*1 390 nor of shall such provi-
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1983);
Newton,
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See
306
McMillan v.
v.
Mаson
(Fla. 1970);
v.
Glaze, SERVICES, HUMAN ARKANSAS DEPARTMENT OF v. Howard A Services Family Division of Children TEMPLETON, Judge, Craighead Arkansas County, Probate
Arkansas Human A Division Department v. Tom and Family Children Services Arkansas Judge, County, Benton Circuit/Chancery & 89-97 89-102 Court of Arkansas
Supreme delivered Opinion April *2 Debby Nye, Counsеl, General and S. Whittington Thetford Brown, Counsel, General Deputy for petitioners. Clark, Gen.,
Steve Att’y by: Gen., Tom Gay, Deputy Att’y for respondents. Glaze, Petitioner, Justice.
Tom the Arkansas Department of Human Division of Children Family Services (hereafter DHS), this requests court for writs of mandamus to compel respondents, Probate Judges Howard Templeton Tom to hear certain in their pending respective courts. In support its DHS еach requests, asserts judge has appointed special master to hear matters in violation Rule 53 of the Arkansas Rules of Civil Procedure and the specific directives of this court as set out in Hutton Sаvage, S.W.2d 394 (1989). Because filed both actions here DHS involve the same arising issues from similar legal circumstances, we consolidate the actions for of this purposes court’s review and decision writing.
We first nоte that DHS requested wrong remedy in its A petitions. writ does mandamus not lie to control the
392 Nelson, State v. or discretion of a trial court tribunal. However, the lower court’s 33 where (1969). 438 S.W.2d carve we can jurisdiction, in еxcess of order is entered without or one for and treat the through technicality application 728, S.W.2d Wasson Dodge, certiorari. Roberts, 242 Ark. see First Bank v. also Nat’l when there settled rule The unless granted will not be writ certiorari remedy appeal, jurisdiction, by an excess in its jurisdiction, there was want Nelson, Ark. at S.W.2d at the court State v. below. must jurisdiction in excess of jurisdiction 38. That want act Id. Such are the situations on thе face of the record. apparent us. in the two matters before pending decision, the that the court ruled In our recent Hutton *3 of case was in excess of juvenile court’s use a master in a рrobate and, so, to a doing any its in we held that reference jurisdiction, rule. master the and not the under Rule should be exception courts holding We reached a similar with to circuit in respect State, 380, 769 v. S.W.2d 402 (1989). Aсtually, Collins he had ruling concerning the use masters reiterated what of Brown, Ark. S.W.2d 297 already said in Gipson 218-220, Nelson, at See also (1988). State S.W.2d at 39-40. us, acting
In one under Judge of the cases before Templeton, 53, case, a a juvenile Rule master to hear appointed explaining that he was to the Juvenile hearing by unable conduct required case, Code “due and conflicts.” In the second scheduling other 53, acting Rule entered similar but Judge pursuant different orders that a master to hear four separate appointed juvenile orders he was Judge explained cases. Keith his that master, who “unavailable” and thаt the had func- previously juvenile tioned as for was familiar with County, master Benton the facts cases. DHS history juvenile and of the four previous described, that, judge contends under the circumstances neither and hаd masters authority appoint appointments demonstrate the continued use of masters for illegal special We cases. agree. juvenile system
Some confusion was to be after a exрected courts, had been county under the of the which operated auspices was ruled unconstitutional. functioning nearly years, no or Juvenile matters are heard courts their longer by county masters, full-fledged referees and but rather are to be decided by — courts of over full-time general jurisdiction presided an event long that was overdue.
These courts general jurisdiction, of which are now empow- matters, ered to decide regulated by subject rules set forth in the Arkansas Rules of Civil applicable Procedure, to, including, (B) but not limited Rule 53. Section this rule provides that the “reference to a mastеr shall specifically be the and not the exception rule” in matters except account and difficult “a reference shall damages, computation be made only showing that some conditiоn upon exceptional it.” requires Certainly a statement of simple unavailability conflict the trial is not a judge showing exceptional conditions.
