Petition — Weston v. Arkansas

Supreme Court brief1979

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| bons RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. A 56

Josern H. WESTON .....-.----+eeeeee eee ee sees: Petitioner |

STATE OF ARKANSAS .......---000eeeeeeeeeeeeee Respondent |

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

BRIEF FOR PETITIONER

JosepH H. WEsTON

pro se

P.O. Box 84

Cave City, ARKANSAS 72521

GENERAL PUBLISHING COMPANY

Table of Contents

LIST OF AUTHORITIES

U.S. Supreme Court opinions in New York Times v. Sullivan, and

Garrison v. Louisiana, quoted in Weston v. Arkansas

Gaines v. Kerner, 1972, 404 U.S. 519, 30 L. Ed. 2d 652, 92 CT. 594,

496 Reh. Den. 405 U.S. 948, 30 L. Ed. 918, 92 S. Ct. 963

Truman Bolden and Dozier Bolden v. State of Arkansas,

January 30, 1978, Justice George Howard

Joseph H. Weston v. State of Arkansas, CR 75-49, 528 S.W. 2d 412

Special Justice Leroy Autry, complete

Report found in appendix

INDEX OF APPENDIX

NN CN Gey G haces nscowsedesccsccccccce

Order assigning Judge H. A. Taylor .....................0.5.

Majority Opinion of Case being appealed ....................

Dissenting Opinion of Case being appealed ..................

WE ce scene access ccs cccccccccccce

Arkansas Freedom of Se WON etre kt

Truman Bolden and Dozier Bolden v. Arkansas ....................

Joseph H. Weston v. State of Arkansas, 1975.....................

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. A 56

SE OE I idis 4 bibs chk ey soot dan oe ee Petitioner

vs.

dk | = ror Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

BRIEF FOR PETITIONER

PETITIONER’S PRAYER

Joseph H. Weston, petitioner, hereby respectfully requests

the Supreme Court of the United States to issue a Writ of Cer-

tiorari to review the opinion’ and judgment entered by the

Supreme Court of Arkansas in this proceeding on February 12,

1979, and upon which a second hearing was denied April 30,

1979.

The Supreme Court of Arkansas is the court of last resort

in that state and all means of appeal there have been exhausted.

OPINION BELOW

The majority opinion of the February 12, 1979 decision

was written by Acting Chief Justice Stephen L. Matthews, a

one-case appointee of then Governor David Pryor, and con-

curred in by Acting Associate Justice Richard H. Wootten, also

a one-case appointee of that Governor.

The majority opinion, to which the names of ONLY

Matthews and Wootten were affixed, affirmed AN

UNRECORDED ORAL ORDER of November 19, 1977, in

trial court in Independence County Circuit, by Circuit Judge

Andrew G. Ponder, who was absolutely without jurisdiction in

the matter by reason of having been replaced with the appoint-

ment of Special Judge Robert Dudley on a written order of

Chief Justice Carlton Harris of the Arkansas Supreme Court.

A dissenting opinion was issued over the name of Associate

Justice John I. Purtle, a regularly elected member of the

Supreme Court, who recommended a reversal of the trial court

decision because of error.

The vote — if any — of the court was en banc, and the

names of four remaining regular members of the court who are

presumed to have voted, were not recorded in the decision.

Thus, on its face, the decision resulting from the two opinions

showed that only THREE members had voted or expressed an

opinion out of a total membership of seven members of the

court.

Both the two-judge so-called majority decision, and the

one-judge dissenting opinion are presented in the appendix of

this petition and are to be found on Pages 106 through 116 of

the Record of Docket Entries.

TIME FOR FILING & EXTENSION

Time for filing ran for 90 days from April 30, 1979, the date

of the denial of a second hearing. Denial on Page 123 of Record

of Docket Entries, and also is found in the appendix to this peti-

tion.

On a timely request filed by petitioner, Mr. Justice Harry

Blackmun issued an order on July 21, 1979 extending the time

for filing to and including September 27, 1979. A copy of his

order is found in the appendix to this petition.

GROUNDS FOR JURISDICTION

The grounds upon which the jurisdiction of this court is in-

voked follow:

a. By ignoring plain facts and law, and by basing its deci-

sion primarily upon alleged technical deficiencies of petitioner

as a pro se lawyer, the Supreme Court of Arkansas ruled con-

trary to the well-established Doctrine of the United States

Supreme Court that protects the right of a person to represent

himself in court. °

b. By affirming the lower court decision of Judge Ponder

and its subsidiary decisions of Judge Dudley, the Supreme

Court countenanced and confirmed petitioner’s deprivation of

liberty (14 days in jail of a 6-month sentence; and property

($400.00 cash premium on a $4,000.00 bond), the wrecking of

his business and cessation of his income, all without due process

of law, in violation of the First and XIV Amendments to the

Constitution of the United States, and Violation of the First and

XIV Amendments to the U.S. Constitution, and contrary to the

freedom of press opinions expressed in the historic New York

Times v. Sullivan and Garrison vy. Louisiana of the United States

Supreme Court. References to these opinions in this case are

found in the appendix, in opinion of Judge Leroy Autry in the

Report of Joseph H. Weston v. State of Arkansas, decision in the

Arkansas Supreme Court entered October 20, 1975.

c. And by refusing to supervise or discipline Judges Ponder

and Dudley for their unlawful actions, the Supreme Court

denied the petitioner his right of equal protection under the law,

also in violation of the XIV Amendment to the U.S. Constitu-

tion.

d. By approving Judge Dudley’s having forced petitioner

under duress of immediately being returned to jail, in a

November 18, 1977 subsidiary court session to recant

statements he had published in his newspaper previously and

statements made OUTSIDE the court months previously, the

Supreme Court denied petitioner his rights of free press and free

speech, in violation of Sec. 6, Article II of the Constitution of

Arkansas, and the First Amendment to the United States

Constitution.

QUESTION NO. 1

A. Did the Supreme Court err by ignoring the fact that

petitioner had made a clear showing of a set of circumstances

for which he was entitled to relief? (Jailed, bonded, denied

rights of free press and free speech, destruction of his business

by creating a situation of terror in which Weston’s customers

were afraid that they, too, would be jailed as Weston was?)

B. And by delivering a decision based primarily on

technical legal practice deficiencies alleged to have been com-

mitted by petitioner, who through urgent necessity, represented

himself before that court?

C. It appears to petitioner that the Supreme Court’s

foregoing actions flagrantly flout the well-established Doctrine

of the United States Supreme Court that a person should be

protected in his right to represent himself. This Doctrine was

clearly presented to the Arkansas Supreme Court early in the

proceedings in petitioner’s Reply Brief, page 29, a part of the

Record now before this court, by quoting the following

authority:

Pro se complaints, according to the U.S. Supreme Court,

are “held to less stringent standards than formal pleadings

by lawyers.

‘And regardless of who represents plaintiff, a motion to

dismiss is nat granted unless it appears beyond a

reasonable doubt that plaintiff can prove no set of cir-

cumstances which would entitle him to relief.”

Gaines v. Kerner, 1972 404 U.S. 519, 30L Ed. 2d. 652, 92 Ct.

594, 496 Reh Den 405 U.S. 948 30L Ed. 918, 92S Ct 963

QUESTION NO. 2

Did the Supreme Court err by affirming the unrecorded

oral order on November 19, 1977, of Judge Ponder, who on that

day assumed jurisdiction over matters pertaining to Joseph H.

Weston and the Independence County Grand Jury when he was

absolutely without authority to do so?

Judge Ponder’s written recusal (Page 40 of the Record of

Docket Entries) fileemarked December 12, 1977, re-affirms that

he had orally recused himself on October 21, 1977, some 29

DAYS BEFORE he had falsely taken the bench and assumed

jurisdiction over matters pertaining to Joseph H. Weston and

the Grand Jury. A copy of this Order of Recysal is reproduced

verbatim here:

On this, the 5th day of December, 1977, the above-styled

cause comes on for consideration, it being determined that

Judge Andrew Ponder on the 21 day of October, 1977

recused himself from hearing any matter in which Joseph

H. Weston is a party so long as Weston has any pending

action in any court in which Judge Ponder is a defendant,

this recusal is re-affirmed.

WHEREFORE, it is ORDERED and ADJUDGED that

on the undersigned’s motion the undersigned again recuses

himself herein and requests that another Judge be assigned

to preside over the above-styled case; and the Clerk of this

court is authorized to inform the Chief Justice of the

Supreme Court and the litigants, Joseph H. Weston and

Leroy Blankenship for the State of Arkansas of this order

by transmitting a copy to each of them; and also in CIV

77-190. Signed by: ANDREW G. PONDER, Circuit

Judge

Likewise, the order assigning Chancellor Robert Dudley to

replace Judge Ponder, signed by Chief Justice Carlton Harris of

the Supreme Court on October 25, 1977, was issued TWENTY-

FIVE DAYS before the unlawful judgment on Weston’s affairs

was rendered by Judge Ponder on November 19, 1977. Chief

Justice Harris’ order appears over his signature on page 11 of

the Record of Docket Entries, and is presented verbatim

herewith:

Order Concerning Assignment of Judges

No. 77-117

Under authority vested in the Chief Justice of the Supreme

Court of Arkansas Act 496 of 1965 as amended, Judge

Robert Dudley of the Eighth Chancery Circuit is hereby

assigned to the Third Judicial Circuit to hear ALL

MATTERS PERTAINING TO JOSEPH H.

WESTON’S APPEARANCE BEFORE THE

INDEPENDENCE COUNTY GRANT JURY

This assignment includes all ancillary proceedings which

may arise in connection with said cause and proceedings

subsequent thereto. The hearing of said cause and

proceedings subsequent thereto shall be held at such time

or times and shall be directed and ordered by Judge

Robert Dudley.

The assignment of Judge Dudley to the Third Judicial Cir-

cuit entails only additional duties and jurisdiction in the

Eighth Chancery circuit shall remain in Judge Robert

Dudley to the same extent as though this assignment had

not been made.

SPECIAL PROVISIONS: None.

This order made and entered on this 25th day of October,

1977. Signed by Carlton Harris, Chief Justice

It was not until December 13, 1977, in a new order, that

Chief Justice Harris replaced Judge Dudley by appointing Cir-

cuit Judge H.A. Taylor of the Eleventh Judicial Circuit to

assume jurisdiction over matters pertaining to Joseph H.

Weston and the Independence County Grand Jury in subse-

quent proceedings that are not shown in this cause. Judge

Taylor still holds that Jurisdiction, the Chief Justice’s order for

which appears in the appendix to this petition.

Special Judge Robert Dudley, who properly held jurisdic-

tion on order of Chief Justice Carlton Harris, WAS NOT

PRESENT at court sessions held on November 19, 1977 in

matters pertaining to Joseph H. Weston.

Judge Andrew Ponder took the bench in violation of the

Chief Justice’s order of assignment and:

1. Made a misleading and perjurious statement to the press

that he was resuming jurisdiction in the Weston case because a

lawsuit by Weston against Ponder in Lawrence Circuit Court

had been dismissed. (That suit, was in fact, on timely and

recorded appeal to the Arkansas Supreme Court, and Ponder

had been properly served with notice of that fact.)

2. Judge Ponder overruled an objection by the Honorable

Steve Engstrom, attorney for Charles Pajterson, and on a plea

of Prosecuting Attorney Blankenship, that Patterson’s testi-

mony to the Grand Jury was necessary in the Weston pro-

ceedings, ordered Patterson to so testify.

4. Later that day, the Grand Jury returned four indictments

of perjury against Weston and presented them in oj 1 court to

Ponder, again sitting on the bench.

4. Ponder, without authority to do so, accepted the in-

dictments and orally ordered the arrest of Weston, setting

Weston’s bond at $4,000.00.

5. Weston was arrested on the afternoon of November 19,

1977 and held in jail overnight pending the posting of bond.

6. The foregoing facts were, and are, a matter of public

knowledge in Batesville, Arkansas, a city of 10,000, and in

Weston’s nearby hometown, a city of 1,000 and throughout the

area of the trial, by reason of a full newspaper account publish-

ed under the by-line of Roy Ockert, Jr., managing editor of the

Batesville Guard, and a thoroughly esteemed and reputable

journalist, being at that time the president of the Associated

Press Managing Editors’ Association for Arkansas. A copy of

his eye-witness and publicly signed account appears on Page 82

of the Record of Docket Entries.

7. The True Bill containing the above-noted four counts of

perjury is co be found on Page 46 of the Record of Docket En-

tries before this court.

Weston had been previously sentenced to six months in jail

and actually served 14 days in jail in this cause and further

notice is taken of this fact at another place in this petition.

THEREFORE, petitioner has made a clear showing that

Judge Ponder acted absolutely without jurisdiction in the

Weston case on November 19, 1977, and has never had jurisdic-

tion therein since his recusal on October 21, 1977.

The Arkansas Supreme Court had previously ruled, in the

case of Bolden v. State, on a similar situation, in which the opi-

nion had been written by Associate Justice George Howard Jr.

In the case of Truman Bolden and Dozier Bolden v. State of

Arkansas, CR 77-89 561 S.W. 2d 281, January 30, 1978, Justice

Howard’s decision follows:

““We are persuaded that appellants’ contentions two and

four have merit, and, accordingly, the verdicts and judg-

ment are reversed.

“The record reflects that Circuit Judge Hargroves, in

response to appellees’ motion, voluntarily disqualified

himself from participating in this case at the inception of

the pretrial conference held on October 22, 1976. Having

announced from the bench and for the record his dis-

qualification, Judge Hargroves lost jurisdiction of the case

and was without authority to act further in any judicial

capacity except to make the proper transfer of the case or

take the appropriate steps for the selection of another

judge. However, this reflects that the transfer of the case

was not made until after Judge Hargroves had selected a

new jury commission, instructed the new jury commission

on its duties and responsibilities and ruied on the validity

of appellants’ motion challenging the charges pending

against them on the grounds that no preliminary hearing

had been afforded appellants.

The judge’s voluntary disqualification may have, in the

judgment of appellants and their counsel, amounted to an

admission of his bias and prejudice, and for the judge to

proceed with issues, raised by defendants, involving the ex-

ercise of discretion, may have further supported their

doubt or suspicion of the impartiality of his rulings.

Indeed, the proper administration of the law requires not

only that judges refrain from actual bias but also that they

refrain from all appearances of unfairness.

“Judge Hargroves, however, is to be commended for his

voluntary,action, whether he actually sheltered any bias or

not, in order to dispel any thought or suspicion that the

litigants might not be receiving a fair trial.

“In 48 C.J.S., Sec. 97, at page 1105, it is provided:

“The disqualification of a judge generally deprives him of

authority to perform any judicial act or to perform any act

calling for an exercise of judicial discretion in connection

with the pending cause, except to select another judge or to

make a transfer of the case in accordance with the law.””

