Skokos v. Gray

Tom Glaze, Justice, concurring. I concur with the majority opinion. Certiorari does not lie to disqualify a judge from hearing a proceeding unless the judge is proceeding illegally, or in want, or in excess, of his or her jurisdiction. No legal authority is cited in support of employing certiorari to remove a judge in the midst of a proceeding and good reasons for rejecting the use of this extraordinary remedy for such purposes are set out in the majority opinion.

Having said the above, I am concerned over the obvious ill will that has arisen between counsel and the chancellor, and how it has obviously impeded reaching a final decision in this case. After fifteen months from the filing of this case, the parties were still hearing “temporary” custody matters. Their bad feelings have apparently existed through most of this case and are now the cause for this case coming to a standstill — at least until this court’s ruling on the certiorari-recusal issue.

In listening to the audio tape of an August 25, 1994 hearing, it is clear that this case has become a contest of wills of the chancellor and counsel, and seems less to do with resolving the parties’ differences in the divorce suit. This court, at this stage of the parties’ case, has decided procedurally that it is unable to resolve the recusal issue. Nonetheless, if issues like the ones that have occurred in the past continue to occur in future proceedings, the recusal issue could well be the basis of a future appeal. If reversal based upon a failure to recuse should occur on appeal, the parties’ case would then require retrial of all issues.

At this point, fault has not been discussed in specific detail or placed solely with either counsel or the trial judge. A brief period of calm for reflection now exists, and recusal might be seriously considered by the judge, considering the special circumstances and history of this case. The parties’ interests and resolving their differences should be paramount. Canon 1 of the Arkansas Code of Judicial Conduct is especially noteworthy to any member of the judiciary, since that canon makes it the judge’s duty to establish and maintain high standards of conduct and to observe those standards so as to preserve the integrity and independence of the judiciary. In other words, when others lose their composure, demeanor or even their professionalism, judges must keep theirs intact even when tested or provoked. On occasion, being right or vindicated of an alleged wrong does little towards establishing a high standard of conduct. The parties in this case are entitled to have their divorce case heard and decided free of personal diatribe between members of the bench and bar.