Dennis Thompson v. Judge David Guthrie
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SUPREME COURT OF ARKANSAS
No.
DENNIS THOMPSON,
07-1018
Opinion Delivered
PETITIONER,
VS.
JUDGE DAVID GUTHRIE,
RESPONDENT,
May 15, 2008
PETITION FOR
MANDAMUS OR
PROHIBITION
WRIT
WRIT
OF
OF
DENIED WITHOUT PREJUDICE.
PAUL E. DANIELSON, Associate Justice
Petitioner Dennis Thompson petitions this court for a writ of mandamus or a writ of
prohibition directed to respondent Judge David Guthrie.1 In it, Thompson asks this court to
compel the circuit court to “either record chambers conferences and bench conferences or
not hold any unrecorded chambers conferences or bench conferences” without his written
waiver.2 We deny the petitions without prejudice.
On September 18, 2007, Thompson filed a motion for summary disposition on issue
of temporary relief and motion in limine. Within the motion, Thompson requested “that all
in chambers conferences be on the record.” Attached to the motion and incorporated by
1
A writ of prohibition lies against the circuit court and not against an individual judge.
See Arkansas Dep’t of Human Servs. v. Collier; 351 Ark. 506, 95 S.W.3d 772 (2003). We will
treat the prohibition petition as if it were filed against the Union County Circuit Court.
2
We note that Admin. Order No. 4, on which Thompson relies for his argument to
this court, does not require a written waiver, but a waiver “on the record.” Admin. Order
No. 4.
reference was a letter of the same date, in which Thompson stated “if the Court decides to
have an in chambers conference, I request that, in accordance with Ark. Sup. Ct. Admin.
Order No. 4, that it be fully and completely made part of the record, with the court reporter
present.” A hearing was held that day, and, three days later, Judge Guthrie entered an order
in the matter, finding that Thompson’s motions were “untimely, unnecessary and now
moot.” In addition, the circuit court made the following finding:
7. Plaintiff’s request that in-chambers conferences be on the record is
denied. The Court has a long established administrative practice of conferring
in chambers, when necessary, informally and jointly with counsel prior to court
proceedings. The suggested procedure would unduly burden the court
reporter, delay the proceedings, and impugn the integrity of opposing counsel
and the Court. Existing procedures are sufficient to protect and develop the
record should such conferences generate a need to do so.
As a result of the circuit court’s order, Thompson filed the instant petition with this court.
The State, on behalf of Judge Guthrie, responded, and Thompson subsequently replied,
moving to strike Judge Guthrie’s response. We ordered the petition to be submitted as a case
and passed on Thompson’s motion to strike until the case was submitted.
Briefing was commenced and during that time, Judge Guthrie moved to supplement
the record with an amended order he entered on December 13, 2007, and we granted the
motion. In the circuit court’s order, Judge Guthrie observed that Thompson’s petition to this
court caused the court to recognize the need to amend its order. The circuit court did so and
found, in pertinent part:
2.
This Court will comply with all orders of the Supreme Court,
including Administrative Order No. 4. Certainty of compliance can be assured
simply because there will be no conference with Mr. Plouffe [Thompson’s
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counsel] in chambers. In the case of Ray v. Ray, Union County Circuit Court
No. CV-2005-61-6, and Court of Appeals No. CA06-1424, decided
December 5, 2007, counsel initiated a conference in chambers without notice
on a non-court day when the court reporter was in Texas. Mr. Plouffe
subsequently misrepresented the substance and circumstances of that conference
in appellate pleadings, alleging in part “. . . the trial court’s failure to record the
chambers conference. . .” (Statement of Case 5, Appellant’s Brief). The Court
has not had since, and will not have in the future, a conference in chambers
with Mr. Plouffe. Furthermore, Mr. Plouffe has not ever requested and been
denied a recorded conference in chambers and the issue was not discussed at
the September 18 hearing. Plaintiff’s request is theoretical and his efforts to
compel are merely an academic exercise.
3.
The Court hereby amends its order of September 21, 2007, by
not ruling on counsel’s request to record conferences in chambers as such a
ruling without facts in controversy would amount to an advisory opinion.
As an initial matter, we hold that Thompson’s motion to strike the response is moot,
as briefs were timely filed by both parties. We turn, then, to the instant petition.
At issue is whether the circuit court’s actions require a writ of mandamus or
prohibition from this court.