The complete report of the Bolden v. State of Arkansas case,

including Justice Howard’s quotations of Law and Authorities,

appears in the appendix to this case.

QUESTION NO. 3

PETITIONER QUESTIONS LEGALITY AND

PROPRIETY OF DECISION AS A DOCUMENT

Both the “Majority” and the Dissenting opinions are found

in the appendix of this petition. They also are found on pages

106 through 116 of the Record of Docket Entries, which in its

entirety has been certified to be made up of true and correct

copies of the original documents on file in the office of the Clerk

of the Supreme Court of Arkansas.

Thus, being certified as true copies of the two documents as

actua,iy filed, this collective decision DOES NOT MEET THE

REQUIREMENTS OF THE CONSTITUTION OF THE

STATE OF ARKANSAS.

Sec. 49 of Article VII of the Arkansas Constitution reads:

All writs and other judicial process shall run in the name of

the state of Arkansas, bear test, and be signed by the clerks

of the respective courts from which they issue. Indictments

shall conclude: ‘‘Against the peace and dignity of the state

of Arkansas.”

Neither document bears the statement that it “runs in the

name of the State of Arkansas”, nor does it bear the seal of the

Arkansas Supreme Court. And this, alone, disqualifies both

documents from being official instruments.

Sec. 19, Article V (Legislative) of ihe Constitution of

Arkansas is the Legislative department’s companion article to

Sec. 49 of the Judiciary department, and reads:

Sec. 19, Article V: ‘““The style of the laws of the General

Assembly shall be, Be it enacted by the General Assembly

of the State of Arkansas’”

It is common knowledge throughout the state that the

General Assembly, through oversight (or knavery) has from

time to time left the enacting clause out of legislation, and when

discovery of this was made, the legislation was immediately

nullified. This has happened to one or more bills in just about

every session of the legislature in the entire history of the state!

The Arkansas Constitution even more stringently applies a

similar authority-giving section to the Executive department of

the state:

Sec. 10, Article VI — ‘“‘All grants and commissions shall be

issued in the name of, and by the authority of the State of

Arkansas, sealed by the Great Seal of the State, signed by

the Governor, and attested by the Secretary of State.”

THUS, THE FRAMERS OF THE ARKANSAS

STATE CONSTITUTION OF 1874 MADE IT

CRYSTAL CLEAR THAT THEY EXPECTED

EVERY DOCUMENT ISSUED IN THE NAME OF

AND BY THE AUTHORITY OF THE STATE OF

ARKANSAS TO BEAR AN OFFICIAL

STATEMENT OF THAT FACT.

The other two “equal departments” of the state govern-

ment scrupulously follow these constitutional provisions, and it

is surprising that the Supreme Court, which should keep itself

in a position to set an example for the rest of the state to follow

in legal affairs, should be so errant in the production of an of-

ficial document. 5

Petitioner Weston called attention of the Supreme Court to

this constitutional aberration directly in Section II of his

PETITION FOR SECOND HEARING AND RE-

ORGANIZATION OF THE COURT.

This petition is to be found on Pages 118 and 119 of the

Clerk’s Certified Record of Docket Entries.

The Arkansas Supreme Court denied petition for a

SECOND HEARING AND RE-ORGANIZATION OF THE

COURT, and totally ignored petitioner’s allegations of un-

constitutionality. Page 123 of the Record of Docket Entries.

Please note that the court order denying Weston’s petition

for a Second Hearing WAS signed by the Clerk of the Court,

and DID bear test, and DID bear the seal of the Arkansas

Supreme Court.

And this gives rise to Weston’s claim herewith, that the

manner in which the Decision of the Supreme Court of

February 12, 1979 in the cause of Weston v. Arkansas was issued,

was exceptional, and has deprived Weston of equal protection of

the laws of Arkansas.

Numerous other emissions of the State Supreme Court

found throughout the Record of Docket Entries also bear test,

seal, and signature of the Clerk.

THEREFORE, inasmuch as the Test requirement was ex-

pected of petitioner, and inasmuch as he adhered to it in his

own submissions to the State Supreme Court and its subor-

dinate courts, petitioner Weston claims justly that he has suf-

fered great inconvenience, labor and expense in a long fight

since February 12, 1979, to defend himself against an erroneous,

illegal, and unconstitutional document emitted by the Supreme

Court of Arkansas in violation of the Constitution of Arkansas,

and contrary to the XIV Amendment to the Constitution of the

United States.

Section 3, Article II, Constitution of Arkansas, reads:

“The equality of all persons before the law is recognized,

and shall ever remain inviolate; nor shall any citizen be

deprived of any right, privilege or immunity, nor exempted

from any burden or duty on account of race, color or

previous condition.”

QUESTION NO. 4

PETITIONER CHALLENGES QUALIFICATIONS OF

MATTHEWS AND WOOTTON

No entries whatever were made in the Record to

acknowledge the appointment and qualification of Acting Chief

Justice Stephen Matthews and Acting Associate Justice

Richard H. Wootton.

The first and ONLY appearance of the names of Matthews

and Wootton in the Record is constituted by the appending of

their names to the February 12 Majority Opinion and judg-

ment.

Petitioner cannot accept as valid any opinion or decision

made by persons who were not properly qualified or not proper-

ly entered as such in the written Record of the case.

This error is certainly a direct violation of the Arkansas

Freedom of Information Act, to be found in the appendix to this

petition.

This failure to properly enter their identity and

qualifications in the Record violates Sec. 12, Article VI of the

Constitution of Arkansas which reads:

‘All grants and commissions shall be issued in the name

and by the authority of the State of Arkansas, sealed by the

Great Seal of the State, signed by the Governor and

attested by the Secretary of State.”

Also being apropos is Sec. 49 of Article VII of the Constitu-

tion of Arkansas which reads:

‘*All writs and other judicial process shall run in the name

of the State of Arkansas, bear test, and be signed by the

respective clerks of the courts from which they issue . . . “

Inasmuch as Matthews and Wootton are reputed to have

Supreme Court authority ONLY in the matter of Joseph H.

Weston v. Arkansas CR 77-238 in Arkansas, (A56 in the U.S.

Supreme Court), the failure to record their appointment singles

Weston out for exceptional treatment and possible injury that

are not equally administered to any or all other litigants before

the Supreme Court of Arkansas, this constitutes a violation of

Weston’s equal rights of citizenship under the XIV Amendment

to the Constitution of the United States.

This lack of Record entries if intentional has the secret

character of ancient and horrible Star Chamber procedures. If

unintentional, it signifies a callous disregard for proprieties, in-

cidental to service on the bench of the highest court of law in the

state of Arkansas.

ORDER NO. 5

Is it an error that Acting Chief Justice Matthews, in con-

currence with Acting Justice Wootton, AFFIRMED a lower

court order that he had, in the same opinion, previously

declared did not exist?

In his opinion, Acting Chief Justice Matthews states:

‘Our refusal to afford appellant relief at this stage of the

proceedings is based on all or any of the three reasons set

out above, i.e., no appealable order is before us, the record

does not support appellant’s position, and there has been

no compliance with Rule 9.”

Thus Matthews has ruled that the unlawful actions of

Judge Ponder on November 19, 1977 which Weston was, and is

appealing, cannot be appealed because there is no written order

signed by the only person who could sign that order — Judge

Ponder.

In his decision, at the end of the opinion Matthews has

used a classic one-word judgment: Affirmed.

WHAT has he affirmed? AN ORDER THAT HE HAS

DECLARED DOES NOT EXIST:

The declaration by Matthews that an appealable order

does not lie before the court is essentially an argument on

jurisdiction, and at the stage of the proceedings at which

Matthews wrote his opinion, the problem was no longer

arguable.

This cause was first filed with the Supreme Court of Arkan-

sas on December 27, 1977 by lodging che Record from the lower

court and by filing a petition for a writ of mandamus to compel

the lower court to produce a proper order covering the activities

of Judge Ponder on November 19, 1977 (Pages 43 and 44 of

Record of Docket Entries).

On January 16, 1978, Page 60 Record of Docket Entries,

the Supreme Court of Arkansas perfected jurisdiction in the

case by acting upon the petitions for mandamus. This action

was followed by accepting and acting upon a long line of

petitions and pleadings including a printed brief and reply brief,

as well as Oral Argument, throughout a period of 15 months of

viable action prior to the day the Acting Chief Justice produced

his opinion and decision.

The only time when the Supreme Court of Arkansas could

have lawfully refused jurisdiction was when Weston’s first peti-

tion, or at most, first three or four pleadings came before it. At

that time that court could have exercised a discretionary power

of refusing to hear the petitions.

After 15 months of activity in the court, the Matthews-

Wootton decision, which was compounded by denial of a se-

cond hearing BASED UPON A DECLARATION OF LACK

OF JURISDICTION, has stripped Weston of the fruits of 15

months of work to defend himself in the state supreme court,

plus three months in the lower court.

SUBSIDIARY QUESTION:

Is it a reversible error that the Acting Chief Justice based

his decision upon the fact that no order from Judge Ponder ex-

isted concerning the November 19, 1977 court decision, when

the Supreme Court, upon petition of appellant (Pages 50

through 60) had refused to issue a writ of mandamus to compel

the lower court to submit such an order?

QUESTION NO. 6

Did the Supreme Court of Arkansas possess the requisite

power to compel the lower court to provide a written order to

accurately reflect the activities of Judge Ponder in his court

sessions of November 19, 1977?

Although there is almost a complete lack of statutory

regulation of the activities of the Supreme Court of Arkansas, it

appears to the petitioner that a power — and a responsibility —

for that court to supervise and discipline ALL the lower courts

of the state is conferred and mandated in Sec. 4, Article II of the

Constitution of the State of Arkansas, which follows:

“The Supreme Court, excepting cases otherwise provided

by this Constitution, shall have appellate jurisdiction only,

which shall be coextensive with the State, under such

restrictions as may from time to time be prescribed by law.

It shall have a general superintending control over all in-

ferior courts of law and equity; and, in aid of its appellate

and supervisory jurisdiction, it shall have power to issue

writs of error and supercedas, certiori, habeas corpus,

prohibition, mandamus and quo warranto, and other

remedial writs, and to hear and determine the same. Its

judges shall be conservators of the peace throughout the

State, and shall severally have power to issue any of the

aforesaid writs.”

The Supreme Court of Arkansas has accepted very little

resonsibility for control over, supervision, or discipline of the

lower courts in the entire lifetime of the State since its original

organization as a member State of the United States of America.

It has taken no affirmative steps to promote the honesty

and integrity of the lower courts, and itself has shirked public

responsibility for the actions and official opinions of its own

Justices by hiding behind a secretive en banc device that has

persisted without change or constitutional or statutory correla-

tion, in direct and unmitigated descent from Star Chamber

proceedings of the courts of Medieval England.

On pages 15 and 16 of Supplementary Record C, which is

before this Court, Justice Conley Byrd of the Arkansas Supreme

Court, on March 9, 1979 submitted a Motion for Summary

Judgment in Case No. 79-1423, then pending against him in

Pulaski Circuit Court in Little Rock.

In paragraph 3 in that Motion, Judge Conley Byrd writes

(over his own signature as a pro se pleading) as follows:

“3. That from the beginning of Statehood in 1836, the

Public has understood that each of the Sitting Justices of

the Supreme Court joined in the opinions unless the con-

trary was shown on the opinions.

“4. That the only record kept of the votes of the individual

Justices of the Supreme Court are those shown on the

opinions handed down by the Court as above described.”

Justice Byrd’s present term on the Arkansas Supreme

Court expires at the end of 1980, and he has indicated by a cam-

paigning attitude that he probably will be a candidate for the

Democratic party’s re-nomination (tantamount to election) in

the 1980 elections. In vigorously supporting the Star Chamber-

like method of NOT recording how Justices of the Supreme

Court vote, he has a strong personal interest to suppress public

knowledge of how he voted on several politically-sensitive issues.

His motion here noted, however, is prima facie admission

that the Supreme Court of Arkansas is deliberately and willfully

operating in defiance of almost all of the sections of the Arkan-

sas Freedom of Information Act found fully reproduced in the

appendix to this petition.

The ancient unwillingness of the State Supreme Court to

superintend and correct the errantry of the state’s circuit courts

(in order to keep the solidly Democratic dictatorship intact),

combined with a deliberate, time-honored Common Law and

Star Chamber method of hiding its own official actions from

public scrutiny, HAS MAINTAINED INTACT IN

ARKANSAS A MEDIEVAL FORM OF GOVERNMENT

THAT IS UTTERLY FOREIGN TO, AND

ANTAGONISTIC TO THE REPUBLICAN FORM OF

GOVERNMENT WHICH THE UNITED STATES MUST

GUARANTEE TO EVERY STATE OF THE UNION IN

ACCORD WITH Sec. 4, Article IV of the Constitution of the

United States:

“The United States shall guarantee to every State in this

Union a Republican Form of Government and shall

protect them against invasion .. .”

Due to lack of supervision and discipline, delibately

neglected by the state Supreme Court, the lower courts have for

143 years been free to erect tyrannous petty kingdoms of their

own — answerable to no superior authority whatever, and

many of them have done so.

This is especially true when men of dictatorial habits and

inclinations like Judge Andrew G. Ponder come into power at

the circuit court level, and when they team with, and are

abetted by persons of similar character like Leroy Blankenship,

who at the time of the infamous November 19, 1977 decision of

Judge Ponder was the prosecuting attorney for Ponder’s entire

3rd Judicial District. Blankenship is now circuit judge of a

judicial district adjacent to the presently reorganized district of

which Ponder is circuit judge.

When the Sharp Citizen began its political reform crusade

in Arkansas in January, 1972, the entire state was constricted

into a dictatorial government, enforced by the circuit court

judges, that made life dangerous for anyone who voted against

the triumvirate of Wilbur Mills, J. William Fulbright, and John

L. McClellan.

The circuit courts enforced this power by driving all dis-

sidents or possible political opponents from the state. Thus, the

poor, the intellectuals and the blacks were forcefully exported to

“that foreign nation, the United States” and Arkansas’ popula-

tion remained static for a hundred years.

When the Sharp Citizen began publication, at a risk of

Editor Weston’s life incurred anew with each succeeding weekly

publication, the leaders of the state were shocked, but many of

the oppressed rallied to t ¢ Editor’s support.

Changes, at first, came slowly.

However, the tempo of governmental reorganization rapid-

ly stepped up. The Legislative and the Executive departments,

as well as the people themselves, with constitutional

amendments, moved to abolish the medieval fee system of local

and county government, and the often ignorant local justices of

the peace.

Indeed, Arkansas has made remarkable progress in bring-

ing its government out of Medievalism since Editor Weston’s

Sharp Citizen began its historic work in 1972.

