Merle BATES v. Michael BATES
89-320
Supreme Court of Arkansas
July 16, 1990
Supplemental Opinion on Denial of Rehearing September 24, 1990
793 S.W.2d 788
*Hays and Glaze, JJ., would grant rehearing.
HAYS and TURNER, JJ., join this dissent.
Steve Clark, Att‘y Gen., by: Clint Miller, Asst. Att‘y Gen., for the State of Arkansas.
H. Joan Pennington and Laurie Woods, National Center for Women and Family Law, and Bill Rahn, Ark. Legal Services Support Center for amicus curiae National Center on Women and Family Law.
Marilyn Brown, for amicus curiae Ark. Advocates for Children and Families.
Caran Curry, Prosecutor Coordinator, by: Anne Orsi Smith, Staff Att‘y, for amicus curiae Office of the Prosecutor Coordinator.
Compton, Prewett, Thomas & Hickey, P.A., by: Robert C. Compton; Roberts, Harrell & Lindsey, by: Alan P. Roberts; Shackleford, Shackleford & Phillips, P.A., by: Dennis L. Shackleford, for appellee.
ROBERT H. DUDLEY, Justice. Appellee Michael Bates allegedly abused his wife, appellant Merle Bates. She filed a petition in chancery court pursuant to the Arkansas Domestic Abuse Act of 1989.
The Arkansas Domestic Abuse Act provides that a petition
Article 7, section 11 provides: “The circuit court shall have jurisdiction in all civil and criminal cases the exclusive jurisdiction of which may not be vested in some other court provided for by this Constitution.” This provision means that unless a cause of action is confided by the Constitution exclusively to another court, it belongs exclusively, or concurrently, to the circuit court. State v. Devers, 34 Ark. 188 (1879). In other words “[a]ll unassigned jurisdiction under the Constitution is vested in the circuit court . . . .” Patterson v. Adcock, 157 Ark. 186, 248 S.W. 904 (1923). Article 7, section 15, provides: “Until the General Assembly shall deem it expedient to establish courts of chancery the circuit court shall have jurisdiction in matters of equity, subject to appeal to the Supreme Court, in such manner as may be prescribed by law.” By Act 166 of 1903,
Appellant argues that the Domestic Abuse Act did not
The appellant argues that the chancery court has jurisdiction to protect personal and property rights. Her general statement is valid, but equity can only protect personal and property rights when certain conditions are present. Webber v. Gray, 228 Ark. 289, 307 S.W.2d 80 (1957). One of those conditions is that the remedy at law is inadequate. Thus, the real issue is whether there is an adequate remedy at law. There is.
At law, a wife is entitled to protection from both actual physical abuse,
Appellant argues the above criminal statutes are ineffective because battered housemates are afraid to file criminal charges and prosecutors do not act diligently. Even if the arguments were valid, we would not ignore the jurisdictional language of the Constitution and, in doing so, deprive an accused of his Constitutional right to a trial by jury. Further, we are not convinced either of the arguments are valid. First, if a housemate is afraid to file a complaint in circuit court we cannot see any reason why she would not also be afraid to file it in chancery court. Second,
Finally, the criminal laws and procedures in some instances protect potential victims. A potential victim may obtain a peace bond. See
Additionally, except in narrow circumstances not present here, equity will not enjoin the commission of a crime because the remedy at law is adequate. The limited exception, articulated in Smith v. Hamm, 207 Ark. 507, 181 S.W.2d 475 (1944), arises when the criminal act is “incidental,” and there is a danger of “irreparable pecuniary injury to property or pecuniary rights of the complaining party.” If the rule were otherwise, the constitutional right of trial by jury would be infringed. Smith v. Hamm, 207 Ark. at 512, 181 S.W.2d at 478. See also Maxwell v. Sutton, 2 Ark. App. 359, 621 S.W.2d 239 (1981).
In sum, we cannot say the remedy provided at law is inadequate and, accordingly, one of the conditions necessary for equity to act to protect personal and property rights has not been met. Thus, the Chancellor correctly held that the Domestic Abuse Act impermissibly enlarged chancery court jurisdiction.
Appellant next argues that even if the Act is unconstitutional, and equity has no jurisdiction, we should not declare the whole Act invalid. Rather, we should allow domestic abuse proceedings to be held in circuit court. We cannot do so. The Act
Finally, we are certainly aware that domestic abuse does occur and is a serious problem. We applaud the general assembly‘s concern and hope that a way, consistent with the constitution, can be found to curb this recognized evil. Our duty in this case is not to determine whether domestic abuse occurs and to approve any legislation designed to stop it. Our duty is to determine whether our constitution permits the method selected by the general assembly in the legislation questioned in this case.