Thompson asks this court to either order Judge Guthrie to
record all chambers and bench conferences by way of a writ of mandamus or to prohibit
Judge Guthrie, by way of a writ of prohibition, from holding any bench or chambers
conferences unless they are recorded.3 He contends that he has no other adequate remedy
and that, pursuant to Administrative Order No. 4 of the Arkansas Supreme Court, Judge
Guthrie has a mandatory duty to record all conferences. Judge Guthrie responds that because
he amended the original order that served as the basis for Thompson’s request for
extraordinary relief, and because the amended order makes no ruling on the recording of
3
We note that neither Thompson’s requests by motion and letter to the circuit court,
nor either of the circuit court’s orders, refers to bench conferences.
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chambers conferences, Thompson’s petitions are moot. In the alternative, Judge Guthrie
states that neither requested writ is warranted as a matter of law.
The problem in the instant case is that Thompson has failed to point to any specific
proceeding held by the circuit court of which the circuit court denied recording.
Administrative Order No. 4 of the Arkansas Supreme Court provides:
Unless waived on the record by the parties, it shall be the duty of any
circuit court to require that a verbatim record be made of all proceedings
pertaining to any contested matter before it.
Admin. Order No. 4 (2007). We have held that we will strictly construe and apply Admin.
Order No. 4. See Williams v. State, 362 Ark. 416, 208 S.W.3d 761 (2005). For that reason,
the Order is mandatory and is not discretionary; indeed, we have remanded matters in which
a contested issue was not recorded, directed that certain motions must be recorded, and
reminded the bench and bar of the requirement of Admin. Order No. 4. See, e.g., Dickinson
v. State, 367 Ark. 102, 238 S.W.3d 125 (2006) (underscoring the provisions of Admin. Order
No. 4); Williams v. State, supra (holding that it was the circuit court’s duty to require that a
verbatim record be made of defense counsel’s particular challenge to a videotape and of the
circuit court’s review of it); George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004) (remanding
for a hearing recorded verbatim on defendant’s pretrial suppression motion); Robinson v. State,
353 Ark. 372, 108 S.W.3d 622 (2003) (requiring that all motions for directed verdict be
conducted on the record at the times such motions are mandated); Bradford v. State, 351 Ark.
394, 94 S.W.3d 904 (2003) (emphasizing once more that Admin. Order No. 4 requires that
a verbatim record of all proceedings pertaining to any contested matter be made); Allen v.
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Burton, 311 Ark. 253, 843 S.W.2d 821 (1992) (observing, where a verbatim record of
appellant’s objection to a jury instruction was not made, that this court is put at a considerable
disadvantage in reviewing points pertaining to unrecorded hearings, when a verbatim record
is not before us).
In the instant matter, Thompson’s request of the circuit court was made regarding any
future in-chambers conference to be held. For this reason, neither extraordinary writ
requested will lie. First, a writ of mandamus is issued by this court only to compel an official
or judge to take some action. See Weaver v. Simes, 365 Ark. 289, 229 S.W.3d 15 (2006).
When requesting a writ of mandamus, a petitioner must show a clear and certain right to the
relief sought and the absence of any other adequate remedy. See id. Mandamus is never
granted in anticipation of an omission of a duty, but only after actual default. See Ex parte
Cutting, 94 U.S. 14 (1876). See also 52 Am. Jur. 2d Mandamus § 60 (2008).
Here, Thompson has not shown a clear and certain right to the relief he seeks where
there has been no actual default by the circuit court. While the circuit court did “deny”
Thompson’s request in its original order, the record does not reveal that any in-chambers
conference was held without being recorded. Thus, we cannot say that the circuit court’s
denial was ever put into effect or that there was an actual default by the circuit court.
Moreover, the circuit court entered an amended order in which it specifically stated that it
was “not ruling on counsel’s request to record conferences in chambers[.]” Accordingly, no
actual default has been made by the circuit court that would permit mandamus relief, and
Thompson has made no showing of a clear and certain right to relief. We, therefore, deny
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the petition for writ of mandamus without prejudice.
In addition, we hold that a writ of prohibition is also inappropriate, as the writ will
only lie when a circuit court is wholly without jurisdiction. See Smith v. Fox, 358 Ark. 388,
193 S.W.3d 238 (2004). Here, the circuit court clearly had jurisdiction to hear the matter
before it.
In sum, no action has been taken by the circuit court, which could be resolved by the
issuance of an extraordinary writ. Were we, at this juncture, to issue one of the writs
requested, it would be premature, and we will not issue anticipatory writs.4 For these reasons,
we deny the writs requested without prejudice.
Writs denied without prejudice.
GLAZE, BROWN, and IMBER, JJ., dissent.
GLAZE, J., dissenting. This court took this case as a regular submission because its
focus involves Administrative Order No. 4, which provides that, “unless waived on the
record by the parties, it shall be the duty of any circuit court to require that a verbatim record
be made of all proceedings pertaining to any contested matter before it.”
