*1 Carl Fax ADAMS STATE of Arkansas CR 79-189 601 S.W. 2d 881
Supreme Court of Arkansas Opinion delivered July *2 Buchanan, appellant. for Mickey Atty. Hartenstein, Asst. Ray Gen., by: Clark, Atty.
Steve Gen., appellee. for this requires this Justice, Special Ben, Core, interpreta- to the relating questions several decide
Court That Conduct. Code the application tion and Judicial the Delegates the House promulgated Code was 1972, was and August Association Bar American con- for standards proper to constitute Court by this declared done was This of Arkansas. State the judiciary the duct of Ark. dissenting), 255 Byrd (Justice order curiam by per con- since have (1974). We (Appendix) 422 2d S.W. 493 Ark. v. decisions, 263 Edmonson in two the Code sidered and grounds) on other (reversed (1978) 2d 617 S.W. 565 (1978) (revers- S.W. Gehl, Ark. Braswell grounds). other ed on pertinent Code the makes circumstance The Adams, charged Fax Carl Appellate, the that case is
this serious with two attorney information by prosecuting in a guilty, pleaded and the same felonies, arraigned nephew the attorney prosecuting wherein proceeding one nephew-uncle judge. presiding Judge did the Circuit and within Canon falls prescribed the procedure follow did he and neither disqualify any stage of at made was ever request No by Canon 3D. disqualify or that Appellant any objection was no Canon do so. his failure to stage as in criminal applicable Canon that holdWe cases, it is that civil as
well applies that stage of duly elected is a each circuit prosecuting no disqualify official, public by a either to be necessary disqualify failure himself, that trial representing by party attorney or judge must take the initiative disqualify or, in the alter- native, to comply with set out in Canon can, this Court initiative, on its own examine the record to notice compliance or noncompliance, and that failure to comply is reversible error. Accordingly, we reverse and re- mand this case with instructions that the Appellant be arraigned again on the charges, such proceedings and sub- sequent proceedings to be consistent opinion.
Canon provides in pertinent part follows: C. DISQUALIFICATION.
(1) A judge should disqualify himself in a in which his impartiality might reasonably questioned, be including but not limited to instances where:
[*] [*] * * (d) he or his spouse, or a person within the third degree of relationship either them, or the spouse of such a person:
# # # # (ii) is acting a lawyer in the proceeding; In our in Edmonson v. Farris, supra, which was rendered May 22, 1978, we announced the following caveat:
“In cases in arising the trial date, court after this we construe our rule to require the judge to note his dis- qualification any without by lawyer.” If a party represented is not by lawyer, then our statement would necessarily to the and party no such re- quest required would be him.
In Edmonsonv. supra, we noted the alternative to disqualification provided in Canon which reads: 3C(l)(d) disqualified by the terms of Canon A dis- withdrawing from the may, instead of If, disqualification. of his close on the record basis in- disclosure, lawyers, and parties on such based agree all participation, judge’s dependently immaterial or writing judge’s insubstantial, judge is no that his financial interest is in the may disqualified, participate longer by parties all agreement, signed proceeding. proceed- in the record of the lawyers, incorporated shall be ing. noted, any never at time re- previously appellant
As comply the trial quested 3D Appellant any objected never at time to his failure to do so. by attorney arraignment, an at the represented attorney hearing at the on his motion represented at- appellant nor his postconviction relief. Neither torney any request compliance with Canon 3C where, the Circuit hearing again, at that 3D different, relationship nephew-uncle still ex- his any objection appellant isted. Neither was attorney to failure to Canon 3C relief. postconviction Appellant motion for by a represented different on this but still *4 objection the failure of the appeal has been on the to judge trial at the comply to 3C objection made for the first time on his although is appeal judge presided to the failure of the circuit who Rule postconviction on the relief under motion for Procedure, Arkansas Rules of Criminal to Canon 3C. request compliance
We to and ob- regard these failures ject non-compliance being immaterial sense because initiative under judge Canon is that the should take the 3C 3C, if judge under elects to Canon also Canon 3D advantage procedure. take of the Canon 3D point commentary following Canon makes 3D designed therein out is the fact that the set lawyer will feel coerced party “minimize the chance that a agreement” into an that “the judge’s im- request material.” If requiring disqualify is then coercive requiring likewise an objection Thus, would be coercive. if a disqualify is not required then neither should an objection for failure disqualify required. If no required is then it necessarily follows that the point of failure to comply preserved objection. without an It then further follows when an eappeal lodged in this court under any appropriate rules providing therefor and this court finds from the record that there were circumstances requiring compliance with either Canon or Canon 3D that there so, was a failure to do then this court must notice sponte. same sua
The fact that the prosecuting attorney and circuit judge each is elected by the voters of judicial district does not alter the fact that the prosecuting attorney appears as at- torney for the state and that the state is an adversary party to the defendant in criminal cases. Thus we can find no reason to distinguish cases where the attorney client relationship comes into being by popular election from where it those private arises by employment.
