Boswell, Tucker & Brewster v. Shirron

BOSWELL, TUCKER & BREWSTER v. The Honorable
Phillip SHIRRON

95-964                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 29, 1996


1.   Prohibition -- extraordinary writ -- used only where court
     proposes to act in excess of its jurisdiction. -- A writ of
     prohibition is an extraordinary writ and is never issued to
     prevent a trial court from erroneously exercising its
     jurisdiction, but only where it proposes to act in excess of
     its jurisdiction.

2.   Prohibition -- issuance of writ is discretionary. -- Issuance
     of prohibition is discretionary in cases of pressing necessity
     and should never be granted unless the petitioner is clearly
     entitled to relief. 

3.   Prohibition -- no basis for requested relief. -- Where the
     record did not show that respondent court was proposing to act
     in excess of its jurisdiction or that petitioner was clearly
     entitled to the relief it requested, the supreme court
     determined that there was no basis upon which to grant the
     requested extraordinary relief.

4.   Appeal & error -- supreme court does not consider matters
     outside record. -- Where an affidavit attached to petitioner's
     brief was not part of the record or the supplemental record
     filed in the case, the supreme court did not consider it; the
     supreme court does not consider matters outside the record.

5.   Prohibition -- record did not show that prohibition was
     clearly warranted -- petition denied. -- Where the record did
     not demonstrate that respondent court had acted or proposed to
     act in excess of its jurisdiction and did not show that there
     was a pressing necessity or that the extraordinary remedy of
     a writ of prohibition was otherwise clearly warranted, the
     petition for writ of prohibition was denied.


     Petition for Writ of Prohibition (Saline Circuit Court;
Phillip Shirron, Judge); Writ denied.
     Boswell, Tucker, Brewster & Hicks, by: Ted Boswell, for
petitioner.
     Winston Bryant, Att'y Gen., by: Patricia Van Ausdall, Asst.
Att'y Gen., for appellee.

     Donald L. Corbin, Justice.Associate Justice Donald L.
Corbin, 4-29-96   *ADVREP8*





BOSWELL, TUCKER & BREWSTER,
                   PETITIONER,

V.

THE HONORABLE PHILLIP SHIRRON,
                   RESPONDENT,



95-964



PETITION FOR WRIT OF
PROHIBITION (SALINE CIRCUIT
COURT, SEVENTH JUDICIAL
DISTRICT, NO. CIV 93-352-1,
HON. PHILLIP SHIRRON, JUDGE),



WRIT DENIED.






     Petitioner, the law firm of Boswell, Tucker & Brewster, filed
this original action for a writ of prohibition against respondent,
the Honorable Phillip Shirron of the Saline County Circuit Court. 
Respondent did not respond, and we requested briefs from both
parties.  Boswell, Tucker & Brewster v. Shirron, 322 Ark. 111, 906 S.W.2d 315 (1995) (per curiam).  Petitioner seeks a writ
prohibiting respondent from exercising "any further jurisdictional
authority over any Boswell law firm case" and from "presiding as
the judge over any Boswell law firm litigation."  Jurisdiction of
a petition for writ of prohibition is properly in this court
pursuant to Ark. Sup. Ct. R. 1-2(a)(6).
     On May 25, 1995, respondent entered the following order, which
is quoted in its entirety:  
            IN THE SEVENTH CIRCUIT COURT OF GRANT,
          HOT SPRING, AND SALINE COUNTIES, ARKANSAS
                          UNIFORM ORDER
          Comes The Honorable Phillip Shirron, to transfer all
     cases in which the law firm of Boswell, Tucker and
     Brewster represents any party, to the other divisions of
     the Seventh Circuit Courts.
          IT IS SO ORDERED.
                              /s/ Phillip Shirron           
                              The Honorable Phillip Shirron
                              Circuit Judge