BUT THE CIRCUIT COURTS, OR AT LEAST MANY

OF THEM, REMAIN DEEP IN THE HEART OF

MEDIEVAL ENGLAND — and have not kept pace with the

encouraging reforms effected by both the Legislative and Ex-

ecutive departments of the state government, and directly by the

vote of the people.

Due to the Equal Power Doctrine of our state and national

governments, the only way that effective court reform can be ob-

tained is through the courts themselves.

And to this end, and also for the purpose of keeping Editor

Weston out of Cummins State Prison for the rest of his life on a

totally false conviction from Independence County Circuit

Court, petitioner earnestly invokes corrective action from the

highest court in the nation, having exhausted all possibility of

relief from courts of Arkansas during his lifetime.

Petitioner is now aged 68, seriously ailing from incurable

and greatly advanced diabetes, and from jailings, beatings, and

an over-strenuous effort to protect his family that includes five

children under the age of 10, his honor, and even his life itself.

QUESTION NO. 7

Was it in error that six Justices refused to disqualify

themselves from hearing appellant’s Petition for a Second Hear-

ing and Re-Organization of the Court after Appellant had twice

challenged their jurisdiction?

In Appellant’s Petition for Second Hearing and Re-

Organization of the Court, filed with the Arkansas Supreme

Court on March 8, 1979 (page 117, 118, and 119 Record of

Docket Entries) Appellant asked six Justices to disqualify

themselves by reason of their being defendants in a substantial

lawsuit against them by appellant in Pulaski County Circuit

Court.

Names of the Justices were: Acting Chief Justice Stephen

A. Matthews, Acting Justice Richard H. Wootton and Justices

George Rose Smith, Frank Holt, Darrell Hickman, and Conley

Byrd.

On March 23, Judge Lowber Hendricks dismissed the

Case No. 79-1423, (opinion found on pages 59, 60, 61, 62 of

Supplementary Record C).

On April 11, 1969, Appellant filed an APPEAL with

Pulaski Circuit Court (pages 63, 64, 65 of Supplementary

Record C), serving copies on Kay L. Matthews, as attorney for

Conley Byrd, and on Russell Meeks III, assistant attorney

general as respondent for Matthews, George Rose Smith,

Hickman, Holt, and Wootton.

On March 26, 1979, Appellant AGAIN asked the defen-

dant Justices to withdraw in an ADDITION TO PETITION

FOR SECOND HEARING AND REORGANIZATION OF

THE COURT (found on page 121 of Record of Docket En-

tries).

On April 30, 1979, the Arkansas Supreme Court handed

down an order reading “Rehearing Denied”. (Page 124 of

Record of Docket E-«ries.) Appellant’s petition for reorganiza-

tion of the court was totally ignored, and NONE of the defen-

dant Justices withdrew.

The matter of the Justices’ possible recusal in this situation

does not allow for discretion.

It is a matter of directed action, as mandated by Sec. 20,

Article VII, Constitution of the State of Arkansas, which reads

as follows:

‘“‘No judge or justice shall preside in the trial of any cause

in the event of which he may be interested, or where either

of the parties shall be connected with him by consanguini-

ty or affinity, within such a degree as may be prescribed by

law; or in which he may have been of council or have

presided in any inferior court.”

QUESTION NO. 8

Did the Arkansas Supreme Court err in affirming an order

that had accepted four indictments of perjury against Weston

which had been issued by a Grand Jury wholly and illegally

under the control of Prosecuting Attorney Leroy Blankenship?

From Pages 3 and 4 of Weston’s Abstract and Brief for

appellant duly filed with the Clerk of the Supreme Court of

Arkansas, the following is quoted:

‘*) was called before the Independence County Grand Jury

on October 18, 1977.

‘Blankenship, in masterly management of the Grand Jury,

questioned me closely about my sources of information

about the Seaton sex article. Then he called Seaton to

testify, who, of course, stated that he had never had sex

relations with any of the three women I had named, nor

with any other woman.

“Blankehship’s handling of the Grand Jury was superb.

He never left them to wander in a moment. He presented

the evidence, interrogated me and other witnesses, guided

the Grand Jury discussion into constructive channels,

assisted them in their deliberations, and personally and

very graciously assisted them in voting and personally saw

that their vote was properly recorded. So devoted was

Blankenship to serving the Grand Jury that my “spies”

were able to report that he never once left them throughout

their deliberations — not even to go to the bathroom —

over the entire month of their frequent meetings.”

The above-quoted Abstract and Brief for Appellant is

found in the Supplemental Record “B” on file with this court.

In Paragraph 6 of its Response To Motion to Quash Grand

Jury, filed November 4, 1977, and found on Page 17 of the

Record of Docket Entries now before this couzt, the Grand Jury

confirms that Prosecutor Blankenship was overly solicitious in

his care of the Grand Jury BUT DOES NOT DENY THAT

BLANKENSHIP REMAINED WITH THE GRAND JURY

DURING ITS DELIBERATIONS, nor at any time denied that

Prosecutor Blankenship was present in the Grand Jury room

during that jury’s deliberations, although he had ample time to

do so, either in his Reply Brief, in Oral Argument, or in a

separate Motion or Petition to the Supreme Court.

Justice Purtle in his Dissenting Opinion, takes note of this

situation, and rules as follows upon it:

“The minutes of the Grand Jury have apparently never

been furnished to appellant. If the prosecutor was in fact

directing the whole proceedings, and was present during

the deliberation of the Grand Jury, it is afiyrerstie error.

Some parts of the record were found alter this court

entered a mandate to the lower court. The record is still

technically incomplete.”

Justice Purtle’s above shown quotation appears on Page

115 of the Record of Docket Entries, and in the appendix to this

petition.

QUESTION NO. 9

Did the Supreme Court of Arkansas err by failing to pre-

sent for the Record a clear-cut unequivocal line of judicial

responsibility of its own members in considering this case?

(a) Regular Chief Justice Carlton Harris did NOT enter an

order Recusing himself.

(b) Court orders dated January 16, 1978 and on page 60 of

the Record, and dated March 27, 1978 on page 98 of the Record

do NOT list the name of Chief Harris as non-participating, and

under that court’s policies in this matter, Chief Harris COULD

have participated. And, on the other hand, maybe he did NOT

participate. Would the honorable members of this court care to

choose “theads” or “tails” while we flip the coin?

Record, Chief Harris is recorded as NOT participating in this

case.

(d) Acting Chief Justice Matthews could not have been

lawfully and constitutionally appointed to serve in this case un-

less Chief Justice Carlton Harris had recused himself and com-

municated a request to the Governor for the commissioning of a

replacement.

Yet, the Record does NOT reflect that the regular Chief

Justice performed either of these acts:

(e) The participation of the regularly-elected Chief Justice

in this case in an on-again, off-again basis gives rise to a

legitimate suspicion that he could have wandered in and out of

jurisdiction in a capricious manner as expediency of the mo-

ment might have dictated.

(f) Simply by listing a non-participating clause in four

orders of the many orders and actions taken by the Arkansas

Supreme Court during the 15 months of pendency of this case

there, does not serve to remove the possibility or suspicion that

Chief Justice Harris might have actually managed ALL stages

of the trail.

(g) The lack of entry of orders showing Acting Chief Justice

Matthews as having been properly commissioned and qualified,

and absence of orders clearly denoting that Chief Justice Carl-

ton Harris had recused himself to the Governor and asked for

replacement, also bring up the very interesting possibility that

the Arkansas Supreme Court in this case possessed a de facto

membership of TWO active Chief Justices and at least eight

total members of the court, whereas, the Constitution of Arkan-

sas specifies that the court shall have ONE Chief Justice and

SEVEN total members.

(h) This befuddling arrangement clearly violates Sec. 12-

2802, Sec. 12-2803 (b) of the Arkansas Freedom of Information

Act, a copy of which appears in the appendix of this petition.

2.(a) Associate Justice Fogleman did NOT enter into the

Record an Order of Recusal, nor did he make an entry into the

Record that he had withdrawn and asked the Governor for a

replacement.

(b) This places a pall over the tenure of Associate Justice

Richard H. Wootton on the bench, in addition to the deficien-

cies of alleged accession to office that are noted elsewhere in this

petition.

participating” in all orders of the court in this case that

appellant has seen.

HOWEVER, SIMPLE NON-PARTICIPATION ON AN

ORDER-TO-ORDER BASIS DOES NOT CONSTITUTE A

RECUSAL. .

Such action does NOT specify a date on which respon-

sibility ceased, and leaves open the ever-present possibility of re-

entry — without proper record — and unknown to appellant, at

any time Justice Fogleman might have desired to resume activi-

ty as a matter of his own convenience and expedience.

(d) Justice Fogleman’s failure to enter proper written

evidence into the Record that he might have communicated his

withdrawal to the Governor and might have asked for the ap-

pointment of a replacement also casts a pall over the tenure of

Acting Associate Justice Richard Wootton.

(e) Justice Fogleman’s action, or inaction, as the case may

be, also violates Sec. 12-2802 and Sec. 12-2803 (b) of the Arkan-

sas Freedom of Information Act.

3. At no time throughout its consideration of Case No. CR

77-238, has the Supreme Court of Arkansas made an honest, ac-

curate, legal and constitutional showing of the Justices actually

participating in the action, nor a division of their duties, nor a

showing of their responsibilities.

(a) An order denying a writ of mandamus, on page 60 of

the Record, dated January 16, 1978, fails to show the name of

ANY Justice who authorized or issued the order, in utter dis-

regard of responsibility to the people of Arkansas and in

flagrant violation of Sec. 12-2802 and 12-2803 (b) of the Arkan-

sas Public Information Act.

(b) The same condition applies to orders found in the

Record on Pages 97, 18, 105, 120, 123, and 125. All of them

violate Sec. 12-2802, Sec. 12-2803 (b) and other parts of The

Arkansas Freedom of Information Act.

4.(a) From the beginning of consideration of Case CR 77-

238 in the Supreme Court of Arkansas on December 27, 1977

until the denial of a Second Hearing on April 30, 1979, a total of

TEN Justices participated, in one way or another, in the’

deliberations.

Their names follow: Chief Justice Carlton Harris, Acting

Chief Justice Stephen Matthews, Justices John Fogleman,

George Rose Smith, Frank Holt, Conley Byrd, Darrell

Hickman, George Howard Jr., John I. Purtle, and Acting

Justice Richard H. Wootton.

(b) The Record reflects that EIGHT Justices and TWO

Chief Justices were, or could have been, in participation all at

the same time, and especially at the time of the final decision on

February 12, 1979 and the denial of Second Hearing on April

30, 1979.

Although the names of Harris and Fogleman appear on

these two documents, there is no assurance whatever that they

did NOT participate in conferences, discussions, or possibly

even votes leading to the opinion and decision written by

Matthews, because the Record reflects that Harris and

Fogleman had never entered a recusal to lawfully fix the extent

or limitation of their duties and authority.

ramifications of the actions of the Justices reflects a clear cut

definition of the panel that considered this case.

At the Oral Argument, May 22, 1978, FOUR JUSTICES,

AND ONLY FOUR JUSTICES SAT ON THE BENCH:

CONLEY BYRD, FRANK HOLT, DARRELL HICKMAN

AND GEORGE HOWARD JR.

Whereas, although the final decision was identified with

the participation of only THREE Justices; Matthews and

Wootton for affirming, and Purtle in dissent, the court entered

an en banc report of the case in the February 12, 1979 edition of

the Arkansas Supreme Court Advance Reports. This Report is

alleged to have carried the presumption by that court, that

OO EE

seven fully qualified members of the Supreme Court participated

in the vote (which was held in a secret meeting of the court

from which appellant, the public and the press were excluded).

The Record does not reflect that SEVEN Justices actually

participated in the vote.

Note, at the Oral Argument only FOUR Justices sat on the

bench in open court, while petitioner is expected to

“understand” that SEVEN Justices voted in the secret meeting

prior to February 12, 1979 announcement of the decision.

Petitioner cannot accept this presumption, and charges

that the manner in which the decision was arrived at and hand-

ed down is a clear violation of the Arkansas Freedom of Infor-

mation Act.

That court has failed — even refused — to enter proper

records and make them available to appellant under provisions

of 12-2803 (a) and (b) of that law.

That court met in a secret meeting to consider appellant’s

Case No. CR 77-238 in violation of Sec. 12-2803 and 12-2805,

of the Arkansas Freedom of Information Act. It will be noted in

the last paragraph of Sec. 12-2803, that the ONLY meetings of

courts exempt from this law are GRAND JURIES. The

Supreme Court of the State of Arkansas is NOT exempted from

jurisdiction of the Act.

The proceedings of that secret meeting included a vote by

the Justices on whether to affirm or reverse the oral order of

Judge Ponder of November 19, 1977.

The vote was taken in a “‘gentlemen’s agreement” type of

consensus, AND NO ORDER WHATEVER WAS MADE

OR ENTERED INTO THE RECORD, OR MADE

AVAILABLE TO APPELLANT, NOR TO THE PEOPLE

OF ARKANSAS OF THE MANNER JIN WHICH THE

JUSTICES INDIVIDUALLY VOTED, EXCEPTING

MATTHEWS AND WOOTTON FOR AFFIRMATION

AND PURTLE FOR REVERSAL.

Thus, it was not even recorded that a majority of members

of the court voted in favor of either affirmation or reversal.

Under the law, appellant cannot accept the facts that only

TWO Justices voted for Affirmation and only ONE Justice

voted for Reversal.

There also is a doubt as to whether a FOUR Justice panel,

or a SEVEN Justice panel sat on the case in the secret meeting.

It would have required THREE Justices to have formed a

majority if it was a FOUR Justice job, and FOUR Justices to

form a majority if it had been a SEVEN Justice court.

Inasmuch as the entire proceedings of the secret meeting,

and its subsequent proceedings were illegal under the Arkansas

Freedom of Information Act, the Decision in this case, handed

down by the Arkansas Supreme Court on February 12, 1979

and affirmed by denying a second hearing on April 30, 1979, is

illegal as stated in the last paragraph of Sec. 12-2805 of the

Arkansas Freedom of Information Act.

It also is clearly the product of Ancient Star Chamber

proceedings which, on many occasions, has been condemned by

ae | —

the Supreme Court of the United States.

Attention is invited to the Case of Joseph H. Weston, Plain-

tiff, v. Stephen A. Matthews, as Acting Chief Justice of the

Supreme Court of Arkansas; George Rose Smith, Darrell

Hickman, Conley Byrd, and Frank Holt as Justices of the

Supreme Court of Arkansas; Richard H. Wootton as Acting

Justice of the Supreme Court of Arkansas.

