Burris v. Britt

663 S.W.2d 715, 281 Ark. 225, 1984 Ark. LEXIS 1520

• Court: Supreme Court of Arkansas
• Decided: January 23, 1984
• Docket: 83-219
• Status: Published

Opinions

Robert H. Dudley, Justice.

Petitioner, Leonard Burris, is the administrator of the estate of Margaret Ruth Scudder, deceased, and is the plaintiff in a wrongful death case now pending in the Circuit Court of Jackson County. The regular judge of the Circuit Court of Jackson County, Andrew G. Ponder, recused himself from hearing the case because of his personal relationship with one of the litigants. Shortly afterwards, Albert Graves, the regular circuit judge of another circuit was assigned by the Chief Justice to this case as a judge on exchange under the authority of Ark. Stat. Ann. § 22-142 (Supp. 1983). Prior to the trial, Judge Graves’ term of office ended and his appointment was terminated. The Chief Justice then assigned Henry Britt, a retired circuit judge and the respondent in this petition, to try the case as a circuit judge on recall and assignment pursuant to Ark. Stat. Ann. § 22-910 (Supp. 1983). Petitioner has filed a suggestion of disqualification on the ground that respondent is not a circuit judge as defined by the Constitution of Arkansas. Respondent has refused to disqualify himself from the assignment. We hold the respondent’s exercise of jurisdiction of the office of circuit j udge over petitioner is invalid and grant the writ of mandamus. Jurisdiction is in the Court pursuant to Rules 29(1 )(c) and (f).

Procedurally, this is a direct appeal questioning the qualifications of respondent to exercise jurisdiction over petitioner. It is not a collateral attack upon the exercise of jurisdiction. See, Pope v. Pope, 239 Ark. 352, 389 S.W.2d 425 (1965).

Substantively, the constitution specifically provides two modes for replacing the regular circuit judge when that judge recuses from the trial of a case. See Ark. Const. Art. 7, §§21 and 22. Since the modes are expressly set out they are exclusive of all other methods of temporarily replacing a circuit judge and a statute providing a different method is unconstitutional. State v. Green, 206 Ark. 361, 175 S.W.2d 575 (1943). The issue is whether respondent is serving under the authority of either of the constitutional provisions.

Ark. Const. Art. 7, § 21, the special judge section, provides that if the regular circuit judge becomes disqualified the regular practicing attorneys in attendance at court may elect a special judge to preside. See also, Rule 17, Uniform Rules of Circuit and Chancery Courts. Respondent was not elected as a special j udge and does not qualify under the aegis of this section.

Ark. Const. Art. 7, § 22, the judge on exchange section, provides, “The judges of the circuit courts may temporarily exchange circuits or hold courts for each other under such regulations as may be prescribed by law.” Ark. Const. Art. 7 & 17, with precise stricture, defines the term of office of the circuit courts: “The judges of the circuit court shall be elected by the qualified electors of the several circuits, and shall hold their offices for the term of four years.” Respondent’s term of office has expired. He no longer holds the office of judge of circuit court. He is a retired judge "and does not qualify under the authority of this section of the constitution.

The General Assembly does not have the power to enlarge the term of office of a circuit judge, State ex rel. Smith v. Askew, 48 Ark. 82, 2 S.W. 349 (1886). The statute at issue, Ark. Stat. Ann. § 22-910 (Supp. 1983), providing for the recall and assignment of a retired judge, cannot enlarge the past term of office which was held by respondent.

A writ of mandamus is issued ordering respondent to disqualify from presiding as circuit judge over the trial.

Purtle and Hays, JJ., dissent. Adkisson, C.J., not participating.