All that we have said in- concerning taking of the itiative by the trial judge equal applies Canon 3C force as to Canon If disqualifies 3D. under Canon then, course, Canon never However, comes play. 3D into if a circumstance arises to which Canon is applicable, then must disqualify on his own initiative or must comp- ly with Canon on his own Farris, initiative. In v. Edmonson supra, we stated that this rule applied “in cases in arising date,” court after this meaning the date in case, May The record 1978. discloses that the arraignment involved case occurred October is, course, after the effective date and within caveat of Edmonson supra. *5 prior
The two decisions of this court construing Canon civil were cases. This is a criminal case. regard We that as immaterial. Since criminal cases ordinarly life involve liberty both, with civil ordinarily cases involving property and with life or liberty ordinarily being considered more civil to applicable if the rule is property, than precious cases. criminal to also it must a then fortiori effec- holding that this should be any objection If procedure, criminal of rule a new tively prescribes of rules prescribe authorized is this court nevertheless all any and “to respect with practice or pleading, as compiled of Act 470 in criminal cases.” proceedings 22-242 Annotated, Sections (1947) Statutes Arkansas Supplement, Pocket (1979 Cumulative 22-244 through 3). Volume Replacement a criminal proceedings required that
It not is commencing point of progressed have charge An is required. with Canon compliance before part initial of an arraignment, subsequent determines nevertheless judicial a critical and is guilt innocence or ascertaining for procedures by com- preceded and should be stage 3D. pliance we error on an this case reversing we are
While Steel, now Bobby The Honorable have been find Circuit Circuit deceased, the Ninth who served Judicial towish say that we are constrained years, we we rule under Judge Steel. of no criticism imply arraignment time this only new at reverse case. in criminal applied never been had hereby reversed a case must be It follows that again appellant be instructions remanded Degree in the First Battery the two charges arraigned consistent proceedings for further Arson and opinion.
Fogleman, C.J., dissents. Justice, dissenting part. A. Chief Fogleman, John upon relief was based petition post-conviction Appellant’s right afforded the i.e., appellant grounds, two plea entered he when at his have the elements advised that he was not guilty and *6 offense of first degree battery and arson. On points, these he introduced a transcript of the proceedings during which he was arraigned, entered a plea of guilty and was sentenced. He has never in the circuit court or this court contended that his conviction should be set aside because of disqualification presided who his and sentencing. The record clearly reflects a knowing and intelligent waiver of the right counsel, it if ever possible for one charged with a felony to waive (and, counsel course, is). It well may is necessary to raise the question poten- tial disqualification aof trial judge under the circumstances here, prevailing in order to question raisejhe on appeal, but this is a post-conviction proceeding in a case in which no appeal was taken. Nothing in Rule permits this kind of post-conviction collateral attack. 37.1, Rule Rules of Criminal Procedure, states the grounds for post-conviction relief, they are: (cid:127)
(a) that the sentence was imposed in violation of the Constitution and laws of the United state; States or this (b) that the court imposing the sentence was without jurisdiction so; to do
(c) that the sentence was in excess of the maximum by law; authorized
(d) that the sentence is
subject
otherwise
at-
to collateral
tack;
We have never held that disqualification of a judge in a
case deprives the court of jurisdiction or
renders
judgment
entered while he"Was:presiding subject to
attack,
collateral
unless the judge'himself
is interested in the “event of the
cause.” Ladd v. Stubblefield,
Ark.
\J\ there was indicated in that Nothing trial. new jurisdiction. any want of judgment void *7 of judgment that, law held common generally It is ALR voidable, Annot. not void. 5 only disqualified a (I960). (1920), ALR to, and a sub- related closely are proceedings Rule 37 the decided majority A for, corpus. habeas stitute not affect does disqualification have held irregularity an error in the nature jurisdiction, but release ground remedial, thus otherwise (1940). 124 ALR Annot. corpus. See habeas renders a judge indeed, disqualification If, obviously void, has majority him entered judgment any judgment uphold can held, how this court I do not see during case Bobby Steel in by Judge entered in the absence attorney, prosecuting nephew time his proper diligence is lack of petitioner’s A waiver. express entitled to he is whther determining for consideration jurisdiction had no relief, trial court if the post-conviction post- make valid nothing can judgment, render a by the not even be barred attack would collateral conviction judgment is A void petitions. three-year on such limitations repaired. retrospectively it cannot be judgment void disqualified Steel Don I would hold ques- relief because post-conviction petition hear I would remand appeal. properly presented tion was appropriate the trial court for judge. another