McCoy Farms, Inc. v. J & M McKEE

George Howard, Jr., Justice, dissenting. The majority concedes that the chancellor erréd in excluding appellants’ Arkansas attorney fr;om the courtroom on motion of appellees’ attorney under the pretext that appellees’ attorney might find it necessary to call appellants’ Arkansas attorney as a witness. 1 Thus, leaving appellants without the aid and assistance of their Arkansas attorney who was well versed in Arkansas law and trial procedure. Appellants had only their Mississippi attorney who stated that his familiarity with Arkansas law and trial procedure, at best, was limited. 2 However, the majority goes on to affirm the ruling of the trial court by finding that appellants have not been prejudiced by the exclusion of its only Arkansas attorney from the proceedings, the position taken by the majority is untenable for two major reasons and consequently, I must dissent from the holding of the majority.

First, the right of a litigant to counsel of his choice is so fundamental and basic under American Jurisprudence that prejudice is presumed to have resulted without the Court having to indulge in nice and dainty calculations as to the amount of prejudice arising from its denial. 3

In Powell v. Alabama, 287 U.S. 45 (1932), the United States Supreme Court, in emphasizing the right of a party to be heard by a counsel of his choice and that that choice may not be diminished by nefarious platitudes, made the following observation:

“If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.” (Emphasis added)

The majority has further found that even though appellants’ Arkansas attorney was excluded from the proceedings, “[t]he legal question seems to have been adequately presented.” But under the instructions of Powell v. Alabama, supra, appellants were not even afforded a legitimate hearing. In other words, the proceedings below were a mere formality.

In Reynolds v. Cochran, 365 U.S. 525 , which involved a habeas corpus proceeding, the trial court proceeded with the hearing in the absence of petitioner’s retained counsel; petitioner advised the court that his counsel was on the way and was due to arrive on the date of the trial, and asked that the trial be postponed until his counsel arrived; the court denied a continuance and concluded, as the majority has concluded in this action, that if it was error to proceed without petitioner’s counsel, it was harmless error in that the only fact at issue in the proceeding had been admitted by the petitioner. The Supreme Court in reversing the trial court concluded that a party has a constitutional right to be heard by counsel of his choice and a failure to hear a party by counsel, employed by and appearing for him, in any civil or criminal case, denies a party a hearing and therefore denies him due process of law in the constitutional sense.

In Prudential Ins. Co. of America v. Small Claims Court of City and County of San Francisco, et al, 77 Cal. App. 2d 379 , 173 P. 2d 38 (1946), the court made the following statement:

. . There can be little doubt but that in both civil and criminal cases the right to a hearing includes the right to appear by counsel, and that the arbitrary refusal of such right constitutes a deprivation of due process.” (Emphasis added)

Secondly, the majority takes the position that inasmuch as the proceedings in this case are reviewed de novo, there has been an independent review and consideration of all of the evidence in the record, consequently, there is no merit to appellant’s contention that he has been prejudiced one way or the other in the trial court. Thus, the majority found that the transaction is not usurious and therefore, the trial court should be affirmed. But it must be remembered that during oral argument, and indeed this is to be gleaned from the record, counsel for appellants stated that because of the trial court’s ruling in excluding certain evidence, but proffered by the counsel for appellants, all of the evidence available to appellants to support its defense of usury was not introduced. Hence, the majority in order to defend the posture which it has assumed in this case has had to speculate on the weight, materiality and authenticity of the evidence that is not in the record. Indeed, the majority has exceeded the scope and latitude of appellate review.

Finally, the following from 16 Am. Jur. 2d P. 973, Section 569, sums up succinctly the thread intended to be woven in this dissent:

“. . . no one may be legally divested of his property unless he is allowed a hearing before an impartial tribunal, where he may contest the claim set up against him, and be allowed to meet it on the law and facts and show if he can that it is unfounded. He must be given his day in court.” (Emphasis added)

Rule 615 pf the Unifprm Rules ef Evidence, which became effective July 1, 1976, and, censequently, in fprce during the trial ef this case, provides: At the request cf a party the ccurt shall crder witnesses excluded se that they cannet hear the testimony ef ether witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person désignated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause. (Emphasis added)

During oral argument, counsel stated that this rule was not called to the attention of the trial court, consequently, it seems that both counsel and the court were unaware of the existence of this rule.

On one occasion, the Mississippi attorney solicited advice from the trial court on a point of procedure; and on another occasion, counsel for appellees volunteered advice to the Mississippi counsel on a point of procedure during the course of the trial.

See: People v. Bryant (1969) 79 Cal. Rptr. 549 , 275 C.A. 2d 215, [although a criminal case] the court held that the deprivation of effective counsel is of sufficient constitutional significance to merit reversal even without actual prejudice.