In the Fifty Division of the Circuit Court of Pulaski Coun-

ty, Arkansas (Little Rock), Judge Lowber Hendricks presiding:

(a) In his Order of March 23, 1979, Judge Hendricks, by

reason of accepting jurisdiction and ruling thereon, construc-

tively ruled that his court possessed jurisdiction over the persons

and offices of the several justices of the Supreme Court of

Arkansas (page 62 of Supplemental Record C, on file with

this court).

Other parts of his Order, which are probably erroneous, do

not obscure or mitigate the essential fact that Judge Hendricks

accepted jurisdiction and acted upon it, thereby setting a prece-

dent that Justices of the Arkansas Supreme Court are liable for

and answerable to court actions filed under authority of the

Arkansas Freedom of Information Act, Sec. 12-801, et sequitur.

Jurisdiction was accepted by Judge Hendricks over the

demurrer of W. Russell Meeks III, deputy attorney general as

respondent for defendants George Rose Smith, Frank Holt, and

Darrell Hickman, (page 20 of Supplemental Record C) and ina

separate demurrer for Stephen Matthews and Richard H.

Wootton (page 55 of Supplemental Record C).

Justice Conley Byrd, signing pro se, in his Demurrer of

March 8, 1979, on page 13 of Supplemental Record C, admits

the two following acts, BOTH OF WHICH violate appropriate

sections of the Arkansas Freedom of Information Act.

(1) ‘‘As a matter of Common and Public knowledge, the

opinions of the Supreme Court sitting In Banc are handed down

from the Supreme Court’s Bench in public view of all the sitting

judges and that an opinion so handed down by the Supreme

Court represents the views of all of the sitting Supreme Court

Justices unless the opinion otherwise indicates.

(2) That the opinions of the full court represent the only

record of the votes of the individual Supreme Court Justices as

anyone can determine for himself by looking at any of the 262

published volumes of the Arkansas Supreme Court.”

Please note that Justice Byrd, in his Demurrer (2) admits

that NO written record is made of the manner in which the in-

dividual Justices vote as a permanent policy of the court.

This violates Sec. 12-2802 and Sec. 12-2803 (a) and (b) of

the Freedom of Information Act. It also denies appellant, or the

prople, or the press, any knowledge of how the individual

Justices voted, because the opinions handed down each Mon-

day have been arrived at by vote or consensus taken in the

regular secret meeting of the court the previous Friday morning.

This violates the third paragraph of Sec. 12-2803 and Sec.

12-2804, Sec. 12-2805 and Sec. 12-2806 of the Freedom of Infor-

mation Act. The law makes it clear that ALL meetings of gover-

ning bodies, except Grand Juries, must be open to the public,

that ALL votes on public questions must be taken in full view

and hearing of the public, and that accurate records must be

kept, to which the public shall have regular access and right to

inspection and copying during reasonable business hours.

QUESTION NO. 10

Did the Supreme Court of Arkansas err by failing to enter

into the Record any report of the proceedings of the Oral Argu-

ment held in the beautiful new circular court room on May 22,

1979?

The Record reflects only a brief allusion to a minor matter

concerning the Oral Argument, found in Chief Justice

Matthews’ opinion.

On four justices sat for the oral argument; Byrd, Holt,

Hickman, and Howard. Assistant Attorney General James E..

Smedley spoke for respondents. Joseph H. Weston spoke for

himself as appellant.

Mr. Smedley’s reply was interrupted by Justice George ©

Howard, Jr., who made a most significant statement that took

all of us by surprise, including Mr. Smedley. His statement

follows:

“Mr. Weston, I must inform you that the Attorney General

(Bill Clinton) has CONCEDED THAT JUDGE PONDER

MIGHT WELL HAVE ERRED, and this court finds that Mr.

Weston has shown that he has been injured by being jailed, and

assessed an excessive bond requiring a cash premium of $400.00

that worked a hardship. This court has ruled on a similar case,

Bolden v. State, in which it was held that a recused judge must

avoid even the appearance of resuming jurisdiction in a matter

from which he has been relieved of jurisdiction.”

This hearing was recorded on tape for access by SOME,

BUT APPARENTLY NOT ALL of the Justices to use in the

court, but it was not transcribed and in no way was it entered

into the Record, nor made available to appellant to use in this

appeal to the U.S. Supreme Court, or for any other purpose, un-

til petitioner’s own investigations had disclosed the existence of

the tape.

Petitioner Weston feels that these proceedings ought to

have been properly entered into the Record, and inasmuch as

they were available to some but probably not all members of the

court, they ought to have been made available to petitioner on

equal terms, as well, and that failure to do so constitutes a viola-

tion of Sec. 3, Article II, and Sec. 18, Article II of the Constitu-

tion of Arkansas and Amendment XIV to the Constitution of

the United States.

It also violates Sec. 12-2802, 12-2803, Sec. 12-2804, Sec. 12-

2805, Sec. 12-2806 and Sec. 12-2807 of the Arkansas Freedom of

Information Act. A copy of which appears verbatim in the

appendix herewith. ? e

This sequestration of the proceedings and subsequent ac-

tivities of the Arkansas Supreme Court radically changed the

course taken by this cause, to great injury to petitioner.

Justice Howard is the first black man to sit on the bench of

the Arkansas Supreme Court in more than a hundred years, ser-

ving by appointment of now former Governor Pryor.

Further movement of the case was suspended immediately

after the Oral Argument, and was not resumed until the

Matthews decision wa: ‘ianded down on February 12, 1979 —a

delay of nine months, which was an unusually long time, that

violated provisions of the Arkansas Constitution, of the U.S.

Constitution, of federal statutes and U.S. Supreme Court Doc-

trine, all of which demand a speedy trial in a criminal case. The

Case was criginally filed on December 27, 1977—a total of 15

months!

This long delay denied petitioner the value of Justice

Howard’s opinion, by reason of the expiration of his term of of-

fice on December 31, 1978.

It also denied petitioner the value of the opinion of At-

torney General Bill Clinton whose term of office expired at the

end of 1978, when Clinton moved up to the governorship with

an overwhelming popular vote.

This long delay also served to assure there would be no

adverse public attention drawn to Judge Ponder, Chancellor

Dudley and Prosecutor Blankenship prior to voting in the

November 7, 1978 general election, in which all three of them

were Democratic candidates for judgeships and were NOT op-

posed to each other. Blankenship was vigorously opposed by a

prominent Batesville lawyer, Keith Rutledge, formerly a

Republican, now an Independent. The vote was contested in a

recount, and Blankenship was declared winner by less than 200

votes in the entire four-county judicial district by election

machinery controlled by Democratic court-house organizations.

Weston and his newspaper had begun supporting the indepen-

dent Rutledge in September, 1977, before the Grand Jury met,

and it is almost certain that Blankenship would have been

beaten, and probably Ponder also, if Ponder, Blankenship,

Dudley and others had not conspired to put Editor Weston in

jai! and knock out his crusading Sharp Citizen weekly

newspaper.

Incidentally, the Democratic party dictatorship in Arkan-

sas enforces a set of election laws that demands that all state of-

ficials who are Democrats, must support all Democratic can-

didates.

This applies also to justices of the Supreme Court — who

are themselves elective, and who must execute an oath of

Democratic party loyalty before they can be legally certified by

the state secretary of the Democratic party to be placed on the

ballot by the Secretary of State.

It’s strictly a closed shop factory, and it is not to be ex-

pected that the Supreme Court of Arkansas would deliver an

embarrassing opinion concerning a circuit judge in an election

year, the Constitution and their oath of office notwithstanding.

The operation of the circuit courts and the Arkansas

Supreme Court could have been, and probably were, and it

could probably be proved, directly influenced by the un-

constitutional Election Code of the state of Arkansas.

Editor Weston himself, having twice before been a can-

didate for the Republican nomination for Governor, had an-

nounced prior to the Grand Jury meeting that he was an

INDEPENDENT candidate for Governor, but his jailing and

bad treatment by the Grand Jury stopped any possibility of ob-

taining enough signatures to get his name on the ballot.

In a reign of terror by Ponder, Dudley and Blankenship,

the people were reluctant to sign Weston’s petition — for fear

they would also be jailed along with Weston. It had been done

before in Arkansas!

There is enough evidence at hand to prove that the

opinions of Justice Howard and Attorney General Bill Clinton

were recorded on tape, and that the tape exists today.

Chief Justice Carlton Harris admitted that the tape had

been recorded, and went with Weston to the desk of Miss Robin

Horne, Deputy Clerk of the Supreme Court, who found that the

tape, miracously, had NOT been erased in accordance with an

oral policy of the court that tapes must be erased after 30 days.

Chief Justice Harris gave Weston permission to have the tape

transcribed, at WESTON’S OWN EXPENSE (an estimated

$60.00).

Miss Horne still retains custody of the tape, pending the

ability of Weston to put up the cost of the transcription, which

he cannot now do, (September 12, 1979.)

However, after this petition has been safely filed with Mr.

Rodak, clerk of the U.S. Supreme Court on September 27, 1979,

petitioner Weston plans to institute a petition to the Arkansas

Supreme Court to secure access to pre-transcribed contents of

said tape, under provision of Sec. 12-2803, Sec. 12-2804 and

Sec. 12-2805 of the Arkansas Freedom of Information Act.

When such transcript has been received and certified, it will be

forwarded to this Court as a subsequent supplement to the

Record, under provisions of

Rule 1A..... “Thereafter (the filing of the Record) the

clerk of this court or any party to this case may request

that additional parts of the record be certified and

transmitted to this court”

Petitioner questions the propriety, legality, constitutionali-

ty, and even the common decency of the court order issued by

Judge Robert Dudley in his last subsidiary hearing in the

matter of the Grand Jury, held on November 18, 1977.

The order is found on page 31 of the Record of Docket En-

tries.

Weston, who suffers in the last stages of advanced diabetes,

had been in jail for 14 days. His medications, including insulin,

which were absolutely necessary to sustain his life, were

brought to him daily by his wife, through the thoughtful

cooperation of Sheriff Noel Baldridge and his staff. But it was

impossible to control three other factors also necessary; quanti-

ty measurement of food intake, choice of necessary menu, and

precise timing of food intake to correlate with medications.

The quantity of urine sugar on testape began to rise rapidly

and had reached the point of maximum measurement, and of

immediate danger to Weston when, in order to protect his life,

Weston realized he must obtain his freedom from jail and return

to the strict diet and medication necessary for an advanced

diabetic.

So he agreed to purge himself and was brought into court

on November 18, 1977.

The purge was duly ordered by Dudley, but he immediate-

ly brought up another subject in which he lacked jurisdiction.

(In Dudley’s November 4, 1977 hearing, he had permitted

Prosecutor Blankenship to admit as evidence the copy of a

pleading in an earlier case in Lawrence County court that

Weston had submitted earlier in this trial as evidence to support

Weston’s plea that Judge Ponder should be disqualified from

presiding in court sessions collateral to proceedings of the

Grand Jury. (A copy of the plea and Lawrence county pleading

are found on pages 1, 2, and 3 of the Record of Docket Entries. )

Weston objected in the November 4 hearing to the in-

troduction of the Lawrence county pleading, but Judge Dudley

overruled his objection and permitted prosecutor Blankenship

to question Weston.

Then, in the November 18 hearing, Dudley brought up the

matter of the Lawrence county pleading, and found Weston gui-

Ity of contempt of his (Dudley’s) court by reason of filing a

malicious and contemptuous pleading in his (Dudley’s) court

that maligned Judge Ponder, who was at no time during this

process in jurisdiction of Dudley’s court.

Now here’s the catch. Judge Dudley sentenced Weston to a

second 14 days in jail for having maligned Judge Ponder BUT

AGREED TO ORDER THE SENTENCE TO RUN

CONCURRENTLY WITH THE 14 DAYS WESTON HAD

ALREADY SPENT IN JAIL IF WESTON WOULD

RECANT THE STATEMENTS HE HAD MADE AGAINST

PONDER IN THE LAWRENCE COUNTY PLEADING

AGAINST PONDER, AND ANY SIMILAR STATEMENTS

WESTON HAD MADE OR PUBLISHED AGAINST

PONDER ANYWHERE ELSE AT ANY TIME.

Such a demand by Judge Dudley, of course, was a flagrant

violation of the freedom of press Sec. 6, Article II of the

Constitution of Arkansas and of the First Amendment to the

U.S. Constitution, and violated Weston’s rights of free speech,

also, because Judge Dudley had quoted, word for word, the

matter that Weston must state in his recantation.

Weston knew that, because his diabetes had gone out of

control with dangerous testape readings, that another con-

secutive 14 days in jail would probably kill him, and HAD NO

CHOICE, IN ORDER TO PROTECT HIS LIFE, but to per-

form the recantation under duress so he could return im-

mediately to a proper routine of timed medications and food in-

take, and proper diet.

Judge Dudley was aware of Weston’s illness, and of its

seriousness.

Weston has made repeated requests for transcriptions of

the two hearings Dudley held on November 4, and of the two

hearings he held on November 18, but has been consistently

denied access to such transcriptions.

In view of the bizarre surroundings in which this case is set,

petitioner Weston contends that the Order of Special Judge

Robert Dudley, filed on November 18, 1977 and found on page

31 of the Record of Docket Entries, is an overt act by Judge

Dudley to conspire with Ponder and Blankenship, at Weston’s

expense, to clean up the public image of Ponder. It is to be

noted that Dudley, Ponder and Blankenship were all candidates

for election to Judgeships in coritiguous and adjacent jurisdic-

tions and were not opposed to each other.

Weston admits that he had given Judge Ponder just cause

to hate him, by persistently publishing an article describing the

“\Justice for Sale” racket that Andrew Ponder, as circuit judge,

and his brother, Lawyer Harry Ponder, in regular practice in

Lawrence County before Judge Andrew Ponder, had operated

for many years, and are still operating today, in which the

lawyer Harry Ponder is in a position to guarantee in advance

what his client’s verdict will be because his brother Andrew is

the Judge.

Another frequently-run article in Weston’s Sharp Citizen

pointed out the same sort of scandalous situation that did exist

and does exist today, in Jackson County, where Andrew Ponder

is Circuit Judge and his brother-in-law Fred Pickens, a lawyer,

have grown wealthy by manipulating cases passing through the

Jackson County Circuit Court.

And in exercising his rights of freedom of the press and

political criticism with the Sharp Citizen in the public interest

of clean politics and honest courts, Weston has literally and ac-

tually risked his life over a period of seven years.

STATEMENT OF THE CASE

In the total absence of a criminal libel law in Arkansas by

reason of its having been in 1975 declared wholly un-

constitutional by Special Justice Leroy Autry of the Arkansas

Supreme Court, in heavy reliance upon rulings of the U.S.

Supreme Court in New York Times vy. Sullivan and Garrison v.