If a trial congested court has problems dockеts scheduling, conflicts in administration prompt proper justice it, warrant assignment of temporary judges may had pursuant Or, to Ark. Code Ann. 16-10-101 when § temporary replacement judge necessary, such procеdure provided under Ark. Const. art. 21 and 22. §§ Wessell Bros. Foundation Co. v. Drilling Crossett Pub. School Dist. No. S.W.2d 99 See also Ark. R. Civ. P. Admin. Order 1. Number
Since jurisdiction courts with juvenile actions now may avail themselves of the laws that have been applicable relied generally upon by general jurisdiction courts' to avoid delays dockets, in trying cases on their the employment part- time masters for this should A crowded purpose unnecessary. or congested docket has never been determined a valid purpose for the 53; of a appointment master under nor ARCP Rule master he or appropriate because she is more familiar with the case or because the judge is Clearly, Judge unavailable. Temple- Judge ton’s and Keith’s juvenile masters in the appointments in pending their in respective courts were unauthorized and Thereforе, excess jurisdiction. of their we grant writs of certiorari quashing judges’ orders that juvenile masters appointed well as those orders ensuing from such appointments. think, doubts that should, we resolve today
Our decision it аffected the Hutton decision as lingered seem to have since the Clearly, attempt pretense use in juvenile any of masters cases. to hear of masters employment Rule 53 continue the use is now actions, the past, as has been the situation in juvenile juvenile positions not all Although judgeship to the law. contrary moment, we that most our are at the are confident in operation challengе responsibility meeting trial as matters on the deciding juvenile par matters same hearing issues. While a few concerning monetary problems property resolved remain to be in may implementing questions struсture, (or the use more hopefully, state’s new court trial courts in non-use) by of masters or referees appropriately been laid to rest this court’s decision such matters has in and the we hand down today. Hutton one J., Hays, J., concurs.
Purtle, dissents. Hays, Justice, I views concurring. my on expressed Steele 29 8 Savage, the use of masters in a Hutton v. dissenting opinion 256, 769 was a of one in that S.W.2d 394 I minority and since the view was I saw no neеd to position majority decisive State, restate it in Collins v. 298 Ark.
(1989), decided this week. Now the is further majority position while solidified in the of these consolidated cases and I decision view, changed gained havе not I see to be my nothing likelihood continuing that has no espouse position basis, On that and the fact prevailing. given approach sought, taken the relief by majority the entitled to petitioner I concur. Justice, dissenting. Purtle, I. the majority I believe
John give takes a stand which is There is no rigid. any too room take. Of course it started with Walker v. Department of Human S.W.2d 558 in which I (1987), concurred with I Walker that along Justice Hickmаn. stated in the legislature assign had the cases involving dependent- power neglected children to court. any existing
I went in Hutton v. along Savage, the decision (1989) agreed legislature S.W.2d 394 because I that the *5 сould not to a give judges authority person another appoint judge to the load. I did not forsee that the help carry opinion Hutton would be construed from judges prohibiting appointing and refereеs be may masters in situation. Masters special every to necessary up demand that keep dependent-neglected to child cases ARCP Rule states that “reference 53(b) require. master shall be the and not the rule.” Cases of exception After children constitute such an dependent-neglected exception. all, are and only judge’s small circuit part chancellor’s we can casеload. We created Rule and present amend it if to accommodate the an- necessary requirements nounced in Walker and Hutton.
The and courts need people bridge from the present 1, until the new juvenile code becomes August effective on 1989. This court has authority and the duty to Article pursuant Section and Amendment 28 of the Constitution of Arkansas to provide procedure which will suffice until the nеw law becomes effective.
The majority “can carve through the technicality” result, reach the desired but at the same time to refuse allow trial courts to “carve through the technicality” and serve legiti- mate of the purposes juvenile justice system. Certainly these cases should be decided by full-fledged judges, judges but cannot fully investigate cases from start to finish. Judges acting on other cases are not to attend required detail every concerning case every filed. No doubt present judges willing are to work a — little harder until the new law becomes effective. I agree with the majority chancellоrs cannot anoint clones perform However, their judicial functions. this court should not hand them a brick while they attempting swim the circumstances, stream. Under I would exercise a little more tolerance in appointing masters referees until the new law takes effect. Trial courts must have some discretion in matters such as this in order to what accomplish demanded the law. Generally speaking we leave much to the discretion of trial courts. Certainly just this such an occasion. Common sense justice dictate that we be strong enough bend.