Johnson Timber Corp. v. Sturdivant

OPINION ON REHEARING SETTING ASIDE ORIGINAL OPINION OCTOBER 17, 1988

Darrell Hickman, Justice. On June 6, 1988, we handed down our decision in this case with Justice John Purtle delivering the opinion for the majority and Special Justice Mike Gibson dissenting. Justice Glaze did not participate. The appellants have filed a petition for rehearing, alleging any number of reasons therefor. The appellant Georgia-Pacific Corporation has filed a motion suggesting that Justice Purtle disqualify from further participation in this case because he has a personal claim pending against Farmers Insurance Company, the insurer of one of the appellants.

Georgia-Pacific has also asked the remaining justices to consider disqualifying in view of the decision of the Supreme Court of the United States in Aetna Life Ins. Co. v. Lavoie, 106 S. Ct. 1680 (1986), and the more recent decision in Liljeberg v. Health Services Acquisition Corp., 486 U.S_, 108 S. Ct_, 100 L. Ed. 2d 855 (198 8). In Aetna Justice Embry, who wrote the opinion for the Alabama court in a 5/4 decision, was discovered to have personally filed two lawsuits against insurance companies which involved the same issues as the Aetna case. It was suggested that Justice Embry had written an opinion deciding his own lawsuits. The United States Supreme Court ordered the decision set aside. As it turns out, Justice Purtle has a claim against an insurance company of one of the appellants and that claim relates to the issue of an independent contractor which is the main issue in this case. We would not presume Justice Purtle intentionally erred or knew Farmers Insurance was involved in this lawsuit, but it was his duty as the judge assigned to write the opinion to know it. His personal legal business should never conflict with his role as a justice, and it is his duty, not ours or others, to see to that.

Justice Purtle has recused from further participation in this case and filed a contemporaneous opinion stating his position. His participation in the case, whether it was inadvertent or not, cannot be overlooked.

There is no doubt that, in view of the decisions in Aetna and Liljeberg, our decision must be set aside and resubmitted for consideration, and that is our order. It is our further duty which has given us pause and concern. Should we all remain in the case? Should we all disqualify and ask for a completely new panel of judges? Should we make that decision individually or as a body?

First, there is no doubt that the United States Supreme Court decisions do not require that we recuse from further participation. The petitioner, Georgia-Pacific, makes much of Justice Brennan’s concurring opinion in Aetna, but it was a concurring opinion and was not adopted by the majority. In fact when the case was resubmitted to the Alabama Supreme Court, none of the other justices recused on the ground they had been influenced by Justice Embry.

This does not mean, however, that any individual justice should hesitate to disqualify if he decides to do so. What a judge can do and ought to do are not always the same.

The choice is undoubtedly an individual one. We have considered the fact that the decision was not unanimous; we have considered the fact there was a special justice participating; we have considered our duty to the appellees who are entirely innocent in this matter, who have won their lawsuit at the trial level and essentially prevailed on appeal; and we have considered the nature of our decision. It was not a routine case and would unquestionably be an important precedent for future litigation. While we did not, in the opinion authored by Justice Purtle, overrule any of our prior decisions, a strong argument can be made that we did indeed depart from past decisions and head in a new direction.

Finally, we have considered the reputation of this court and its meaning to those who come to us for final judgment regarding their rights, privileges and liberties. While we are not expected to be a perfect institution, we are expected to always try to do the right thing. It is not easy to sit in judgment of one’s self. Frankly, some of us believe we should remain in the case, others do not. Given the unavoidable choice of letting a decision stand under a cloud or removing the cloud entirely, we choose the latter. Considering all the circumstances in this case, we have decided it would be in the best interest of all concerned for each of us to step aside and allow the governor to appoint seven special justices to decide the case. At least that way all the parties are where they started before this unfortunate matter surfaced.

We therefore set aside our decision in this case. We will each notify the office of the governor of our recusal in accordance with the Arkansas Constitution.

Special Justice Gibson joins in this opinion. Glaze, J., not participating. 758 S.W.2d 417 DISQUALIFYING OPINION OCTOBER 17, 1988

John I. Purtle, Justice. COMMENTS UPON RECUSAL

Rule 27 of the Rules of the Supreme Court reads as follows:

Whenever it is desired to suggest the disqualification of a Judge of this Court in a case to be submitted, the attorney so desiring shall present the matter to the Court in consultation a reasonable time before the day of submission of the case. [Emphasis added.]

This case was originally scheduled for submission on February 8, 1988, but was subsequently withdrawn because of the recusal of a justice. The appeal was formally submitted to this court for consideration on March 14, 1988. On that same date, this case was orally argued before the court by the attorney for Georgia-Pacific. The opinion of this court was delivered on June 6,1988. Glaze, J., not participating. Special Justice Mike Gibson, dissenting. The motion suggesting disqualification and petition for rehearing were filed on behalf of Georgia-Pacific on June 23, 1988.

No suggestion of disqualification was timely or properly made in this case. The rule requires the party suggesting disqualification to present the matter to the court in consultation a reasonable time before the day of submission. This motion and its very consideration by this court completely ignore the plain words of Rule 27. Moreover, I interpret the rule to provide for a direct consultation between the justice concerned and the attorney suggesting disqualification.

I am not participating in the petition for rehearing in this case because of the manner in which the appellant Georgia-Pacific has handled the petition and the motion suggesting disqualification. For the record, I wish to state that I had no knowledge that Farmers Insurance Group had any interest in this case until I was informed of the motion and petition by a newspaper reporter who had received copies of these documents before I did. (The original record is no longer available. It was checked out and “misplaced” by appellant Georgia-Pacific subsequent to the opinion of this court.)

I have done absolutely nothing improper or unethical. Nevertheless, this motion and petition, and the overt accusations concerning this justice’s ethics contained therein, have no doubt created in some minds the impression that I have somehow acted with impropriety or with the appearance of impropriety. Consequently, to avoid even the appearance of impropriety, and to preserve the integrity of this court and our civil justice system, I hereby recuse from participation in the consideration of this petition for rehearing.

There is not a precedent-setting word in the entire opinion. I will say nothing further to defend my ethics and integrity in this unfortunate situation. However, considering the action by the court in vacating the opinion, I am compelled to state that the original opinion set out above is proper and correct. Let the legal community decide whose ethics are questionable and who followed the law.