Louisiana, Judge Ponder and his associates in October, 1977, set

up an entrapment use of the Grand Jury to punish petitioner

Weston for having published articles that embarrassed them

in their candidacies for re-election.

The opinion of Special Justice Autry is reproduced in full

in the appendix to this petition under the style of Joseph H.

Weston vs State of Arkansas, CR 75-49, 528 S.W.2d 412.

Prosecuting Attorney Leroy Blankenship, Circuit Judge

Andrew G. Ponder, Special Circuit Judge Robert Dudley,

Grand Jury Foreman Veta M. Gordon, all of them being of-

ficials of Independence County, Arkansas, and Trooper Carroll

Seaton, a member of the Arkansas State Police, conspired

among themselves and with others, to use the processes of the

Grand Jury, the circuit court, and laws, customs and Rules of

Court procedure of the State of Arkansas that govern the ac-

tivities of the grand jury and courts, to suppress publication of

the Sharp Citizen weekly newspaper published by Joseph H.

Weston at Cave City, Arkansas 72521.

Thier official actions under color and authority of Arkansas

laws and customs began on October 17, 1977 and concluded cn

November 19, 1977, and resulted in the actual suppression of

the Sharp Citizen, in violation of Weston’s rights of free press

under the First Amendment to the U.S. Constitution, and in the

sentencing of Editor Weston to six months in jail (of which he

actually served 14 days) and a cost of $400.00 in cash for the

premium on a $4,000.00 bond.

Cooperating and conspiring with the above-listed five

public officials, and in violation of state and federal laws of con-

spiracy and organized crime, were a Batesville lawyer, John

Norman Harkey who as an officer of the court, filed a million

dollar libel lawsuit against Weston that was timed in conspiracy

with Blankenship to coincide with the Grand Jury and a trial

planned to result therefrom, with the object of influencing the

jury in the prospective criminal trial of Weston. Harkey also

submitted to Weston, under authority of Arkansas law in this

suit, long lists of interrogatories and admissions timed and aim-

ed at entrapping Weston into testimony that could be used

against him in his proposed and conspired criminal trial.

Furthermore, in pgs. 7, 8, 9, 83, 84, 85, 86, 87, 88, 89, 90, 91,

92 of the Record of Docket Entries, Harkey, a lawyer and officer

of the court, filed a heavy damage suit against one of Weston’s

newspaper vendors aimed at stopping the sale of the Sharp

Citizen, and such stoppage was effected by fear and terrorism.

(Pages 82, 93, 94, 95, 96, of Record of Docket Entries).

Sale of the newspaper was effectively stopped.

All of the material listed on Pages 7, 8, 9, 83, 84, 85, 86, 87,

88, 89, 90, 91 and 92 of the Docket Entry Record was submitted

by appellant to the Arkansas Supreme Court for placement into

the record as a matter of judicial knowledge.

On May 8, 1979, an unsigned order of the Arkansas

Supreme Court denied appellant’s petition to supplement the

record with the material listed in the foregoing paragraph.

(Page 97 of Record of Docket Entries).

Also conspiring and acting in conspiracy with

Blankenship, Ponder, and others, were local and state-wide of-

ficials of the appellant’s church, the Church of Jesus Christ of

Latter-day Saints (Mormon).

In conspiracy with, and under the influence of John Nor-

man Harkey, the president of Weston’s home branch of the

LDS Church, at Batesville, Ark., R. Ford Wilkinson, and the

state-wide president of the LDS Church, J..Lynn Mellor of

North Little Rock, Ark., timed an ecclesiastical trial for the ex-

communication and smearing of Weston to coincide with the

Grand Jury proceedings and criminal trial. Weston was actual-

ly in jail for contempt when the date for the ecclesiastical trial

was scheduled, but the trial was held later and Weston was in

fact excommunicated and smeared in a secret trial in which it

was charged that Weston’s Sharp Citizen newspaper, due to his

prominence throughout the state and his identity as a High

Priest of the church, had badly hampered the work of Mormon

missionaries in the state and had embarrassed them.

The association between John Norman Harkey, the

lawyer, and R. Ford Wilkinson, the church’s congregation

leader at Batesville had extended over a long period of time dur-

ing which Harkey had performed free legal services for needy

members of Wilkinson’s flock, and during which Blankenship’s

deputy prosecuting attorney, Philip Farris, sharing the same of-

fice with Blankenship, had performed: intricate title search and

other real estate procedures at no cost, or only nominal cost, for

Wilkinson in the matter of the purchase of a church building.

The ecclesiastical court trial cannot be defended as an act

of Freedom of Religion because it violated due process and con-

spiracy laws of Arkansas and possibly conspiracy and organized

crime statutes of the United States, and deprived Weston of a

valuable property without due process of law and in violent con-

flict with the Constitutions of Arkansas and of the United

States.

In a subsidiary hearing, held while meetings of the Grand

Jury were still in progress, Judge Robert Dudley found Weston

in contempt of court and sentenced him to six months in jail.

His Order appears on Page 27 of the Record of Docket Entries.

Weston was NOT arrested in this action, but was taken

directly before Judge Dudley from the Grand Jury. There was

NO arraignment, NO time for Weston to prepare a defense, NO

opportunity given Weston to present witnesses, nor to subpoena

hostile witnesses.

In the hearing, Judge Dudley found that Weston was guilty

of malice in publishing the prostitution ring article, after

Weston had claimed protection of the newsman’s “Shield”

Law, found in Section VI, on page 14 of the Record of Docket

Entries, but offered no opportunity to Weston to defend himseif.

Weston entered the secret court session as a witness and a free

man and was taken out to the county jajl a few minutes later as

a six-month convict, without due process of law. Weston actual-

ly served 14 days in jail. Judge Dudley’s Order of November 4,

1977 does not reflect his pronouncement from the bench, and a

transcript of the proceedings has been denied Weston, despite

many requests.

The transcript of another subsidiary hearing held by

Dudley on November 18, 1977, and proceedings held by Judge

Ponder on November 19, 1977 have been steadily and frequent-

ly refused to plaintiff Weston, and Acting Chief Justice

Matthews of the State Supremc Court affirmed the November

19, 1977 order of Judge Ponder — after having in the same opi-

nion denied its existence, and after the Supreme Court had

refused to issue a proper order to Judge Ponder to produce the

order and enter it in the Record.

The November 19, 1977 oral order of Judge Ponder was the

final order of the Judicial hearings associated with the Grand

Jury, which had been empanelled by Judge Ponder on October

17, 1977.

INTERESTED PARTIES

Bill Clinton, Governor of Arkansas; State Capitol, Little

Rock, Ark.

Carlton Harris, Chief Justice Supreme Court; Justice

Bldg., State Capitol, Little Rock, Ark.

Steve Clark, Attorney General; Justice Bldg., State

Capitol, Little Rock, Ark.

Stephen A. Matthews, Acting Chief Justice; Pine Bluff,

Ark.

John Fogleman, Conley Byrd, Frank Holt, Darrell

Hickman, and John I. Purtle, Supreme Court Justices; Justice

Bidg., State Capitol, Little Rock, Ark. and George Rose Smith,

Supreme Court Justice; Justice Bldg., State Capitol, Little

Rock, Ark.

George Howard, Jr., former Justice; c/o Arkansas Appeals

Court, Justice Bldg. as above

Richard H. Wootton, Acting Justice; Hot Springs, Ark.

W. Russel Meeks III, Deputy Attorney General; Joe Pur-

vis, Deputy Attorney General; and James E. Smedley, Assistant

Attorney General; All of Justice Bldg., as above

Lowber Hendricks, Circuit Judge; County Courthouse,

Little Rock, Ark.

H. A. Taylor, Circuit Judge; County Courthouse, Pine

Bluff, Ark.

Andrew G. Ponder, Circuit Judge; County Courthouse,

Newport, Ark.

Leroy Blankenship, Circuit Judge; County Courthouse,

Batesville, Ark.

Robert Dudley, Chancellor; County Courthouse, Pocahon-

tas, Ark.

T. J. Hively, Prosecuting Attorney; and Wesley Ketts, Jr,

Deputy Prosecuting Attorney; Both of Main Street, Batesville,

Ark.

Philip Farris, former Deputy Prosecutor; College Street,

Batesville, Ark.

William “Bill” Harkey, Circuit Clerk; County Courthouse,

Batesville, Ark.

Noel Baldridge, Sheriff; County Courthouse, Batesville,

Ark.

Andrew Frolos, former Deputy Sheriff; Cave City, Ark.

72521

Veta M. Gordon, Foreman of 1977 Grand Jury; Pleasant

Plains, Ark. :

Other members of the Grand Jury as follows:

Clyde J. Phillips, Polly Gay Bennett, Pauline R. Robert-

son, Marcus E. Branscum, Jay S. Laney, Jimmy F. Martin,

Thomas Evans Glenn, Paul E. Mason, Dora E. Hix, Verna Mae

Hebisen, Raymond La Croix and Lillie Mae Morgan.

All of the above named persons are or were at the time of

the circuit court proceedings in his cause, officials or employees

of the state of Arkansas or one of its subdivisions.

The Attorney General of Arkansas is designated by Ark.

Stat. Ann. Sec. 12-701 (Repl 1968) to be the attorney and

Respondent for officials and departments of the state, and

representation of all above-listed interested parties should be

handled through and by his office.

OTHER INTERESTED PARTIES

Charles Patterson, c/o attorney Steve Engstrom, Little

Rock, Ark.

R. Ford Wilkinson, College Street, Batesville, Ark.

J. Lynn Mellor, North Little Rock, Ark.

John Norman Harkey, attorney, Batesville, Ark.

Roy Ockert Jr., Managing Editor, Batesville Guard,

Batesville, Ark.

PARTIES IN AGREEMENT

Interested parties who have expressed views or made news

reports in agreement with petitioner and who might desire to

present briefs in support of petitioner pursuant to authority of

Rule 10 (4) of the U.S. Supreme Court are listed below.

The first brief of such parties must be filed within thirty

days 2fier receipt of this petition, and subsequent briefs must be

filed within the time frame allowed to petitioner.

Governor Bill Clinton

Former Justice George Howard

Justice John I. Purtle

Charles Patterson

Roy Ockert, Jr.

SUMMARIZATION

Although working under severe handicaps; a very painful

physical condition, funds extremely limited to a Veteran’s pen-

sion, necessity to travel a round-trip distance of 250 miles to the ~

State Supreme Court’s library at Little Rock, deep-seated pre-

judice of laws, customs and rules to discourage pro se law prac-

tice (for example the University of Arkansas Law School at Lit-

tle Rock forbade me to use research services that students

render for lawyers because I was not licensed as such),

deliberate destruction of court records and failure to file orders

— I have done my best to provide a case that is acceptable to the

Supreme Court of the United States, and that can provide me

personally, my family, and the people of Arkansas with much

needed relief.

In seeking this relief, I do NOT IN ANY WAY

WHATSOEVER waive any claims or rights I might possess to

further seek relief in civil actions against any or all of the con-

spirators who suppressed my newspaper.

Although this clearly is a Civil Rights Case, it does not in-

volve RACIAL oppression as far as I, personally, or my family

is concerned. I am of Anglo-Saxon White Protestant descent,

and am myself, on the paternal side of my family, the product of

13 generations on American soil, nearly all of them preachers,

teachers, editors, writers, lawyers and frontier judges.

I am grateful for the opportunity to present this petition to

the Supreme Court, and especially grateful that Mr. Justice

Blackmun was able to extend my time for filing, that had been

consumed by illness and other impediments shown above.

It will be necessary for me to return to a veteran’s hospital

early in October for surgery by laser beam on my eyes to halt

and correct the ravages of diabetes upon them.

However, I hold myself in readiness to come to Washington

for Oral Argument and would consider it an honor worthy to be

handed down'to my posterity to participate in such an historic

occasion in an attempt to free my beloved State of Arkansas of a

court system that is still, in many locations, operating in

procedures inherited directly from the Middle Ages of England.

If this court can find means to grant certiori.

Respectfully,

Joseph H. Weston

pro se -

P.O. Box 84

Cave City, ARKANSAS 72521

A signed copy of this petition is on file with the Clerk of the

Supreme Court of the United States.

AFFIDAVIT OF SERVICE

SUBMITTED IN COMPLIANCE WITH RULE 33 (C)

I, Joseph H. Weston, petitioner pro se, hereby swear and

affirm that I have begun the service of at least one copy of this

petition to each person whose name appears on the list of

Interested Persons herein — on the same day I have mailed 40

copies of the petition to the clerk of the Supreme Court of the

United States.

Receipt of the petition by all interested parties is expected

to be effected on or before October 10, 1979.

Most of the petitions are being delivered by mail, but

others, especially those clustered at the Justice Building in Lit-

tle Rock, are being delivered in person, this being more con-

venient and less costly.

Joseph H. Weston, pro se

Box 84, Cave City, Ark. 72521

NOTARIZATION

Joseph H. Weston, a person well known to me, has

appeared before me this day of September, 1979 and

sworn and affirmed that all statements in the foregoing instru-

ment are true and correct, to the best of his knowledge and

belief.

Notary Public

My Commission Expires:

A signed copy of this Affidavit of Service and signed and sealed

copy of its Notarization are on file with the Clerk of the

Supreme Court of the United States.

—

APPENDIX

LAW OR CHANCERY MANDATE

STATE OF ARKANSAS, )

In the Supreme Court )

BE IT REMEMBERED, That at a term of the Supreme

Court of the State of Arkansas begun and held at the Court

Room in the City of Little Rock, on the 2nd day, being the first

Monday of October, A.D. 1978, amongst others were the

following proceedings, to-wit:

SCT.

On the 30th day of April, A.D. 1979, a day of said term

JOSEPH H. WESTON, Appellant

Appeal from Independence

County Circuit Court

No. vs.

STATE OF ARKANSAS, Appellee

Rehearing denied. Harris, C.J., and Fogleman, J., not par-

ticipating.

IN TESTIMONY, That the above is a true copy of the

order of said Supreme Court, rendered in the case therein

stated, I, Jimmy H. Hawkins, Clerk of said Supreme Court,

hereunto set my hand and affix the Seal of said Supreme Court,

at my office in the city of Little Rock, this 22nd day of August,

A.D. 1979.

JIMMY H. HAWKINS

Clerk

By: CINDIA FOREMAN, D.C.