                              Date  5/25/95

On June 2, 1995, respondent entered the following order, which we
also quote in its entirety:
             IN THE SEVENTH CIRCUIT COURT OF GRANT,
          HOT SPRING, AND SALINE COUNTIES, ARKANSAS
                          UNIFORM ORDER
          Now, upon reconsideration of the Uniform Order
     entered by this Court on May 25, 1995, transferring all
     cases in which the law firm of Boswell, Tucker and
     Brewster represent any party to the other divisions of
     the 7th Circuit Courts, the Court finds that said Order
     should be and is hereby set aside and held for nought.
          IT IS SO ORDERED.
                              /s/ Phillip Shirron          
                              The Honorable Phillip Shirron
                              Circuit Judge

                              Date:  6/2/95  
          

     Petitioner asserts that, after entering the order on May 25,
1995, respondent lacked any further jurisdiction to act in any of
petitioner's cases.  Respondent argues that petitioner's attack is
on the two orders themselves, not on the underlying subject-matter
jurisdiction of the circuit court to enter such orders.  Therefore,
argues respondent, prohibition is not appropriate in this case. 
Respondent argues further that prohibition is inappropriate because
there is no record relative to the circumstances surrounding the
issuance of either order.  We agree with respondent's latter
argument.
     A writ of prohibition is an extraordinary writ and is never
issued to prevent a trial court from erroneously exercising its
jurisdiction, but only where it proposes to act in excess of its
jurisdiction.  Ridenhower v. Erwin, 303 Ark. 647, 799 S.W.2d 535
(1990).  Issuance of prohibition is discretionary in cases of
pressing necessity and should never be granted unless the
petitioner is clearly entitled to relief.  Id.  The record before
us does not show that respondent is proposing to act in excess of
its jurisdiction or that petitioner is clearly entitled to the
relief it requests.  Absent such proof, there is no basis upon
which to grant the extraordinary relief requested in this case.  
     Petitioner contends that the reason for the entry of the
May 25 order was a recusal required by respondent's bias or
prejudice against petitioner as counsel.  Petitioner relies on
Matthews v. State, 313 Ark. 327, 331, 854 S.W.2d 339, 341 (1993),
wherein we acknowledged authority for the proposition that, "absent
a statutory provision to the contrary, a determination of
disqualification will not prevent a judge from reassuming full
jurisdiction if the disqualification has been removed."  Despite
petitioner's strong suggestions to the contrary, the record does
not reveal that the reason for the May 25 transfer order was
respondent's disqualification; nor does the record reveal that any
reason for the alleged disqualification exists.  In this respect,
we note that the affidavit attached to petitioner's brief is not
part of the record or the supplemental record filed in this case. 
We do not consider the affidavit because we do not consider matters
outside the record.  Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257
(1996).
     In summary, there is no record to demonstrate any reason for
the transfer order, any alleged disqualification, or any continuing
reason for any alleged disqualification.  There is no
identification of which cases, if any, were transferred to other
divisions as a result of the May 25 order.  Likewise, there is no
indication that respondent has taken action in any specific case
involving petitioner.  Thus, the only issue before us is whether
respondent exceeded his jurisdiction in entering the June 2 order. 
In the absence of a record showing a reason for the transfer order
or that any of petitioner's cases were transferred, we conclude
that respondent did not act in excess of his jurisdiction in
entering the June 2 order.
     The record filed with this petition and the supplemental
record do not demonstrate that respondent has acted or has proposed
to act in excess of his jurisdiction.  Likewise, the record does
not show that there is a pressing necessity in this case or that
the extraordinary remedy of a writ of prohibition is otherwise
clearly warranted.  Accordingly, the petition for writ of
prohibition is denied.
     BROWN and ROAF, JJ., dissent.Associate Justice Robert L. Brown
April 29, 1996      *ADVREP8-A*







BOSWELL, TUCKER & BREWSTER,
                   PETITIONER,

V.

THE HONORABLE PHILLIP SHIRRON,
                   RESPONDENT,

95-964




PETITION FOR WRIT OF
PROHIBITION (SALINE CIRCUIT
COURT, SEVENTH JUDICIAL
DISTRICT, NO. CIV 93-352-1,
HON. PHILLIP SHIRRON, JUDGE),




DISSENTING OPINION.





