# Petition — Weston v. Arkansas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0983%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 965 ## Text | 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. 3 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 4 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 5 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? 6 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 | 7 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 8 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. 9 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- 10 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. 11 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. 12 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! 13 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 14 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, 15 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 16 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? 17 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). 18 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 19 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 20 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. 21 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 22 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. 23 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? 24 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- 25 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 26 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 27 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? (c) ON FOUR orders of the State Supreme Court in the Record, Chief Harris is recorded as NOT participating in this 28 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 29 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. (c) Justice Fogleman consistently listed himself as “not 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- 30 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, 31 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. (c) Nothing in the Record, nor in the circuitous 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 32 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. 33 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 | — 34 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). 35 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 | 36 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 37 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 38 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, 39 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, 40 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 41 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. 42 (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 43 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 | 44 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. 45 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 46 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 47 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. > 48 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 49 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. 50 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. 51 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: 52 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 53 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. 54 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. 55 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. ee 56 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 57 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. — 58 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 59 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 60 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 61 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 62 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, 63 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.” 64 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 65 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 66 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. 67 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 68 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 69 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- 70 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 71 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 72 (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 73 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 74 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 75 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!) 76 |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 t participating. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0983%3A1. Public record. Not legal advice.