Our court promulgated the order in 1991 because of concerns that some trial courts
had local rules that conflicted with the Arkansas Rules of Civil Procedure and that affected
4
Because no action has been taken by the circuit court requiring the issuance of an
extraordinary writ, we render no opinion as to whether in-chambers conferences fall within
the requirement of Admin. Order No. 4 . We do, however, wish to emphasize the need for
a complete and accurate record and take this opportunity to again remind the bench and bar
of the language in Admin. Order No. 4, which requires “a verbatim record be made of all
proceedings pertaining to any contested matter before it.” (Emphasis added.)
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the rights of litigants. To become aware of these rules, a litigant or counsel might have had
to wade through many pages of confusing material. See Publisher’s Notes and the Supreme
Court’s per curiam delivered on December 21, 1987, which abolished local rules effective
March 14, 1988.
In the instant case, as alluded to in the majority opinion, the trial court
made the following ruling:
Plaintiff’s request that in-chambers conferences be on the record is denied.
The court has a long established administrative practice of conferring in
chambers, when necessary, informally and jointly with counsel prior to court
proceedings. The suggested procedure would unduly burden the court
reporter, delay the proceedings, and impugn the integrity of opposing counsel
and the Court. Existing procedures are sufficient to protect and develop the
record should such conferences generate a need to do so.
Clearly, the trial court relied on its own long-established administrative rule or policy
when it denied counsel’s request pursuant to Administrative Order No. 4, rather than
following the language set out in the order. The trial court later amended its order of denial,
stating it would comply with Administrative Order No. 4, but added, “certainty of
compliance can be asserted because there will be no conference with counsel in chambers.
Furthermore, the trial court has not had since, and will not have in the future, a conference
in chambers with counsel.” The trial court’s amended order appears to be an over-broad
construction of Administrative Order No. 4 and seems intended to notify counsel that any
requests for an in camera or in-chambers hearing would be denied, even if both sides were
willing to waive having a verbatim record. Here, the trial court had the duty under Order
No. 4 to provide a record, and it was not Thompson’s burden to establish the need for a
record.
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In reading the record, it becomes clear that the trial court and counsel had had a similar
problem arising out of another case where counsel allegedly asked the trial court for a record
to be made, but counsel’s request was refused. The trial court emphatically denied such a
charge. Though hard feelings between the trial court and counsel might reasonably be
expected to arise in these circumstances, the trial court is still required to follow court orders,
rules, and the law. On the other hand, if counsel violates the court’s orders or the canons of
professional conduct, there are sanctions that can be imposed. This, too, is yet another reason
why a record must be taken in any or all contested matters unless waived by all parties.
Simply defined, a contested hearing is one in which at least one of the parties has objections
regarding one or more matters before the court. See Black’s Law Dictionary 738 (8th ed. 2004).
In sum, under the plain language of Administrative Order No. 4, the trial court had
the duty to provide a verbatim record to be made in all proceedings pertaining to any
contested matter before it. Again, Administrative Order No. 4 places the duty on the circuit
court to provide a record when a contested matter arises in any proceedings. I strongly
disagree with the majority’s statement that Thompson did not show a clear and certain right
to the relief he sought, which is a prerequisite to a writ of mandamus. In this case, the trial
court refused to discharge the duty imposed by Administrative Order No. 4. Therefore,
under the circumstances, I agree that mandamus does apply and should be granted.
IMBER, J., joins this dissent.
IMBER, J., dissenting. I strongly disagree with the majority’s analysis. The actions of
the circuit court clearly violated Administrative Order No. 4. This court should issue a writ
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of mandamus directing the circuit court to fully comply with the requirements of
Administrative Order No. 4.
The majority concludes that Thompson has failed to point to any specific proceeding
that the circuit court refused to record. I cannot agree. A chronology of the events and
filings in the underlying case is helpful in understanding the nature of Thompson’s request.
Thompson’s case against Barbara and Ray Burbank originated on July 21, 2005, with
Thompson’s filing of a “Petition for Equitable Relief & Damages.”
In his petition,
Thompson averred that the property being purchased by him from the Burbanks was
vandalized, and that various insurance checks were thus issued to him, at least one of which
required a signature by the Burbanks. The Burbanks refused to provide the necessary
signatures, thereby preventing Thompson from acquiring funds for the repair of the property.
Because the insurance company indicated that the settlement would expire by August 20,
2005, Thompson asked the court to schedule an immediate hearing for mandatory injunctive
relief. He also requested damages for the delay and an award of attorneys’ fees and costs.