If we were to perceive the issue and take the steps the appellant and some of the amici briefs suggest, the jurisdiction of chancery court could be extended almost beyond imagination. For example, drunken driving is a serious problem. Even the Supreme Court of the United States has lamented the frightful carnage it spews upon our highways. South Dakota v. Neville, 459 U.S. 553, 558 (1983). The criminal laws have not stopped drunken driving, but we cannot use that fact as a reason to approve extending the jurisdiction of the chancery court to issue an “order of protection” against persons accused of, but not convicted of, drunk driving. Drug sales to children is a comparable problem, as is burglary. We cannot subvert the Constitution of Arkansas and allow the creation of a cause of action totally foreign to the equity jurisdiction of the chancery court just because we perceive and abhor a particular social ill. We are pledged to support the Constitution of Arkansas, and our duty is to follow it in this case as in any other.
Affirmed.
HAYS and GLAZE, JJ., dissent.
TOM GLAZE, Justice, dissenting. My differences with the majority do not lie with the case law or statutes cited in its
My strong objection with the majority is its conclusion that battered housemates and children have an adequate remedy under the state‘s criminal statutes which must be enforced in circuit court. The majority does a good job in listing criminal statutes that, indeed, cover a multitude of sins and aggressions. However, none of those laws provide for the removal of the abuser or perpetrator from the residence so as to prevent future violence.
At this point, I should mention that, in divorce cases filed in chancery court, parties routinely request and are given restraining orders or injunctions to prevent their spouses from (1) committing violence, (2) committing harassing acts, (3) going into or about the premises, (4) destroying property and (5) communicating by telephone or otherwise — just to name a few examples. Most importantly, this court, in James v. James, 237 Ark. 764, 375 S.W.2d 793 (1964), recognized that the fact an act enjoined also happens to be a criminal offense does not affect the power of a court of equity to enforce its order and the aspects of an act neither give nor oust equity of jurisdiction. The James court continued as follows:
If it should be held that the imposition of a criminal penalty for violation of a law would deprive a court of equity of jurisdiction to enforce its orders then a person desiring to proceed or continue in violation of the law might be able to pay a maximum fine and, thus, make himself immune from a valid chancery court injunction. This is not and should not be the law.
The majority ignores the well-settled principles set out in James. Instead, it divests chancery court of its jurisdiction over matters involving the same type violence and harassment as existed in James, and in doing so, states there are criminal statutes under which the victim can seek protection. This reasoning is not only contrary to longstanding equity principles just discussed, but also it has been my experience as an attorney and
Contrary to the majority court‘s suggestion, Arkansas‘s peace bond laws do not encompass such relief, but instead provide for the arrest of a person who threatens an offense against another and for a security (bond) by the person to insure his or her future good behavior.
After today‘s discussion, only married people, who file for absolute or limited divorce or separate maintenance, will be able to obtain the type relief that the General Assembly attempted to provide for all family or household members by enacting the Domestic Abuse Act of 1989. Such disparate treatment of family or household members seems, to me, to be constitutionally suspect.
I acknowledge the legal issues presented in this matter are not easy ones, and the majority court has done a good job in setting out the other side, leading to the view that the Act is unconstitutional. But I strongly disagree. Perhaps, the value of this litigation is that it underscores the major problems than can arise by having separate courts of equity and law. In most states, a general jurisdiction trial court has both equity and law powers. As a consequence, the legal mind twisting antics we have gone through in this case would be unnecessary because the trial judge in those states would not only have jurisdiction over criminal offenses, but also he or she would possess the power to enjoin or restrain acts to prevent domestic violence.
In conclusion, I note that, after it sets out its rationale for holding the Domestic Abuse Act unconstitutional, the majority
The appellant and amici are hardly asking this court not to uphold the Arkansas Constitution. While the majority finds no merit in the arguments made by those parties, it is “beyond my imagination” how the majority can conclude the cause of action and injunctive-type relief they ask enforced under the Domestic Abuse Act can be called, “totally foreign to the equity jurisdiction of chancery court.” Chancery court has exercised, and continues to exercise, such powers, as I have already discussed above. The court can only ignore its duty to support the constitution by failing to recognize the powers the constitution gives to chancery courts in this state. Instead, the appellant and other family members will be denied access to those powers and left only to possible criminal actions in circuit court, where no such preventive remedies are available. In my judgment, appellant‘s and amici‘s arguments are legitimate, meritorious and, at least in part, should be adopted by this court. While there may be some other problems with the Act‘s implementation, the Act is not deficient because abused or harassed household members can get adequate relief in the criminal division of circuit court. They cannot.
In any event, I remain of the view that Arkansas courts of equity have the power to enforce the provisions of the state‘s new Domestic Abuse Act. Therefore, I would reverse the trial court‘s holding to the contrary.
HAYS, J., joins this dissent.
Bates v. Bates
89-320
Supreme Court of Arkansas
September 24, 1990
Petition for Rehearing denied September 24, 1990
795 S.W.2d 359*
*Justice Glaze‘s dissenting opinion can be found at 799 S.W.2d 518.
Petition for Rehearing; denied.
Ben Seay and David J. Manley, for appellant.