I 851 LP LATE ER ORE! AL OPO ION NAO OE

Re Re we Ae Re LT Ee Att

IN THE SUPREME COURT OF ARKANSAS

ORDER CONCERNING ASSIGNMENT OF JUDGES

No. 77-136

Under the authority vested in the Chief Justice of the

Supreme Court of Arkansas by Act 496 of 1965 as amended,

Judge H.A. Taylor of the Eleventh Judicial Circuit is hereby

assigned to the Third Judicial Circuit to try the cases of:

State vs. Joseph H. Weston

Independence Circuit No. CR-77-133

and

Jackie Hall et al vs. Joseph H. Weston

Independence Circuit No. CIV-77-190

Filed: at 10:30 a.m., December 15, 1977, W.M. Harkey, Clerk

and Recorder

This assignment includes all ancillary proceedings which

may arise in connection with said causes and proceedings sub-

sequent thereto shall be held at such time or times as shall be

directed and ordered by Judge H.A. Taylor.

The assignment of Judge H.A. Taylor to the Third Judicial

Circuit entails only additional duties, and jurisdiction in the

Eleventh Judicial Circuit shall remain in Judge H.A. Taylor to

the same extent as though this assignment had not been made.

SPECIAL PROVISIONS: None

This order made and entered this 13th day of December,

1977.

Filed: December 14, 1977

CARLETON HARRIS

Chief Justice

SUPREME COURT OF ARKANSAS

(In Banc)

No. CR 77-238

Opinion delivered February 12, 1979

Appeal from Independence Circuit Court, Andrew Ponder,

Circuit Judge; Robert Dudley, Special Judge

Joseph H. Weston

DEW UEOUSCUE cebashiecessias ee Appellant

vs.

State of Arkansas (Independence

I cone cee mn nechcnsas Appellee

Affirmed.

Stephen A. Matthews, Special Chief Justice:

Appellant seeks relief in this Court from an indictment

returned against him by an Independence County Grand Jury

charging him with four counts of perjury. A brief statement of

the factual background follows.

Appellant, the editor and publisher of a Sharp County

newspaper, published an article in the September 19, 1977 issue

of his paper alleging the existence of a prostitution ring, and

oe ee ee ee we

other vice operations and narcotics traffic in Independence

County. An Independence County Grand Jury investigated the

matter and concluded its activity on November 19, 1977 by

returning a four-count indictment for perjury against appellant,

arising out of his testimony before the Crand Jury.

Throughout the course of the Grand Jury investigation,

appellant filed numerous pleadings in the Independence Circuit

Court, including a Motion to Quash the Grand jury on

November 3, 1977. The thrust of this motion was that the

Grand Jury was a tool of corrupt law enforcement officials and

judges who had set out on a course designed to harrass and in-

timidate appellant and to drive him and his newspaper out of

business.

Because of the pendency of a lawsuit in Lawrence County

in which appellant and Circuit Judge Andrew Ponder were

adversary parties, Judge Ponder recused himself, and on Oc-

tober 25, 1977, Chancellor Robert Dudley of Pocahontas was

assigned to

“hear All Matters Pertaining to Joseph H. Weston’s

Appearance Before the Independence County Grand Jury.

This assignment includes all ancillary proceedings which

may arise in connection with said cause and proceedings

subsequent thereto.”

This assignment was made by the Chief Justice of this

Court pursuant to the authority of Arkansas Statute 22-142.

Appellant asserts in his Brief and in oral argument that on

November 18, 1977 Judge Dudley “abandoned” the case and

that Judge Ponder erroneously resumed jurisdiction and on

November 19, took certain improper action, including granting

immunity to a witness named Patterson and “forcing”’ Patter-

son to testify against appellant, accepting the report of the

Grand Jury, ordering the arrest of appellant, and fixing the

amount of appellant’s bail bond. One of the troubles with

appellant’s contentions is that the official record before this

Court does not show that Judge Ponder took this action. Only

the statements of appellant in his brief and his various

pleadings, and a copy of a newspaper clipping appellant lodged

with this Court, indicate such action by Judge Ponder.

It is virtually impossible for us to determine the relief

appellant seeks. In his Reply Brief he says:

“An examination of my Briefs and pleadings will show that

my appeal is NOT directly based upon the indictments

themselves, per se.

“At the risk of being rebuked for violation of various rules

of court procedure, I am directly appealing the erroneous

conduct of two wilful judges and a crooked prosecuting at-

torney. The grand jury was only the willing and ignorant

tool and these two judges — and their courts — and of

Blankenship.”

In another place in his Reply Brief, appellant says he seeks

from this Court:

“An order to quash en toto all activities of the corrupt

Independence County Grand Jury from October 18, 1977

to November 19, 1977, inclusive.

“A reversal of all orders of all judges, written or otherwise,

oral or otherwise, entered in the court record or not

entered in the court record, issued or acted upon in open

court or in secret sessions, or otherwise acted upon, lawful

or unlawful, that were issued in any way in connection

with or in association with activities of the Grand Jury dur-

ing its entire term.”

Apparently appellant hopes this Court will fashion some

unspecified form of relief for him, delivering him from, and

rebuking, those whom he counts as his oppressors.

It should be noted that appellant has not moved that the

indictment against him be quashed. The nearest he has come to

such a request is his motion to quash the Grand Jury panel filed

on November 3, 1977 and denied by Judge Dudley on

November 4. This took place two weeks before the indictment

was returned against appellant.

We decline, at this stage of the proceedings, to disturb the

indictments against appellant for three reasons.

First, there is no appealable order before us. See Alexander

v. State, 260 Ark. 785, 545 S.W. 2d 606 (1976); and State v. Lang-

staff, 231 Ark. 736, 332 S.W. 2d 614 (1960). Appellant has been

indicted, but he has not been convicted of any offense. We have

been cited to no authority holding that a right of appeal exists

from an indictment by a Grand Jury. Rule 36.1 of the Rules of

Criminal Procedure provides in part: 3

“Any person convicted of a misdemeanor or a felony by

virtue of a trial in any circuit court of this State has the

right to appeal to the Supreme Court of Arkansas.”

This provision is practically identical to Ark. Stat. 43-2701.

Because of the absence of a final order of the trial court

settling some issue against appellant, or finding him guilty of

some offense, an appeal to this court will not lie at this stage of

the proceeding.

Second, we are committed to the rule that we will not

review matters not in the record. Harvey v. Castleberry, 258 Ark.

722, 529 S.W. 2d 324 (1975); Poindexter v. Cole, 239 Ark. 471, 389

S.W. 2d 869 (1965); Becker v. Rogers, 235 Ark. 603, 361 S.W. 2d

262 (1962); and Jernigan v. Pfeifer Brothers, 177 Ark. 145, 5 S.W.

2d 941 (1928). In Becker, we said:

“*At the outset, let it be mentioned that the briefs contain,

and make reference to, many matters that do not appear iii

the record. Appellee’s brief, in large measure, is devoted to

extraneous material, and appellants, in their reply brief, to

some extent, follow the same practice. The fact that we do

not consider statements beyond the recard is so axiomatic

as to require no citation of authority.”’

The “record” appellant presents us pertaining to the alleged ac-

tions of Judge Ponder consists of a newspaper account of

i indictment and appellant’s own assertions in his

ief.

Nor will we afford relief which is not first sought in the trial

court and denied. Bond v. State, 230 Ark. 962, 328 S.W. 2d 369

(1959); Hicks v. State, 225 Ark. 916, 287 S.W. 2d 12 (1956); and

Yarbrough v. State, 206 Ark. 549, 176 S.W. 2d 702 (1944).

The only relief appellant sought in the Independence Cir-

nae Td ee be TE rt esas SY.

Pee. 6 ares et

BROAD sek 2

OANA

cuit Court which he now seeks here, as far as we can ascertain,

is that the Independence County Grand Jury be quashed from

its inception. The record filed in this Court, disregarding appel-

lant’s assertions and the newspaper account, which cannot be

treated as a “record,” does not establish any basis for the gran-

ting of such relief.

Third, appellant’s brief is in flagrant disregard of Rule 9 of

this Court. His statement of the case, instead of being a concise

statement of the case, without argument, as required by Rule

9(b) is a highly partisan account of what he believes to be in-

justices perpetrated upon him by those whom he perceives to be

his enemies. More importantly, the abstract is in no sense an

impartial condensation of the record, without comment or

emphasis, as required by Rule 9(d).

Rule 9 does not exist as a snare for unwitting litigants or for

those who appear before the Court, pro se. In fact, we are inclin-

ed to be more lenient in invoking Rule 9 in the case of persons

appearing pro se than in other cases. But the jurisdiction of this

Court is limited to appellate jurisdiction only. Arkansas

Constitution, Article 7, Section 4; Ark. Stat. 27-2101. We do not

try anew all litigation, or come to the assistance of appellants,

pro se or otherwise, by combing the record and re-writing their

pleadings for them and re-shaping their prayers into some form

of relief which this Court may grant. We look only to see if the

record shows that the trial court committed an error prejudicial

to the appealing party. To aid in a speedy determination of

appeals we, along with most other appellate courts, have

promulgated Rule 9(d) placing upon appellants the burden of

furnishing an abstract of the record consisting of an impartial

condensation, without comment or emphasis, of only such

material parts of the pleadings, proceedings, facts, documents

and other matters in the record as are necessary to an under-

standing of all questions presented to this Court for decision.

Our refusal to afford appellant relief at this stage of the

proceedings is based on all or any of the three reasons set out

above, i.e., no appealable order is before us, the record does not

support appellant’s position and there has been no compliance

with Rule 9.

We do not hold that appellant is precluded from question-

ing the validity of the indictment which the Grand Jury return-

ed against him. Nothing in this opinion prejudices a proper at-

tack on the indictment. If appellant is tried and convicted and

then chooses to attack the indictment by pleadings presented

first in the trial court, basing his attack on matters reflected in

the record, certainly the validity of the indictments may be ex-

amined. In fact, we take this occasion to observe that if the

regular presiding Circuit Judge of Independence County, who

had recused himself from taking any part in the Grand Jury

proceedings involving appellant, did in fact resume jurisdiction

over matters involving appellant and take discretionary action,

it may well be that the indictment cannot stand if it is ques-

tioned on an appeal from a conviction. Bolden v. State, 262 Ark.

718, 361 S.W. 2d 281 (1978). If no stenographic record of the

proceedings was made, our procedure permits the omission to

be supplied by a bystander’s bill of exceptions. Graham v. State,

264 Ark. 489, 572 S.W. 2d 385 (1978).

Affirmed.

Special Justice Richard H. Wootton joins in the opinion.

Harris, C.J., and Fogleman, J., not participating.

Purtle, J., dissents.

John I. Purtle, dissenting. The appellant, Joseph H.

Weston, formerly published a newspaper known as the Sharp

Citizen. I understand the word Sharp is used in honor of or to

designate the county rather than in its ordinary meaning. There

is little doubt that appellant had the ability to arouse the ire of

public officials and other citizens to a degree seldom equalled by

any editor or publisher. Nevertheless, he was producing a

newspaper which was entitled to all the rights and protection

enjoyed by other media vehicles pursuant to the state and

federal Constitutions. Although his publication was not in con-

formity with our standard publications, it nevertheless was a

“freedom of the press” product.

Ark. Const. Art. 2, §6, states:

Liberty of the press and of speech — Libel. — The liberty

of the press shall forever remain inviolate. The free com-

munication of thoughts and opinions is one of the in-

valuable rights of man; and all persons may freely write

and publish their sentiments on all subjects, being respon-

sible for the abuse of such right. In all criminal

prosecutions for libel the truth may be given in evidence to

the jury; and, if it shall appear to the jury that the matter

charged as libelous is true, and was published with good

motives and for justifiable ends, the party charged shall be

acquitted.

This provision has been in full force and effect since 1874,

thereby giving the distinct impression that the people of Arkan-

sas are satisfied with it. This Article has built into it a measure

of protection to the innocent people and proper restraints

against abuse of the press. It provides all persons may freely

write and publish their sentiments on all subjects, being responsi-

ble for the abuse of such right. It further: vides that the truth of

any such matters so published shall be a defense to any action

for libel. I know of no instance where a judgment has been

rendered against appellant on account of articles published by

him.

Appellant is not a lawyer, and there is no questio

this Court would be justified under the vine atrerseert of

our rules in dismissing his appeal. However, under unusual cir-

cumstances, the Court has waived the rules. In all probability

we are going to review this case again. Nevertheless, we ought to

be able to rule on it with some degree of finality the next time it

comes. We will be unable to do so unless we, at least, give some

guidelines to be followed before it is again before us.

It can be determined from appellant’s brief that he is clear-

ly urging he has been punished for exercising his rights as

guaranteed by the Constitution. We are also able to determine

that some of the events which occurred are not in the record, nor

will they be in the record when it is next before us. If one parr

was relieved of all responsibilities of the Joseph H. Weston

matter, and another undertook to handle these same matters

then it was not proper for the judge so relieved to assume jurie-

diction again without proper authority. It is alleged by

appellant, and not disputed by the state, that the recused judge

happened to be in Independence County on Saturday

November 19, 1977, when the Grand Jury returned the in.

dictments against the appellarit. The recused judge granted im-

munity to a witness before the Grand Jury, denied a motion

made by appellant, met with the Grand Jury, and accepted

their report. Only the judge having jurisdiction of the case

ee ee eee

should have performed these acts, if in fact they were per-

formed, and the record, such as it is, appears to establish these

facts. When the case arrives here again, this matter will still be

unresolved because it is not “officially” in the record and we

will then be compelled to send it back.

Essentially, appellant is asking this Court to dismiss the in-

dictments. The state admits an appeal will lie from the denial of

a motion to dismiss an indictment. If this is the law, then we

really have an appealable order before us even though the words

are not expressed in those exact terms. There is no question that

appellant raised every issue possible at every stage of the

proceedings. His ideas are not presented for the first time on

appeal.

The minutes of the Grand Jury have apparently never been

furnished to appellant. If the prosecutor was in fact directing

the whole proceedings and was present during the deliberation

of the Grand Jury, it is a reversible error. Some parts of the

record were found after this Court entered a mandate to the

lower court. The record is still technically incomplete.

Appellant earnestly contends throughout every stage of the

proceedings that he is being persecuted for the exercise of his

freedom of speech. If only a portion of his allegations are true,

he has merit to his arguments. Our Bill of Rights was instituted

to end the restraints which at one time had been imposed upon

the people of England. These rights have, no doubt, been a

mighty force in guiding this nation to its present degree of

greatness among tte nations of the world and remains a corner-

stone or foundation to our Republic and its democratic

processes. There are times when we feel these privileges and

rights are abused, but such thoughts are usually of a short dura-

tion. Although appellant may have been viewed as a

pusillanimous polecat by some people, he may have been

nevertheless exercising his rights as guaranteed by the Constitu-

tion.

In view of the state of the record and all of the implications

and allegations, I would reverse and return this case to the

lower court for a fresh start from the beginning, if there is still a

desire to prosecute the appellant.

