James Ken Anderson v. Honorable James Moody, Judge

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 16, 2004

JAMES KEN ANDERSON

Petitioner

v.

HONORABLE JAMES MOODY, JUDGE

Respondent

04-620

PRO SE SUBSEQUENT PETITION FOR WRIT OF MANDAMUS [CIRCUIT COURT OF PULASKI COUNTY, NO. CV 2004-3325]

SUBSEQUENT PETITION DENIED

Per Curiam

On June 2, 2004, James Ken Anderson filed a petition for writ of mandamus in this court, contending that the Honorable James Moody, Circuit Judge, had failed to act in a timely manner on an amended pro se petition for declaratory judgment filed in his court. Petitioner asserted that he filed the original petition for declaratory judgment and was granted leave to proceed in forma pauperis, but Judge Moody "neglected, failed or refused to issue properly addressed summonses for the respondents because no addresses were provided in the original petition." While petitioner did not specifically state that he sought a writ of mandamus to compel Judge Moody to issue the summonses, it appeared that it was the failure of the court to do so that was the crux of the mandamus petition.

In his response to the mandamus petition, Judge Moody correctly noted that it was the duty of the circuit clerk pursuant to Ark. R. Civ. P. 4(a) to issue summonses, not the judge to whom the case was assigned. Mandamus is an appropriate remedy only when a public officer is called upon to do a plain and specific duty, which is required by law. See Rothbaum v. Arkansas Local Police, 346 Ark. 171, 55 S.W.3d 760 (2001). Moreover, respondent appended to his response to themandamus action a copy of summonses issued by the circuit clerk's office to the parties to the petition for declaratory judgment; thus, there had been no prejudice to petitioner with respect to the issuance of summonses in the matter. We found no ground for a writ of mandamus and denied the petition. Anderson v. Moody, 04-620 (Ark. June 24, 2004) (per curiam).

In the decision, we further said that even if the mandamus petition were to be considered as a simple request that a writ be issued to compel the respondent to act on the petition for declaratory judgment, petitioner had not shown that the respondent had failed to perform his duty to act on the pleading in a timely fashion. The amended petition for declaratory judgment was filed on May 12, 2004, and the summonses were issued on May 20, 2004. Petitioner filed the mandamus petition here on June 2, 2004, which was before the parties to the petition for declaratory judgment had exhausted the twenty days from the date of the summonses afforded them by Ark. R. Civ. P. 12(a)(1) to answer the pleading. Accordingly, the petition for writ of mandamus was at best premature.

Now before us is a second petition for writ of mandamus filed July 12, 2004, in which the petitioner again contends that Judge Moody has failed to act on the petition for declaratory judgment that was the subject of the original mandamus action. In his response to the second mandamus petition, Judge Moody adopts the response to the original mandamus petition and asks that the subsequent mandamus petition also be denied.

Because petitioner filed the instant petition for writ of mandamus approximately four weeks after the date for the parties to answer the summonses issued, the mandamus petition is denied. We have consistently recognized that the independence of the bench in our judicial system requires that the trial judge control his or her docket and the disposition of matters filed. See Eason v. Erwin, 300 Ark. 384, 781 S.W.2d 1 (1989). It cannot be said that the delay in action on the petition for declaratory judgment in this case is unreasonable.

Subsequent petition denied.