To the contrary, each girl testified Clay’s sexual advances were the results of his having arranged an unplanned or unscheduled visit with the victim, and his violation or penetration of each was combined either with force or fear and intimidation. Also, as mentioned above, the state’s evidence showed Clay’s propensity was to prey on young girls who had common relationships or friendships. The trial judge evaluated this evidence and ruled it showed scheme, motive, propensity and plan. In my view, the judge did not abuse his discretion in reaching such a decision.

I would also mention that A.R.Cr.P. Rule 22(b) provides that, if a defendant’s pretrial motion for severance is overruled, he may renew the motion on the same grounds before or at the close of all the evidence and that severance is waived by failure to renew the motion. Here, Clay renewed his severance motion, but failed to abstract it. For this reason, too, the trial court should be affirmed.

In conclusion, I would concede that, in deciding the severance issue on its merits, the trial court’s ruling would be more difficult to sustain if limited to the terms and factors in A.R.Cr.P. Rule 22.2(a). Nonetheless, this court has not restricted itself to those factors as is made plain in Simpson, Richardson and Lukach. This court should either overrule or follow them. The majority opinion does neither. Instead, it ignores the different or broader principle those cases set out than what is called for in Rule 22.2(a). In following those cases, I would affirm the trial court.

Corbin, J., joins this dissent.

       One victim did testify that she arranged to see Clay on the day the offense was alleged to have occurred, but also stated he raped her by use of force.


author: Robert H. Dudley, Justice.

text:
    STATE of Arkansas Office of Child Support Enforcement v. John M. MORRISON
    94-344
    885 S.W.2d 900
    Supreme Court of Arkansas
    Opinion delivered November 7, 1994

      Steve C. Jennings, Dep’t of Finance and Administration, for appellant.

      Byron Thomason, for appellee.
   Robert H. Dudley, Justice.

In March of 1992, a mother assigned her right to establish paternity of her son, and her right to collect child support, to the State of Arkansas’s Office of Child Support Enforcement. In April 1992, the Office of Child Support Enforcement, appellant, filed a paternity suit against John M. Morrison, appellee. In the suit, appellant Office sought a declaration of paternity, current and back child support, lying-in expenses, health care insurance, and costs. The chancellor heard the case, determined paternity, and, in order to immediately start child support payments, set the amount of child support appellee Morrison currently is to pay. The chancellor’s initial order, entered on October 5, 1993, provided that “the issue of reimbursement of back child support, medicaid expenses, or AFDC benefits paid by the plaintiff on behalf of the aforesaid child is hereby reserved for litigation at a later date.”

The parties disputed a part of the initial order, and, on December 3, 1993, the chancellor entered a modified order. The second order provides, “[I]n order to commence child support payments by the defendant, the parties agree that the three (3) paragraphs set out above and' the issues related thereto shall not be made a part of this order. However, this order shall not act as a final order thereon, whereby the three paragraphs (3) above and the issues related thereto shall be reviewed by this court at a later date convenient with this court and the parties.”

The Office of Child Support Enforcement seeks to appeal from the second order. We dismiss the appeal. This court has long held that the record must disclose a final adjudication of the matter in controversy between the parties for this court to have jurisdiction. Campbell v. Sneed, 5 Ark. 398 (1843). This requirement is now a part of the Arkansas Rules of Appellate Procedure. Ark. R. App. P. 2(a). An order which adjudicates fewer than all of the claims of the parties does not terminate the action. ARCP Rule 54(b). It is not enough to decide some of the claims. See Parks v. Hillhaven Nursing Home, 309 Ark. 373, 829 S.W.2d 419 (1992). The trial court may direct final judgment with regard to fewer than all of the claims by an express determination that there is no just reason for delay. ARCP Rule 54(b). When an appropriate certification is made by the trial court, we will consider the judgment final for purposes of appeal. See Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987). The failure to comply with Rule 54(b) presents a jurisdictional issue which we raise on our own, and absent compliance with the Rule, we dismiss the appeal for lack of a final order. Middleton v. Stilwell, 301 Ark. 110, 782 S.W.2d 44 (1990). Accordingly, we dismiss this appeal.

Appeal dismissed.


author: David Newbern, Justice.

text:
    Jerry Ray REEL v. STATE of Arkansas
    CR 94-771
    886 S.W.2d 615
    Supreme Court of Arkansas
    Opinion delivered November 7, 1994

      Mikke Connealy Bracey, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Jerry Ray Reel stands convicted of second degree battery, burglary, and aggravated robbery and sentenced to concurrent terms of imprisonment of 12, 40, and 120 years respectively. He raises two points of appeal. He contends Judge Samuel H. Turner should have recused and not presided at the trial because Judge Turner had recently been the victim of a robbery and a burglary and thus could not be impartial. He also argues it was error for Judge Turner not to have declared a mistrial when a witness mentioned that Mr. Reel had a “record.” We hold that Judge Turner did not abuse his discretion in declining to recuse and that the refusal to declare a mistrial was not error.

Upon entering his home, Gene Richardson, aged 78, was confronted by an intruder he later identified as Mr. Reel. Mr. Reel struck Mr. Richardson on the head with a pistol and placed the gun to Mr. Richardson’s head and threatened to kill him if he did not cooperate. Mr. Richardson was dragged on the floor to his bedroom where his billfold was stolen as were other items including guns and clothing. Mr. Reel then departed in Mr. Richardson’s truck.