Supreme Court of the United States

No. A-56

Joseph H. Weston Petitioner

v. CR77-238

Arkansas

ORDER EXTENDING TIME TO FILE

PETITION FOR WRIT OF CERTIORARI

Upon Consideration of the application of petitioner,

IT IS ORDERED that the time for filing a petition for writ

of certiorari in the above-entitled cause be, and the same is

Pa Naa Rs BT Be

Se ON et ER A, EEE

hereby, extended to and including September 27, 1979.

/s/ Harry A. Blackmun

Associate Justice of the Supreme

Court of the United States

Dated this 21st day of July, 1979.

ARKANSAS FREEDOM OF INFORMATION ACT

Act 93 of 1967

As amended by Act 1201 of 1976 and Act 652 of 1977.

Section 12-2801. TITLE OF ACT. — This Act shall be

known and cited as the ‘Freedom of Information Act” of 1967.

Section 12-2802. DECLARATION OF PUBLIC POLICY.

— It is vital in a democratic society that public business be per-

formed in an open and public manner so that the electors shall

be advised of the performance of public officials and of the

decisions that are reached in public activity and in making

public policy. Toward this end, this act is adopted, making it

possible for them, or their representatives, to learn and to report

fully the activities of their public officials.

Section 12-2803. DEFINITIONS. — ‘Public records” are

writings, recorded sounds, films, tapes, or data compilations in

any form

(a) required by law to be kept, or

(b) otherwise kept and which constitute a record of the

performance or lack of performance of official functions

which are or should be carried out by a public official or

employee, a governmental agency, or any other agency

wholly or partially supported by public funds or expending

public funds.

All records maintained in public offices or by public

employees within the scope of their employment shall be

presumed to be public records. Provided, that compilations,

lists, or other aggregations of ‘‘personal information”, deter-

mined to be confidential by the State Information Practices

Board pursuant to its duties set forth in sub-section 2 of sub-

section (k) of Section 4 of Act 730 of 1975, being Arkansas Stat.

Ann. 16-801, et. seq., shall not be considered to be ‘Public

Records” within the terms of this Act and shall not be supplied

to private individuals or organizations.

“Public meeting”’ are the meetings of any bureau, commission

or agency of the State, or any political subdivision of the State,

including municipalities and counties, boards of education, and

all other boards, bureaus, commissions or organizations in the

State of Arkansas, except grand juries, supported wholly or in

part by public funds, or expending public funds.

Section 12-2804. EXAMINATION AND COPYING OF

PUBLIC RECORDS. — Except as otherwise specifically

provided herein, by laws now in effect, or laws hereinafter

specifically enacted to provide otherwise, all public records shall

be open to inspection and copying by any citizen of the State of

Arkansas during the regular business hours of the custodian of

ER Cod eee SOIR ne ee oe

the records. It is the specific intent of this Section that State in-

come tax returns; medical, scholastic, and adoption records; the

site files and records maintained by the Arkansas Historic

Preservation Program and the Arkansas Archeological Survey;

grand jury minutes; unpublished drafts of judicial or quasi-

judicial opinions and decisions; undisclosed investigations by

law enforcement agencies of suspected criminal activity; un-

published memoranda, working papers, and correspondence of

the Governor, Legislators, Supreme Court Justices, and the At-

torney General; documents which are protected from disclosure

by order or rule of court; files which, if disclosed, would give ad-

vantage to competitors or bidders; and other similar records

which by law are required to be closed to the public shall not be

deemed to be made open to the public under the provisions of

this Act.

Reasonable access to public records and reasonable com-

forts and facilities for the full exercise of the right to inspect and

copy such records shall not be denied to any citizen.

If a public record is in active use or in storage and,

therefore, not available, at the time a citizen asks to examine it,

the custodian shall certify this fact in writing to the applicant

and set a date and hour within three (3) days, at which time the

record will be available for the exercise of the right given by this

Act.

Section 12-2805. OPEN PUBLIC MEETINGS. — Except as

otherwise specifically provided by law, all meetings, formal or

informal, special or regular, of the governing bodies of all

municipalities, counties, townships, and school districts, and all

boards, bureaus, commission, or organizations of the State of

Arkansas, except Grand Juries, supported wholly or in part by

public funds, or expending public funds, shall be public

meetings.

. The time and place of each regular meeting shall be fur-

nished to anyone who requests the information.

In the event of emergency, or special meetings the person

calling such a meeting shall notify the representatives of the

newspapers, radio stations and television stations, if any,

located in the county in which the meeting is to be held and

which have requested to be so notified of such emergency or

special meetings, of the time, place and date at least two (2)

hours before such a meeting takes place in order that the public

shall have representatives at the meeting.

Executive sessions will be permitted only for the purpose of

considering employment, appointment, promotion, demotion,

disciplining or resignation of any public officer or employee.

(a) Only the person holding the top administrative posi-

tion in the public agency, department, or office involved;

the immediate supervisor of the employee involved; and

the employee may be present at the executive session when

so requested by the governing body, board, commission or

other public body holding the executive session.

(b) Any person being interviewed for the top ad-

ministrative position in the public agency, department, or

office involved may be present at the executive session

when so requested by the governing board, commission or

other public body holding the executive session.

Executive sessions must never be called for the purpose of

one the reason or the spirit of the Freedom of Information

ct.

rae

PDN SEITE FOAL 08 ste Ce

No resolution, ordinance, rule, contract, regulation or mo-

tion considered or arrived at in executive session will be legal

unless following the executive session, the public body

reconvenes in public session and presents and votes on such

resolution, ordinance, rule, contract, regulation, or motion.

Section 12-1806. ENFORCEMENT. — Any citizen denied

the rights granted to him by this Act may appeal immediately

from such denial to the Pulaski Circuit Court, or to the Circuit

Court of the residence of the aggrieved party, if an agency of the

State is involved, or to any of the Circuit Courts of the ap-

propriate judicial districts when an agency of a county,

municipality, township or school district, or a private organiza-

tion supported by or expending public funds is involved. Upon

written application of the person denied the rights provided for

in this Act, or any interested party, it shall be mandatory upon

the Circuit Court having jurisdiction, to fix and assess a day the

petition is to be heard within seven days of the date of the

application of the petitioner, and to hear and determine the

case. Those who refuse to comply with the orders of the court

shall be found guilty of contempt of the court.

Section 12-2807. PENALTY. — Any person who willfully and

knowingly violates any of the provisions of this Act shall be guil-

ty of a misdemeanor and shall be punished by a fine of not more

than $200, or 30 days in jail, or both.

Truman BOLDEN and Dozier BOLDEN

v. STATE of Arkansas

CR 77-89 561 S.W. 2d 281

Opinion delivered January 30, 1978

(Division 1!)

|Rehearing denied March 6, 1978.]

CourTs — DISQUALIFICATION OF JUDGE — LIMITED JUDICIAL

CAPACITY TO ACT FURTHER. — Where a judge announced from

the bench and for the record at the inception of a pretrial con-

ference that he was voluntarily disqualifying himself from par-

ticipating in the case, he lost jurisdiction of the case and was

without authority to act further in any judicial capacity except

to make the proper transfer of the case or take the appropriate

steps for the selection of another judge.

Courts — PROPER ADMINISTRATION OF LAW — JUDGE MUST AVOID

ALL APPEARANCES OF UNFAIRNESS. — The proper administration

of the law requires not only that judges refrain from actual bias,

but also that they avoid all appearances of unfairness.

TRIAL — VERDICT FORMS — SUBMISSION OF ERRONEOUS VERDICT

FORMS TO JURY REVERSIBLE ERROR. — Reversible error was com-

mitted where the verdict forms submitted to a jury provided

blank spaces for the jury, upon a finding of guilty, to insert the

number of years imprisonment “and” the amount of fine assess-

ed, instead of using the terminology “and/or”, thereby in-

dicating to the jury that the assessment of both fine and im-

prisonment was mandatory, while under Arkansas law the en-

forcement of penalties is optional with the jury.

CRIMINAL LAW — ARREST — PROMPT HEARING REQUIRED FOR

DETERMINATION OF PROBABLE CAUSE. — An arrested person who

is not released by citation or by other lawful manner shall be

taken before a judicial officer without unnecessary delay to the

end that a judicial determination of probable cause may be

made as a prerequisite to extended restraint of the arrestee’s

liberty following arrest.

ARKANSAS RULES OF CRIMINAL PROCEDURE — RULE 8.1 PROVIDING

THAT ARRESTED PERSON BE TAKEN BEFORE JUDICIAL OFFICER

PROMPTLY — PURPOSE. — Rule 8.1, Ark. Rules of Crim. Proc.,

which provides that an arrested person who is not released by

citation or by other lawful manner shall be taken before a

judicial officer without unnecessary delay, is designed and has

its purpose to afford an arrestee protection against unfounded

invasion of liberty and privacy, and is mandatory.

CRIMINAL LAW — ARREST — CONSTITUTIONAL RIGHTS OF PERSON

ARRESTED. — The right of a person under arrest to be taken

es ee

<td PLES Ds IIT

iudicial officer without unnecessary delay where he will

rast charges explained to him, will be advised of his i

stitutional rights, and will have counsel appointed for him | a

indigent, and arrangements for bail expedited, are basic we

fundamental rights secured to every arrestee under state an

federal constitutions.

7. CRIMINAL LAW — FAILURE TO TAKE PERSON ARRESTED BEFORE

JUDICIAL OFFICER WITHOUT UNNECESSARY DELAY — eosiconpin

CHARGES NOT REQUIRED. — The failure to take a — er

arrest before a judicial officer without ee ~ ay, “

required by Rule 8.1, Ark. Rules of Crim. Proc. (1976), does no

dictate dismissal of the charges. ‘a

8 CRIMINAL LAW — PROSECUTION BY INFORMATION — JUDICIAL

HEARING NOT PREREQUISITE. — A judicial hearing is not prereq-

isi i i tion.

uisite to prosecution by informa

9. CRIMINAL LAW — ILLEGAL ARREST OR DETENTION — SUBSEQUENT

CONVICTION NOT VOIDED. — Illegal arrest or detention does not

void a subsequent conviction.

is Circui irst Division

Appeal from St. Francis Circuit Court, First "

John 4 yore Judge; reversed and remanded.

E. Alvin Schay and Leon Marks, for appellants.

Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst.

Atty. Gen., for appellee.

Georce Howarp, JR., Justice. The issue to be wogets

is whether the trial court cormpmitted prejudicial errors “~ on

course of appellants’ trial, and if so, if these errors o =

magnitude as to vitiate appellants convictions ye ae =

ingly, as asserted by appellants, reduced their trial to a

formality.

THE FACTS

Iden, was

May 14, 1976, appellant, Truman Bo ;

nm anes an alleged altercation with Officer ogres

Carter of the Forrest City Police Department. Later that day,

a warrant was issued for the arrest of appellant, Dozier

Bolden, for his alleged participation in the altercation.

On June 23, 1976, the Prosecuting Attorney for the First

Judicial Circuit, of which St. Francis County is a part, filed

informations charging appellant, Truman Bolden, with first

degree battery and charging Dozier Bolden as an accomplice.

Appellants were formally arraigned in the Circuit Court

of St. Francis County on July 26, 1976, where pleas of not

guilty to the charges were entered.

On October 11, 1976, appellants filed their motion to

suppress the informations alleging that appellants had not

been afforded a preliminary hearing to the end that it be

determined if probable cause existed and that such failure

dictated a dismissal of the informations.

On October 22, 1976, a pretrial conference was con-

ducted by the Honorable O. H. Hargraves. During the

pretrial conference, an exchange between Judge Hargraves

and counsel for appellants culminated in counsel orally mov-

ing ‘that Judge Olman Hargraves be removed from the case

because of bias.’’ Judge Hargraves replied, ‘I will be glad to

excuse myself from it.”

udge Hargraves, however, proceeded with the selection

and instruction of a new jury commission for the selection of

special jurors for the trial of this cause only in accordance

with Ark. Stat. § 39-214.1 which was necessitated because of

Judge Hargraves having previously sustained appellants’ mo-

tion to quash the current jury commission and the petit jury

panel; the judge also reaffirmed that the trial of the case

would be held, as scheduled, on October 26, 1976, with Judge

John Anderson presiding; the judge also conducted a hearing

on appellants’ motion to suppress the informations and, at

the close of the hearing, denied the motion to suppress.

GPO et ROPE

The Honorable John L. Anderson presided at

appellants’ trial which commenced on October 26, 1976, and

ended October 29, 1976. The jury found appellant, Truman

Bolden, guilty of battery in the first degree, as charged, and

fixed his punishment at twenty years in the Department of

Correction and imposed a fine in the sum of $1,000.00.

Appellant, Dozier Bolden, was found guilty of battery in the

second degree and his punishment was fixed at three years in

the Department of Correction and a fine of $1,000.00 was

assessed.

APPELLANTS’ CONTENTIONS FOR REVERSAL

1. It was prejudicial error to deny the appellants a

preliminary hearing.

2. It was prejudicial error for Circuit Judge O. H.

Hargraves to exercise discretionary powers after he had

excused himself from appellants’ case.

3. It was error for the trial court to refuse to direct a

verdict.

4. It was prejudicial error to submit a verdict form

under which it cannot be said the jury acted according

to law.

THE DECISION

We are persuaded that appellants’ contentions two and

four have merit, and, accordingly, the verdicts and judgment

are reversed.

record reflects that Circuit Judge Hargraves, in

pre to appellants’ motion, voluntarily disqualified

himself from participating in this case at the inception of the

pretrial conference held on October 22, 1976. Having an-

—

nounced from the bench and for the record his disqualifica-

tion, Judge Hargraves lost jurisdiction of the case and was

without authority tc act further in any judicial capacity, ex-

cept to make the p:oper transfer of the case or take the ap-

propriate steps for the selection of another judge. However,

this record reflects that the transfer of the case was not made

until after Judge Hargraves had selected a new jury commis-

sion, instructed the new jury commission on its duties and

responsibilities and ruled on the validity of appellants’ mo-

tion challenging the charges pending against them on the

grounds that no preliminary hearing had been afforded

appellants.

The judge’s voluntary disqualification may have, in the

eeres es and their counsel, amounted to an ad-

bias and prejudice, and for the judge to proceed

with issues, raised by defendants, involving a saaies of

discretion, may have further supported their doubt or suspi-

cion of the impartiality of his rulings. Indeed, the proper ad-

ministration of the law requires not only that judges refrain

from actual bias, but also that they avoid all appearances of

unfairness.

Judge Hargraves, however, is to be commended for his

voluntary action, whether he actually sheltered any bias or

not, in order to dispel any thought or suspicion that the

litigants may not be receiving an impartial trial.

In 48 C.J.S., Section 97, at page 1195, it is provided:

“The disqualification of a judge generally depri i

y deprives him

of authority to perform any judicial act or to perform

ore are ly oe ey of judicial discretion in

ion with the pe ing cause, except to select

another judge or to make a transfer of the ee in accor-

dance with the law.”

