H.G. FOSTER, Special Prosecutor and Jack McQuary, Special Prosecutor v. Hon. Victor L. HILL, Circuit Judge
07-1235
Supreme Court of Arkansas
February 7, 2008
275 S.W.3d 151
Victor L. Hill, for respondent.
Tom Cooper, for amicus curiae, Arkansas Prosecuting Attorneys Association.
JIM HANNAH, Chief Justice. This matter conсerns investigation of possible criminal conduct arising from the death of DeAunta Farrow.1 Special Prosecuting Attorneys H.G. Foster and Jack McQuary petition this court for a writ of prohibition, or in the alternative, a writ of certiorari, to quash an order of the Circuit Court of Crittenden County, Civil Division (Division 6) calling a special grand jury to investigate Farrow‘s death. We hold thаt Division 6 was without authority to enter an order that a special grand jury investigate Farrow‘s death when Division 3 had already appointed the special prosecutors to perform the same task.2 Division 3 held exclusive jurisdiction over matters pertaining to the investigation of Farrow‘s death. The writ of certiorari is granted. Our jurisdiction is pursuant to
Farrow‘s death оccurred in Crittenden County, and pursuant to the PLAN OF THE 2ND JUDICIAL CIRCUIT adopted3
After extensive investigation by the Arkansas State Police, other agencies, Mr. McQuary and myself, it is our opinion that there does not exist sufficient evidence to charge Sgt. Sammis, or any member of the West Memphis Police Department, with a crime under the Arkansas Criminal Code.
Additional language in the report states that, although the shooting of Farrow was a tragedy of the highest order, it “does not present a prosecutable criminal case under the laws of the State of Arkansas.” Further, the special prosecutors stated that “should credible ‘nеw’ evidence appear at any time, it will be received and evaluated for possible further action. This of course is true here as it is in any criminal investigation, closed or open.” Both in oral argument, and in their brief, petitioners indicated that new evidence has been received, that the investigation is not closed, and that they are still acting under the Division 3 order appointing them.
Six days after petitioners’ November 20, 2007 report, a petition was presented to Division 6 to call a special grand jury to investigate the death of Farrow. Thereafter, Division 6 issued an order calling a special grand jury to investigate Farrow‘s death. Two days later on November 28, 2007, Foster and McQuary filed
The question presented is whether Division 6 had authority to enter its order on November 26, 2007. We first consider the issue of subject-matter jurisdiction. Pursuant to
There are two grounds wholly unrelated to subject-matter jurisdiction that deprived Division 6 of authority to issue its order on November 26, 2007. The first ground is the common-law rule
This court has warned that permitting attempts by courts to exercise jurisdiction on an issue upon which another court has аlready acted would “paralyze justice.” Jones v. Garratt, 199 Ark. 737, 739, 135 S.W.2d 859, 859 (1940). “If interference may come from one side, it may come from the other also, and what is begun may be reciprocated indefinitely.” Askew, 225 Ark. at 72, 279 S.W.2d at 560 (quoting 14 Am. Jur. Courts § 243 (1938)); Dunbar v. Bourland, 88 Ark. 153, 163, 114 S.W. 467, 472 (1908) (quoting MacLean v. Wayne Circuit Judge, 52 Mich. 257, 259, 18 N.W. 396, 397 (1884)). Thus, while both divisions had subject-matter jurisdiction, under the common law on concurrent jurisdiction, Division 3 held exclusive jurisdiction on November 26, 2007; as of that date, Division 6 and the other divisions werе without authority to call a special grand jury to investigate when Division 3 had already acted by appointing special prosecutors to investigate.
The second ground denying Division 6 the authority to act in this matter on November 26, 2007, is the superintending control of this court exercised over the courts of this state. Arkansas Constitution Amendment 80, § 4 specifically provides that this court exercises superintending control over all the courts of the state. Further, the highest court in any common-law state has inherent superintending control over lower courts; it is an inherent power available to enable the court to fulfill its role as the court of last resort in the state. State v. Jerrell, 283 Wis. 2d 145, 699 N.W.2d 110 (2005). It is derived from the common law of England for purpоses of effective administration of justice within
Superintending jurisdiction is one of three types of jurisdiction held by courts of last resort that also includes appellate and original jurisdiction. Cohen v. State, 732 So. 2d 867 (Miss. 1998).7 Original and superintending control are most often enforced through issuance of writs. Id. Superintending control is an extraordinary power that is hampered by no specific rules or means. Id. By virtue of the jurisdiction, the court may “invent, frame, and formulate new and additional means, writs and processes.” Id. (quoting State v. Roy, 40 N.M. 397, 422-23, 60 P.2d 646, 662 (1936)). The court is bounded only by the exigencies that call for its exercise. Cohen, supra. However, the jurisdiction is used with caution and forbearance to further justice and to secure order and regularity in judicial proceedings where no ordinary rеmedies are adequate. Spence v. North Dakota Dist. Ct., 292 N.W.2d 53 (N.D. 1980).
In adopting the administrative plan in the Second Judicial Circuit, all eleven circuit court judges signed and agreed to the procedure for the orderly assignment of the circuit court cases filed and distributed to the judges who make up the Second Judicial Circuit. They agreed that criminal matters arising in Crittenden County would be handled by Divisions 3, 5, аnd 8. That plan was approved by this court as provided for under Administrative Order 14. As noted, Division 3 was never asked to convene a grand jury. Division 6 could not convene a special grand jury in this matter because it was not assigned criminal matters arising in Crittenden County. Under our superintending control, we cannot allow coordinate divisions of a single circuit to compete for control of processes investigating possible criminal acts. Division 3 assumed jurisdiction first and held exclusive jurisdiction. Division 3 was assigned jurisdiction under the administrative plan. Division 3 is where any interested parties should have sought redress for any concerns about the investigation into Farrow‘s death. If the interested parties present their concerns to Divisiоn 3 and then believe that Division 3 fails to follow the proper course, then redress is by petition to this court under its original jurisdiction, not by resort to a coordinate circuit court. The deeply held
Petition for writ of certiorari granted.