    The essential issue in this case is whether the circuit judge
could, first, disqualify from all cases in which the Boswell Law
Firm represented a party and, then, reconsider his order and revoke
it.  The Boswell firm urges that the circuit judge lost
jurisdiction once he disqualified.  The Attorney General, on behalf
of the circuit judge, posits (1) that the circuit judge issued a
transfer order and not an order of disqualification, and (2) that,
in any case, disqualification is a discretionary matter with the
trial judge for which prohibition does not lie.  The majority
concludes that the record does not support the fact that the
circuit judge disqualified himself.  I disagree.  It is no
exaggeration to say that the disqualification issue permeates every
aspect of this case.
     On this point, the majority believes that the circuit judge's
affidavit and the petitioner's affidavit cannot be considered by
this court because they are not part of the record.  Again, I
disagree.  Clearly, the circuit judge's affidavit should be
reviewed because that affidavit is part of the file in the Supreme
Court Clerk's office.  Indeed, the respondent attached the
affidavit to his original response to the petition for prohibition. 
On October 9, 1995, this court issued a per curiam order requesting
"a full record and recitation of the material facts."  See Boswell
v. Shirron, 322 Ark. 111, 906 S.W.2d 315 (1995).  By happenstance,
on that same date the Attorney General responded on behalf of the
trial judge and attached to his filed response an affidavit of the
respondent which read in part:
     I was surprised at Ted Boswell's suggestion that I had
     not appeared impartial to his law firm.  Although the
     suggestion was unfair and totally without merit, my
     initial reaction was that if the Boswell Firm did not
     want me hearing cases in which they were involved, I
     would not do so.  I signed the proposed order and it was
     filed on May 25, 1995.  A copy of the order is attached
     as Exhibit "1" to the Petition for Writ of Prohibition.
The Boswell firm then attached to its revised petition its own
affidavit which discusses the trial judge's disqualification.  It
is also part of the file in this matter.
     The respondent now asks in his revised brief that we not
consider his affidavit.  But this belated request should not be the
basis for concluding that there is no proof of the circuit judge's
disqualification before this court.  I would look to the circuit
judge's affidavit as evidence of an initial disqualification on his
part.  I would also consider the petitioner's affidavit filed in
this matter with the revised petition.  We asked for a recitation
of material facts in our per curiam order and that is what the
affidavits provide.
     But regardless of the affidavits, the precise terms used in
the circuit judge's first uniform order support the fact that he is
disqualifying from all future Boswell firm cases.  When a trial
judge disqualifies from a case, it is common practice to transfer
that case to another trial judge.  See, e.g., Bolden v. State, 262
Ark. 718, 561 S.W.2d 281 (1978).  That is precisely what was done
in this case by the first uniform order.  The only difference here
is that the circuit judge disqualified from all future Boswell firm
cases instead of one particular case.
     Having said this, the petitioner's claim for a writ of
prohibition appears to have dubious validity because the Seventh
Judicial District Circuit Court has jurisdiction over cases
involving the Boswell firm in that judicial district regardless of
whether the individual circuit judge does.  Lee v. McNeil, 308 Ark.
114, 823 S.W.2d 837 (1992); Hobson v. Cummings, 259 Ark. 717, 536 S.W.2d 132 (1976).  Yet, in the past when a writ of prohibition
would not lie in a case, we have considered a writ of certiorari as
an alternative remedy.  See, e.g., Bates v. McNeil, 318 Ark. 764,
888 S.W.2d 642 (1994); Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992).  Certiorari is not appropriate to control a
judge's discretion on recusal matters.  Skokos v. Gray, 318 Ark.
571, 886 S.W.2d 618 (1994).  But it is a suitable remedy to correct
procedures erroneous on the face of the record and where no other
adequate remedy exists.  Foreman v. State, 317 Ark. 146, 875 S.W.2d 853 (1994); Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293
(1993).
     I would treat this petition as one for certiorari and address
the merits under our general superintending authority.  Ark. Const.
art. 7,  4.  The issue before us is not recusal but whether an
individual circuit judge lost jurisdiction to preside over future
cases where the Boswell Law Firm represented a party.  An appeal
does not represent an adequate remedy because cases involving the
Boswell firm are undoubtedly being scheduled in the respondent's
court.  I respectfully dissent.
     Roaf, J., joins.