Parham v. Church Mutual Insurance Company

Doyle PARHAM, Christopher Simmons, and
Richard Carr, as Trustees on Behalf of Bethel
Missionary Baptist Church v. CHURCH MUTUAL
INSURANCE COMPANY

CA 95-197                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                             En Banc
      Opinion on Rehearing Setting Aside Original Opinion 
                     delivered May 8, 1996


Judges -- recusal -- all judges on appellate court recused for 
     rehearing -- original opinion set aside. -- Where, upon
     appellee's filing of a petition for rehearing, the judge who
     authored the original opinion in the case realized that he was
     disqualified and recused, and where three other judges
     assigned to participate in the rehearing recused, the
     appellate court concluded that the remaining judges on the
     court should also disqualify, that the opinion previously
     delivered in the case should be vacated, and that the
     appellate court should ask the chief justice of the supreme
     court to assign three special judges to hear the case anew.


     Appeal from Pulaski Circuit Court, Fifth Division; Morris W.
Thompson, Judge; original opinion set aside.
     Tony Price, for appellants.
     Richard Watts, for appellee.

     John E. Jennings, Chief Judge.*ADVREP*CA2*
                              EN BANC



                                        CA 95-197                        
                                                      
DOYLE PARHAM, CHRISTOPHER SIMMONS,                      May 8, 1996
AND RICHARD CARR, AS TRUSTEES ON 
BEHALF OF BETHEL MISSIONARY
BAPTIST CHURCH                       AN APPEAL FROM PULASKI COUNTY
          APPELLANTS                 CIRCUIT COURT, FIFTH DIVISION    

                                   
VS.
                                     
CHURCH MUTUAL INSURANCE              OPINION ON REHEARING SETTING
COMPANY                              ASIDE ORIGINAL OPINION
          APPELLEE                   






                     John E. Jennings, Chief Judge.



     On March 27, 1996, we handed down an opinion in this case
which reversed the decision of the circuit court.  It was a panel
decision with Judge Neal writing the opinion.  Judges Mayfield and
Jennings were also on the panel.  See Parham v. Church Mutual Ins.
Co., 53 Ark. App. 68, ____ S.W.2d ____ (1996).  
     On April 10, 1996, Church Mutual filed a petition for
rehearing en banc.  Under Ark. Code Ann.  16-12-113 (Repl. 1994)
and the corresponding internal rules of this court, an additional
three-judge panel (division) was assigned to participate in the
rehearing.  The additional panel was composed of Judges Cooper,
Stroud, and Griffen.  
     Judge Griffen promptly recused and at this point Judge Neal
realized he was disqualified and recused.
     On April 22, Church Mutual filed a "Motion to Supplement
Petition for Rehearing En Banc" asking that Judge Neal recuse on
the basis that his wife is presently being represented in civil
litigation by the firm of Wright, Lindsay and Jennings, which also
represented the appellants in the case at bar.  By the time of the
filing of the "Motion to Supplement," Judge Neal had already
recused.  
     Under rules of this court Judges Pittman and Rogers were
designated to take the places of Judges Neal and Griffen in
considering the petition for rehearing.  Both Judges Pittman and
Rogers have recused for unrelated reasons.
     We have given considerable thought to what our proper course
of action should be in light of the decision of the supreme court
in Johnson Timber Corp. v. Sturdivant, 295 Ark. 663-B, 758 S.W.2d 415 (1988), which involved a somewhat similar situation.  In
Sturdivant, the justice who authored the original opinion later
determined that he should have disqualified, even though his
failure to do so was inadvertent.  Although there are differences
between Sturdivant and the case at bar, including the fact that the
supreme court sits en banc in every case while we function
primarily in three-judge divisions, we have concluded that the
remaining judges on the court should also disqualify, that the
opinion previously delivered in this case should be vacated, and
that we should ask the chief justice of the supreme court to assign
three special judges to hear the case anew.  As the supreme court
noted in Sturdivant this course of action is not absolutely
required by United States Supreme Court decisions and furthermore
is a decision that rests with each individual judge.  Judges
Mayfield and Jennings were in the original panel that decided the
case.  While the remaining three judges available to consider the
petition for rehearing, Judges Cooper, Stroud, and Robbins, did not
participate in the original decision, they did participate in the
approval of the opinion and the vote on publication.
     We sincerely regret the delay that this course of action will
entail but believe that this is our best choice under the circum-
stances.
     Our previous decision is set aside.
     MAYFIELD, COOPER, STROUD, and ROBBINS, JJ., agree.
     NEAL, GRIFFEN, PITTMAN, and ROGERS, JJ., not participating.