CORBIN and BROWN, JJ., concurring.
DONALD L. CORBIN, Justice, concurring. While I agree with the majority that Division 6 of the Crittenden County Circuit Court lacked authority to intervene in the investigation of the shooting death of DeAunta Farrow where the matter was properly assigned to and on-going in Division 3 of that circuit, I must write separаtely to highlight two issues that greatly trouble me.
First, while Respondent Honorable Victor L. Hill was without authority to consider a matter pending in another division of his circuit, after listening to both parties at oral argument, I understand to a degree why Judge Hill chose to act. The order that was entered by Division 3 appointing the special prosecutors stated that their commissions would “expire upon completion of the above-stated investigation and/or prosecution or until further order of this Court.” (Emphasis added.) The use of the disjunctive “or” coupled with the fact that the special prosecutors submitted a report finding that there was no evidence of criminal wrongdoing on the part of Officer Erik Sammis clearly сaused confusion as to whether the matter was settled in Division 3. The current confusion could have been avoided, however, if Judge Hill had conferred with the judge in Division 3 or his administrative judge in order to determine the status of the case. In any event, once Judge Hill learned that the matter was on-going in Division 3, he should have exercised his discretion and terminated his aсtions. While I agree with Judge Hill that judges, such as himself, who travel throughout the circuit have the jurisdiction to hear all types of matters, we simply cannot have judges competing over the same case; otherwise, chaos would reign.
Second, I want to highlight the concluding part of the majority‘s opinion that if the parties present concerns to Division 3, but believе that Division 3 is failing to act in an expeditious or proper manner, then a proper party may seek redress by petition to this court. Moreover, I would add that once this matter is closed in Division 3, if a party were to obtain new evidence germane to this case, that party could seek redress in one of the divisions of circuit court assigned to handle criminal matters.
BROWN, J., joins.
ROBERT L. BROWN, Justice, concurring. I join Justice Corbin‘s concurrence but add these additional observations. The problem with this case is that a factual dispute looms large as to whether the investigation by the special prosecutors was closed when they issued their report to Judge Burnett on November 20, 2007. The case certainly seemed to be over. The prosecutors said:
In October alleged “new” evidence was announced to have been in the possession of Mr. J. Bailey, Attorney, to include a “chip” bag and a “soda” container, recovered by Mr. Bailey‘s team at the scene, and the names of several “new” witnesses who gave various statements to those working with Mr. Bailey. As of the date of this report, despitе efforts by the ASP to obtain said evidence, it has not been provided to us. Given the description of the “evidence” provided by Mr. Bailey on television and over the telephone to Foster, it does not appear to adequately contradict the vast weight of the statements given by witnesses who have spoken with law enforcement or the physiсal evidence recovered by law enforcement at the scene the night of the shooting, or thereafter; consequently the decision has been made to close the investigation despite the current absence of actual “evidence” alleged to be in Mr. Bailey‘s possession. It should be noted here that should credible “new” evidence appear at any time, it will be received and evaluated for possible further action. This of course is true here as it is in any criminal investigation, closed or open. A review of the investigative file will show the photos taken at the scene the night of the shooting and the absence of any chip bags or drink containers.
(Emphasis added.) At the end оf the report, the special prosecutors concluded that the shooting did not “present a prosecutable criminal case.” Judge Burnett subsequently released the redacted criminal investigative file of the special prosecutors to the public.
The reason this is important is that the appointment of the special prosecutors was to “expire upon completion of the above-stated investigation and/or prosecution or until further orders of
At oral argument before this court, Special Prosecutor H. G. Foster announced that new information had been presented to him since his report, including a DVD relating to the investigation. In light of this, he contended that his investigation was continuing. Mr. Foster further maintained that his role as special prosecutor should go on as long as there is new evidence to consider.
Judge Hill stated at oral argument that he did not believe that the investigation by Mr. Foster and Mr. McQuary was, in fact, continuing. He also disagreed with the special prosecutors’ decision not to charge Officer Sammis.
This court, as a result, is called upon to decide a credibility question of whether the investigation by the special prosecutors was concluded in DeAunta‘s death, which meant the special prosecutors were discharged. In my judgment, we must take the special prosecutors at their word, as we presume public officials perform their duties correctly. See Dilday v. State, 300 Ark. 249, 778 S.W.2d 618 (1989). Nor should this court interfere with the duties of the prosecutors, as that would be a violation of the separation-of-powers doctrine. See State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993). Because of this, I resolve the сredibility issue in favor of the special prosecutors.
Judge Hill‘s principal argument in opposition to the issuance of the writ is that Arkansas law authorizes the circuit court to empower a special grand jury. He cites to the following statute:
(a) At any time a grand jury is not in session, the court, in its discretion, by order entered of record, may impanel a special grand jury.
(b) When impaneled, the special grand jury shall have all the powers and proceed in all respects as provided by law for the conduct of regular grand juries.
Nevertheless, because of the history of this case, it is imperative that the investigation regarding the new evidence be handled with diligence and dispatch.
What we do not decide in this case is what might transpire in the future in the form of additional investigative action, once the current investigation is concluded.
With these comments, I agree to the issuance of a writ of certiorari to halt the grand jury called for by Judge Hill.
CORBIN, J., joins this concurrence.