On the day before the trial Mr. Reel offered an unconditional plea of guilty. Judge Turner refused to accept it, stating that because he had been a victim of both a robbery and a burglary, he did not feél he could be impartial in prescribing punishment.

On thejday of the trial, outside the hearing of the jury, the defense made a recusal motion, referring to Canon 3 of the Arkansas Code of Judicial Conduct and to Judge Turner’s having been a crime victim within the preceding six months. Judge Turner stated he took the motion very seriously but felt that, as long as he was not to be the one to set the punishment, an area where he might be subconsciously affected by his experience as a victim, he could preside with total impartiality.

Officer Marvin Crawford, who was in charge of gathering fingerprints from the crime scene and sending them to the FBI for comparison, testified for the State. The exchange which drew Mr. Reel’s mistrial motion and is the subject of appeal was as follows:

CRAWFORD: And at that time, upon determining the identification of Mr. Reel, I then asked for a comparison test between the prints of Mr. Reel and the prints I lifted from the scene.
PROSECUTOR: Okay. It’s not a situation where you just send prints and say identify these, is it?
CRAWFORD: No.
PROSECUTOR: You send them up some prints to compare?
CRAWFORD: Right.
PROSECUTOR: And that’s practice and procedure?
CRAWFORD: That’s true.
PROSECUTOR: Now, Mr. Crawford, so you put all the latent print lifts that you had and sent them to the FBI lab, is that correct?
CRAWFORD: That’s correct.
PROSECUTOR: You did receive those back at a later time?
CRAWFORD: I did. .
PROSECUTOR: Did you also send some prints for comparison?
CRAWFORD: I’m sorry, I didn’t understand that.
STATE: Did you send some prints of the defendant for comparison?
CRAWFORD: Okay. At that time, based on Mr. Reel’s previous record, his file or his prints were already on file with the FBI.

The Trial Court denied the motion.

1. Recusal

Mr. Reel relies heavily on Canons 2 and 3 of the Arkansas Code of Judicial Conduct. Those Canons provide:

Canon 2: A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE’S ACTIVITIES.
Canon 3: A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY.
* * *
B. Adjudicative Responsibilities.
(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.
=t= * *
E. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. . . .

Mr. Reel contends Judge Turner’s impartiality could reasonably be questioned in this case because he was a victim of some of the same crimes charged against Mr. Reel and because the Judge admitted his concern whether it would be proper for him to impose a sentence. He argues the Trial Court’s bias was displayed when his motion for a mistrial was denied.

Arkansas Const, art. 7, § 20, and Arkansas Code of Judicial Conduct Canon 3(c) provide that judges must refrain from presiding over cases in which they might be interested and avoid all appearances of bias. Matthews v. State, 313 Ark. 327, 854 S.W.2d 339 (1993). We will not, however, reverse a judgment on the basis of a trial judge’s decision not to disqualify unless we conclude the judge committed an abuse of discretion. Matthews v. State, supra; Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). To decide whether there has been an abuse of discretion, we review the record to determine if prejudice or bias was exhibited. See Patterson v. R.T., 301 Ark. 400, 785 S.W.2d 777 (1990); State v. Williams, 458 A.2d 1295 (N.J. Super. A.D. (1983)).

The circumstance of a trial judge’s unfortunate encounters with the same crimes charged against the accused is not mentioned in Canon 3, nor have any of our cases confronted the issue. There is, however, authority from other jurisdictions suggesting a judge should not be disqualified because of his or her life experiences. For example, in State v. Williams, supra, the defendant in a products liability action involving a defective industrial machine sought to have the judge disqualified because the judge suffered an injury to his hand in a similar industrial accident thirty years before. In finding this argument to be meritless, the Appellate Division reasoned as follows:

A judge ordinarily is not disqualifiable because of his own life experiences. Obviously a judge is not disqualified from presiding at an automobile accident because he was once himself in an automobile accident. Nor is a judge disqualified from trying a divorce case either because he is himself married or divorced, or from trying a contested adoption case because he has either natural children or adopted children.

The Court said, however, that “there may be a specific situation which would render it appropriate for a judge to recuse himself in a particular case.”

The decision not to recuse is affirmed when there is no abuse of discretion. Judge Turner was in the better position to determine if his recent experience would compromise his impartiality. An examination of the record reveals that Mr. Reel and his counsel were treated fairly, and there is nothing to indicate prejudice on the part of Judge Turner. The punishment was decided by the jury, which sentenced Mr. Reel to the maximum enhanced term of imprisonment for each conviction as provided by the habitual offender statute. Judge Turner decided the sentences were to be served concurrently, which suggests leniency at the very phase of the proceedings with respect to which he was concerned about his impartiality.

2. Mistrial

As Judge Turner pointed out in response to the motion, a mistrial is a drastic remedy to which resort should be had only when there has been an error so prejudicial that justice cannot be served by continuing the trial. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994). The decision whether to grant a mistrial is within the sound discretion of the trial court. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988).

Judge Turner admonished the jury to disregard Officer Crawford’s reference to Mr. Reel’s prior record. Mr. Reel contends the statement was so prejudicial that a mistrial was the only appropriate remedy.

In Scherrer v. State, supra, we held that an admonition to the jury was proper to cure a reference a witness made to the defendant’s being “arrested for the first time” and to “the first time [the defendant] got locked up.” In Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991), we held that a policeman’s inadvertent reference to a previous charge against the defendant did not require a mistrial when, as in this case, an admonition had been given to the jury to disregard the testimony.

We cannot say there was an abuse of discretion in denying the motion for a mistrial.

Affirm.