Steve Clark, Att‘y Gen., by: Clint Miller, Asst. Att‘y Gen., for intervenor the State of Arkansas.
Shackleford, Shackleford & Phillips, P.A., by: Dennis L. Shackleford; Compton, Prewett, Thomas & Hickey, P.A., by: Robert C. Compton; and Roberts, Harrell & Lindsey, by: Alan P. Roberts, for appellee.
PER CURIAM. The petition for rehearing is denied.
HAYS and GLAZE, JJ., dissent.
STEELE HAYS, Justice, dissenting. While I share Justice Glaze‘s strong disagreement with the result reached by the majority, I believe the solution is for this court to grant rehearing rather than for the General Assembly to attempt to place the remedies and procedures provided in the Domestic Abuse Act under circuit or municipal court jurisdiction, jurisdiction which does not readily lend itself to the objectives of the act.
The Domestic Abuse Act groups together equitable remedies to form a unitary approach for combating the overwhelming problem of domestic violence. The forms of relief granted by the act are distinctly equitable remedies traditionally exercised by courts of equity, thus the powers of chancery courts are not expanded. The act prescribes a simplified form enabling victims to promptly seek protective relief and provides for the deferment of filing costs and fees enabling the destitute victim to gain access to the courts. Historically, chancery has been the tribunal wherein the conduct cognizable under the act has been addressed and chancery is the appropriate forum to deal with such problems.
Until a domestic abuser inflicts serious physical injury or
Yet without factual development at the trial level, or any challenge to its constitutionality by the defendant (now the appellee), the Domestic Abuse Act was declared unconstitutional in its entirety by the chancellor, essentially on the theory that an adequate remedy at law is already available to the victims of domestic violence. That holding on a record wholly devoid of factual development, and notwithstanding the “heavy burden” that rests on one who challenges the unconstitutionality of an enactment, [Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 863 (1983)] is palpably suspect.
This remedial legislation was designed to meet a compelling societal need and intended to correct an acute and pervasive problem involving violence and abuse within the family, the victims of which are invariably women and children. It was overwhelmingly enacted by the General Assembly, that branch of government most responsive to, and representative of, the general public. Before such enactments are struck down by the judicial branch of government, which is in no sense a representative body, nor intended to be, the constitutional infirmity must be clear and convincing beyond a doubt. Indeed, that is the rhetoric to which a legion of our cases subscribe. Love v. Hill, 297 Ark. 96, 759 S.W.2d 550 (1988); Streight v. Ragland, Commissioner, 280 Ark. 206, 655 S.W.2d 459 (1983); Buzbee v. Hutton, 186 Ark. 134, 52 S.W.2d 647 (1932) (“The conflict with the constitution must be unmistakable“); Board of Commissioners of Red River
TOM GLAZE, Justice, dissenting. While I strongly disagree with the result reached by the majority, I understand and respect my colleagues’ views in deciding this case as they did, and ordinarily I would not write because the court chooses to deny rehearing. However, because this court holds the Domestic Abuse Act unconstitutional, this subject matter appears destined for the General Assembly once again. For that reason, I believe it might be helpful to point out at least one problem that body must consider if it attempts remedial action which merely places the remedies and procedures provided in the Act under circuit or municipal court jurisdiction.
One primary and vital object of the Domestic Abuse Act, as I understand it, is to remove the abuser or perpetrator from the residence or premises so as to prevent future violence towards housemates and children. As I noted in my earlier dissent, none of the state‘s criminal laws or procedures provide for the removal of the abuser — unless, of course, the person is convicted and incarcerated for his or her threatened or committed violent acts. It is primarily this reason why I disagree with the majority concerning its holding that the violated or abused person has an adequate remedy at law, i.e., in circuit court — which leads me to the point I wish to make.
Our court has previously held that circuit courts lack jurisdiction to grant and enforce equitable relief. Cummings v. Fingers, 296 Ark. 276, 753 S.W.2d 865 (1988); see also id. at 281 (Newbern, J., concurring); Monette Road Improvement Dist. v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920); contra Daley v. Digby, 272 Ark. 267, 613 S.W.2d 589 (1981); cf.
Other troublesome issues surrounding the Act‘s future implementation no doubt will surface. Nonetheless, I feel obligated to mention the one I have because the legal obstacle it poses is serious, and since it has not yet been discussed or briefed, I am hopeful my mentioning it might be helpful to the General Assembly when it reconsiders re-enactment of the Act my colleagues have declared unconstitutional.
The foregoing leads me to my final observation. In the forty-eight states where a trial court has both equity and law powers, the court has authority to remove abusers of housemates and children from the home. That being so, where does that court‘s authority go when a state, like Arkansas, splits its trial court into separate equity (chancery) and law (circuit) courts? Does that authority disappear? Or does that authority still exist and reside in equity courts, as it has existed in divorce cases for nearly a century? I believe the latter is true and, in my view, therein lies the greatest flaw in the majority‘s rationale and holding.