Joseph H. WESTON v. STATE of Arkansas

CR 75-49 528 S.W. 2d 412

Opinion delivered October 20, 1975

1. CONSTITUTIONAL LAW — FREEDOM OF THE PRESS — TRUTH AS A

DEFENSE IN CRIMINAL LIBEL PROSECUTIONS. — Under the Arkan-

sas Constitution, in all criminal prosecutions for libel, the truth

‘s a defense even when the offending publication is not made

with good motives and for justifiable ends. jArt. 2, § 6.]

2. CONSTITUTIONAL LAW — JUDICIAL POWERS — CONSTRUCTION OF

STATUTES. — The Supreme Court must strive to uphold the con-

stitutionality of a statute but it may not read words into a

statute to save its constitutionality, and has no authority tc

legislate or to construe a statute to mean other than what it

says, if the statute is plain and unambiguous.

3. CONSTITUTIONAL LAW — CRIMINAL LIBEL STATUTE, APPLICATION

OF — JUDICIAL AUTHORITY. — The Supreme Court was without

authority to limit the application of the criminal libel statute in

order to meet requirements of the First and Fourteenth

Amendments to the U.S. Constitution where the statute was

plain and unambiguous, and clearly violative of the constitu-

tion.

4. LipeL — CRIMINAL LIBEL — VALIDITY OF STATUTE. —~ The

criminal libel statute Aeld unconstitutional in that it fails to

prohibit punishment for truthful criticism, and fails to prohibit

punishment for false statements regarding public officials unless

made with knowledge of their falsity or in reckless disregard of

whether they are true or false.

Appeal from the Clay County Circuit Court, Western

District, First Division.

Cearley & Gitchel, for appellant.

Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty.

Gen., for appellee.

LeRoy Autrey, Special Justice. Joseph H. Weston, the

editor and publisher of the Sharp Citizen, a weekly

newspaper of Cave City, has appealed his conviction in the

Clay County Circuit Court of the crime of criminal libel as

defined in Section 41-2401 et. sea.. Arkansas Statutes. The infor-

mation under which Weston was convicted alleged that he

had on November 30, 1973, published in the Sharp Citizen “a

false, malicious and defamatory libel’”’ which ‘“‘tended to im-

peach the honesty, integrity, veracity and reputation of . . .

Liddell Jones,” the Sheriff of Clay County. The information

charged and the undisputed evidence showed that the offen-

_ ding article in the Sharp Citizen was headlined as follows:

“SHARP CITIZEN MAKES A MISTAKE IN

REPORTING STORY OF CORNING AND

DISCOVERS THAT NARCOTICS RACKET

FLOURISHES IN CLAY COUNTY AND CORNING

UNDER DIRECTION OF SHERIFF LIDDELL

JONES, AN APPOINTEE OF GOVERNOR DALE

BUMPERS.”

The article below this headline included the following

statement:

“In the meantime, however, we also discovered that law

enforcement in Clay County has dropped to a low level

again under the direction of the present sheriff, Liddell

Jones, appointee of Governor Dale Bumpers who took

office following the passing away of Sheriff Pond. It was

Sheriff Liddell Jones and his deputies who made the

oo a of violence to witnesses of the death of Street

w. ”

Mary D. Shaw, the widow of Street Shaw, deceased,

testified that shortly after her husband had been shot and

killed on October 11, 1973, Weston had come to her house for

an interview to find out how her husband had been killed.

Mrs. Shaw testified that she gave Weston the information

which is set forth in the above set out newspaper headline and

article. She said that she told Weston that William Donald,

who was in jail wher her husband was killed, told her that he

could get dope from Sheriff Jones.

Sheriff Jones had served as Sheriff of Clay County for

about 15 months, succeeding Sheriff Bill Pond who had been

killed in an accident. He testified that he had made the com-

plaint against Weston; that the offending headline and the

story appearing in the Sharp Citizen were false; that since he

had been sheriff he had made arrests and pursued

prosecutions in 20 to 30 drug and narcotics violations; and

that he had been subjected to some degree of ridicule, scorn

and public hatred from the offending headline and article in

the Sharp Citizen.

The trial court jury instructions included the usual in-

structions in criminal prosecutions and the following:

COURT’S INSTRUCTION NO. 3

“It is unlawful, a crime, and a felony for any person to

maliciously defame, either by writing, printing, or by

signs or pictures or the like tending to blacken the

memory of one who is dead, or impeach the honesty, in-

tegrity, veracity, virtue or reputation or to publish the

natural defects of one who is living and thereby expose

him to hatred, contempt and ridicule as set out in Sec-

tion 41-2401 of the Arkansas Statutes.”

COURT’S INSTRUCTION NO. 5

“In all prosecutions for libel the truth may be given in

evidence in justification thereof.”

The Court refused the below set out instructions re-

quested by the appellant:

REQUESTED INSTRUCTION NO. 1

“You are instructed that there are situations in which

the law protects the author of a defamatory statement

from prosecution for Criminal Libel. Where this protec-

tion is afforded a privilege is said to exist and even

though the statement made be untrue, the author may

not be subjected to cfiminal prosecution unless the

statement was published with actual knowledge of its

falsity or with reckless disregard of whether it was false

or not. One area in which such a privilege exists is the

area of comment upon matters of public concern or

criticism of the official conduct of public officials.

“The Constitutional guaranty of freedom of speech and

of the press, contained in the First Amendment,

prohibits the imposing of criminal sanctions for truthful

criticism of public officials, and criminal liability may be

imposed for false defamatory criticism of the official con-

duct of a public official only if the statement is made

with express malice, which is defined as actual

knowledge that the statement is false, or a reckless dis-

regard as to whether or not it is true or false.”

REQUESTED INSTRUCTION NO. 2

“When we speak of express malice in criminal libel case

the term has a very distinct meaning apart from its or-

dinary use. A statement made with express malice is one

made with actual knowledge that it is false or with

reckless disregard of whether it is false or not. Therefore,

even if you find that the statement was false and was

made out of hatred you must acquit the defendant un-

less you also find beyond a reasonable doubt that the

defendant either knew the statement to be false or

published it with a reckless disregard of whether it was

false or not. To find the statement was vehement,

caustic, or unpleasantly sharp is not enough.”

The jury’s verdict found the appellant guilty and fixed

his punishment “at a fine of $4,000.00 and/or imprisonment

in the penitentiary for a period of three months.” The judg-

ment of the Court provided that the appellant should “be fin-

ed, in accordance with the verdict returned by the jury, $4,-

000.00, and that he be imprisoned in the state penitentiary

for a period of three months.”

The appellant contends that his conviction should be

dismissed on the grounds that Arkansas Statutes, Section 41-

2401 et. seq.', is violative of the rights guaranteed under the

First and Fourteenth Amendments to the Constitution of the

euaci.

bw 7a

1 Arkansas Statutes, “Section 41-2401 Libel Defined. A \ibel is a malicious

defamation, expressed either by writing, printing, or by signs or pictures, or

the like, tending to blacken the memory of one who is dead, or to impeach

the honesty, integrity, veracity, virtue, or reputation, or to publish the

natural defects, of one who is living, and thereby expose him to public

United States in that the statute (a) does not require that a

statement alleged to be libelous be false, (b) does not require

that the allegedly libelous statement be made with actual

malice when the statement refers to a public official or a

matter of public concern, and (c) is so vague, general and in-

definite in its terms that it fails to apprise one of the conduct

proscribed. Appellant also contends that the Trial Court

erred in refusing the appellant's requested instructions 1 and

2 above set out and that the Trial Court erred in entering

judgment and pronouncing sentence on the jury’s verdict.

The appellee contends (a) that the appellant’s requested

instructions 1 and 2 correctly states the constitutional limita-

tion on_a prosecution for criminal libel; (b) that the Trial

Court’s Fefusal to give instructions requested by the appellant

resulted in the statute being unconstitutionally applied to the

appellant; and (c) that this case should be reversed and

remanded for a retrial. The appellee contends that’‘a judicial

restriction of the statutory scheme in compliance with the

holdings of the United States Supreme Court will avoid the

necessity of striking the statute in question as un-

constitutional, and then the statute will have only been un-

constitutionally applied to the appellant.”

Appellant’s requested instructions 1 and 2 above set out

follow the rule established by the U. S. Supreme Court in

Garrison v. Louisiana, 379 U.S. 64, 78; 85 S. Ct. 209, 217

(1964). There the Court held that the Louisiana defamation

statute was invalid under the First and Fourteenth

Amendments to the Constitution of the United States. In so

holding the Court applied the rule laid down in a civil libel

case brought by a public official, Mew York Times v. Sullivan,

hatred, contempt and ridicule.

“Section 41-2402 Penalty for Libel. Every person, whether writer, printer

or publisher, convicted of the crime of libel, shall be fined in any sum not ex-

ceeding five thousand dollars ($5,000.00) and may also be imprisoned, not

exceeding one (1) year at the discretion of the jury who shall pass on the

case; and when. any such case shall be decided without the intervention ofa

jury, then at the discretion of the Court.

“Section 41-2403 Truth as justification for libel. In all prosecutions for libel

under the provisions of the prepeding sections, the truth thereof may be

given in evidence in justification.”

376 U.S. 254, 84 S. Ct. 710 (1964). In Garrison, the U.S.

Supreme Court held that the Louisiana defamation statute

was unconstitutional because it directed punishment for true

statements made with “actual malice,” contrary to the rule

laid down in New York Times, and in addition:

“The statute is also unconstitutional as interpreted to

cover false statements against public officials. The New

York Times standard forbids the punishment of false

statements, unless made with knowledge of their falsity

or in reckless disregard of whether they are true or false.

But the Louisiana statute punishes false statements

without regard to that test if made with ill-will; even if

A ead ut eRe ira rad pe

ill-will is not established, a false statement concerning

public officials can be punished if not made in the

reasonable belief of its truth.”

Like the Louisiana defamation statute in Garrison, Arkan-

sas Statutes, Section 41-2401 ef. seq., fails to prohibit punish-

ment for truthful criticism. Section 41-2403, Arkansas Statutes,

provides that truth ‘‘may be given in evidence in

justification,” but this falls short of the New York Times rule

which ‘absolutely prohibits punishment for truthful

criticism.” Garrison v. Louisiana, 379 U.S. 64, 78; 85 S. Ct. 209,

917. Under the rule laid down in Garrison, truth is a defense

even when the offending publication is not made “with good

motives and for justifiable ends”’ as provided in Article 2, Sec-

tion 6, of the Arkansas Constitution.’

Also, like the Louisiana defamation statute in Garrison,

the Arkansas criminal libel statute fails to prohibit punish-

ment for false statements regarding public officials, “unless

made with knowledge of their falsity or in reckless disregard

of whether they are true or false.” Nowhere in the Arkansas

2Article 2, Section 6, of the Arkansas Constitution provides:

“The liberty of the press shall forever remain inviolate. The free com-

munication of thoughts and opinions is one of the invaluable rights of man,

and all persons may freely write and publish their sentiments on all subjects,

being responsible for the abuse of such rights. In all criminal prosecutions

for libel the truth may be given in evidence to the jury; and, if it shall —

to the jury that the matter charged as libelous Is true, and was publishe

with good motives and for justifiable ends, the party charged shall be ac-

quitted.”

criminal libel statute is there any exception for criticism of a

public official.

The appellee argues that this Court may limit the

application of the Arkansas libel statute so that it meets the

requirements of the First and Fourteenth Amendments to the

U.S. Constitution as laid down by the U.S. Supreme Court in

New York Times and Garrison, but this Court must reject the

appellee’s argument. While this Court must strive to uphold

the constitutionality of a statute, it may riot read words into a

statute to save its constitutionality. This rule was well ex-

pressed in Board of Commissioners of Red River Bridge District v.

iW’ood et al, 183 Ark. 1082, 40 S.W. 2d 435, 438 (1931) as

follows:

“The rule requiring courts to uphold the statute, if there

is any doubt as to whether the power of the Legislature

exists under the Constitution, does not authorize the

court to read words into the statute even to save its con-

stitutionality. If the statute does not violate the

Constitution, or if there is any doubt about whether it

does or not, it is the duty of the court to uphold the

statute, but, if there is no doubt about the statute being

in conflict with the Constitution, then it is the duty of

the court to uphold the Constitution and declare the act

void, and it is only in cases where the language of the act

will bear two constructions that the court is justified in

adopting a construction that will sustain rather than one

which will defeat it.”

Clearly this Court has no authority to legislate or to con-

strue a statute to mean anything other than what it says, if

the statute is plain and unambiguous. Burrell v. State, 203 Ark.

1124, 160 S.W. 2d 218 (1942); Johnson v. Lowman, 193 Ark. 8,

97 S.W. 2d 86 (1936). The language of the statute here in-

volved is clear and unambiguous, and this Court has no

authority to amend the statute to conform to the rules laid

—- by the U.S. Supreme Court in New York Times and

In Commonwealth v. Armao, 286 A. 2d 626, 632 (1972) the

Supreme Court of Pennsylvania held that the Com-

monwealth’s criminal libel statute was unconstitutional

because (1) the statutory language made no provision for

truth being an absolute defense and (2) no recognition was

ee eT ean

a Peet) Preern

given in the statute to the reckless disregard and knowing

falsity standards mandated by the U.S. Supreme Court in

New York Times and Garrison. In rejecting the argument of the

Commonwealth that the Court should construe this criminal

libel statute to make it meet the requirements of the First and

Fourteenth Amendments to the U.S. Constitution, the Court

there stated:

“The Commonwealth urges us to in effect re-draft the

criminal libel statutes in accordance with First Amend-

ment requirements. To accede to this request would be

to undertake a wholly inappropriate judicial activity

amounting to judicial legislation. See State Board of

Chiropractic Examiner v. Life Fellowship of Pennsylvania, 441

Pa. 293, 300, 272 A. 2d 478, 482 (1971); Saulsbury v.

Bethlehem Steel Co., 413 Pa. 316, 320, 196 A. 2d 664, 667

(1964). Nor can we perceive any possible means of

merely severing out the invalid portions of the statutes,

for not only must the legislative body have intended the

statute or section to be separable, but also the act must

be capable of separation in fact. See Saulsbury v.

Bethlehem Steel Co., supra, at 320-321, 196 A. 2d at 666-

667.”

The above set out jury instructions numbered 3 and 5

given by the Trial Court correctly stated the statutory law,

but the Arkansas criminal libel statute is unconstitutional un-

der the rulings of the U.S. Supreme Court in New York Times

v. Sullivan, supra, and Garrison v. Louisiana, supra.

Reversed ane ‘tismissed.

FoGLeMAN, j., “>t participating.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.