The record reflects that a hearing was eventually scheduled and then cancelled. A
letter from Thompson’s attorney to the circuit court dated January 25, 2007, indicated the
attorneys’ mutual agreement that the “temporary issue” could be submitted and decided on
the briefs. On April 3, 2007, Thompson filed a “Brief for Interim Equitable Relief,”
requesting an order directing the Burbanks to immediately provide the necessary signatures.
The brief stated that Thompson had proposed four different contractors to the Burbanks, each
of which they rejected. Apparently, the Burbanks did not file a brief. The circuit court did
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not provide a ruling.
On April 17, 2007, counsel for the Burbanks sent a letter to the circuit court,
requesting that a hearing be scheduled. A hearing was set for September 18, 2007. However,
on that date, counsel for the Burbanks sent another letter to the circuit court, stating that his
clients “need[] an opportunity to inspect the property and cannot supply a contractor’s
proposal absent that opportunity to inspect and get an estimate on the damages.” He
requested that the issues “be dealt with at a future scheduling.”5 In response, Thompson filed
a “Motion for Summary Disposition on Issue of Temporary Relief & Motion in Limine.”
An attached letter stated that Thompson opposed the Burbanks’ request for a continuance.
He requested summary disposition in the form of an order directing the Burbanks to
immediately release the insurance funds, as well as a ruling in limine preventing the Burbanks
from presenting any evidence on the “temporary issue,” due to their previous failure to
submit any brief or counterproposal.
This motion for summary disposition and the attached letter contained Thompson’s
requests for the recording of in-chambers conferences, as quoted in the majority opinion.
Although the motion itself requested that “all in chambers conferences” be on the record, the
incorporated letter referenced a specific conference. After stating the basis for the motion for
summary disposition, the letter concluded as follows: “Further, if the Court decides to have
5
The circuit court’s amended order, dated December 13, 2007, states that a hearing
was held on September 18; however, a record of that hearing is not before us. It is not clear
whether the hearing was continued, held but not recorded, or recorded, with the transcript
not a part of the record before us.
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an in chambers conference, I request that, in accordance with Ark. Sup. Ct. Admin. Order
No. 4, that it be fully and completely made part of the record, with the court reporter
present.” In my view, Thompson was requesting the recording of any conference or hearing
on the motion for summary disposition. I fail to see how this request could have been any more
specific. The case between Thompson and the Burbanks was clearly a contested matter, and
a hearing on the motion for summary disposition would clearly have been a proceeding.
Such a conference would have to be recorded pursuant to Administrative Order No. 4.
The circuit court nonetheless denied Thompson’s request, in its September 21, 2007,
order. The language of the denial reflects the circuit court’s misinterpretation of the
administrative order.
While the circuit court’s order refers to a “long established
administrative practice” of holding unrecorded in-chambers conferences, Administrative
Order No. 4 requires that the circuit court record all proceedings pertaining to any contested
matter, unless waived on the record by the parties. Indeed, it is the duty of the circuit court
to require this verbatim record without regard to whether such proceedings occur in
chambers or in the courtroom. Moreover, the circuit court’s amended order, entered after
Thompson’s petition was filed with this court, also indicates a similar misinterpretation of the
administrative order. In an effort to render Thompson’s petition moot, the circuit court
refused to provide a ruling on Thompson’s request to make a record. While assuring
compliance with Administrative Order No. 4, the circuit court stated that it would hold no
more in-chambers conferences with Thompson’s counsel. Such a ruling not only foreclosed
Thompson’s right to waive a verbatim record of proceedings, but it also imposed a penalty
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on Thompson as a result of his counsel’s request for a verbatim record of any conference on
the pending motion for summary disposition. For these reasons, I believe that the circuit
court’s amended order also violated Administrative Order No. 4.
Furthermore, under the administrative order, Thompson was not required to request
that all proceedings be conducted on the record; rather, Administrative Order No. 4 provides
that proceedings pertaining to contested matters must always be recorded, unless waived by
the parties. Therefore, the parties, and not the court, have the discretion to forego making
a record. Here, both orders entered by the circuit court suggest a belief that the court is free
to decide which proceedings pertaining to a contested matter need to be recorded. This
belief is contrary to the plain language of Administrative Order No. 4.
Our case law is clear. We have previously put the bench and bar on notice that we
will strictly construe and apply Administrative Order No. 4. Robinson v. State, 353 Ark. 372,
108 S.W.3d 622 (2003). “Under Administrative Order No. 4, unless the parties agree
otherwise, it [is] the duty of the circuit court to require a verbatim record in any contested
proceeding before it.” Id. at 378, 108 S.W.3d at 625. The circuit court in the instant case
failed to comply with this duty, and I would issue a writ of mandamus directing it to do so.
GLAZE AND BROWN, JJ., join this opinion.
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