Boswell, Tucker & Brewster v. Shirron

ROBERT L. Brown, Justice, dissenting. The essential issue in this case is whether the circuit judge could, first, disqualify from all cases in which the Boswell Law Firm represented a party and, then, reconsider his order and revoke it. The Boswell firm urges that the circuit judge lost jurisdiction once he disqualified. The Attorney General, on behalf of the circuit judge, posits (1) that the circuit judge issued a transfer order and not an order of disqualification, and (2) that, in any case, disqualification is a discretionary matter with the trial judge for which prohibition does not lie. The majority concludes that the record does not support the fact that the circuit judge disqualified himself. I disagree. It is no exaggeration to say that the disqualification issue permeates every aspect of this case.

On this point, the majority believes that the circuit judge’s affidavit and the petitioner’s affidavit cannot be considered by this court because they are not part of the record. Again, I disagree. Clearly, the circuit judge’s affidavit should be reviewed because that affidavit is part of the file in the Supreme Court Clerk’s office. Indeed, the respondent attached the affidavit to his original response to the petition for prohibition. On October 9, 1995, this court issued a per curiam order requesting “a full record and recitation of the material facts.” See Boswell v. Shirron, 322 Ark. 111 , 906 S.W.2d 315 (1995). By happenstance, on that same date the Attorney General responded on behalf of the trial judge and attached to his filed response an affidavit of the respondent which read in part:

I was surprised at Ted Boswell’s suggestion that I had not appeared impartial to his law firm. Although the suggestion was unfair and totally without merit, my initial reaction was that if the Boswell Firm did not want me hearing cases in which they were involved, I would not do so. I signed the proposed order and it was filed on May 25, 1995. A copy of the order is attached as Exhibit “1” to the Petition for Writ of Prohibition.

The Boswell firm then attached to its revised petition its own affidavit which discusses the trial judge’s disqualification. It is also part of the file in this matter.

The respondent now asks in his revised brief that we not consider his affidavit. But this belated request should not be the basis for concluding that there is no proof of the circuit judge’s disqualification before this court. I would look to the circuit judge’s affidavit as evidence of an initial disqualification on his part. I would also consider the petitioner’s affidavit filed in this matter with the revised petition. We asked for a recitation of material facts in our per curiam order and that is what the affidavits provide.

But regardless of the affidavits, the precise terms used in the circuit judge’s first uniform order support the fact that he is disqualifying from all future Boswell firm cases. When a trial judge disqualifies from a case, it is common practice to transfer that case to another trial judge. See, e.g., Bolden v. State, 262 Ark. 718 , 561 S.W.2d 281 (1978). That is precisely what was done in this case by the first uniform order. The only difference here is that the circuit judge disqualified from all future Boswell firm cases instead of one particular case.

Having said this, the petitioner’s claim for a writ of prohibition appears to have dubious validity because the Seventh Judicial District Circuit Court has jurisdiction over cases involving the Boswell firm in that judicial district regardless of whether the individual circuit judge does. Lee v. McNeil, 308 Ark. 114 , 823 S.W.2d 837 (1992); Hobson v. Cummings, 259 Ark. 717 , 536 S.W.2d 132 (1976). Yet, in the past when a writ of prohibition would not lie in a case, we have considered a writ of certiorari as an alternative remedy. See, e.g., Bates v. McNeil, 318 Ark. 764 , 888 S.W.2d 642 (1994); Juvenile H. v. Crabtree, 310 Ark. 208 , 833 S.W.2d 766 (1992). Certiorari is not appropriate to control a judge’s discretion on recusal matters. Skokos v. Gray, 318 Ark. 571 , 886 S.W.2d 618 (1994). But it is a suitable remedy to correct procedures erroneous on the face of the record and where no other adequate remedy exists. Foreman v. State, 317 Ark. 146 , 875 S.W.2d 853 (1994); Lupo v. Lineberger, 313 Ark. 315 , 855 S.W.2d 293 (1993).

I would treat this petition as one for certiorari and address the merits under our general superintending authority. Ark. Const, art. 7, § 4. The issue before us is not recusal but whether an individual circuit judge lost jurisdiction to preside over future cases where the Boswell Law Firm represented a party. An appeal does not represent an adequate remedy because cases involving the Boswell firm are undoubtedly being scheduled in the respondent’s court. I respectfully dissent.

ROAF, J., joins.