Garry GRIFFIN v. STATE of Arkansas
CR 88-115
Supreme Court of Arkansas
December 5, 1988
760 S.W.2d 852
GLAZE, J., concurs.
HOLT, C.J., HICKMAN and NEWBERN, JJ., dissent.
See dissenting opinions in Griffin v. State, decided this date.
Murphy & Carlisle, by: John Wm. Murphy, for appellant.
Stеve Clark, Att‘y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
ROBERT H. DUDLEY, Justice. The appellant, a resident of Springdale, was arrested in Springdale, in Washington County, at 2:30 a.m. for driving while intoxicated and three related traffic offenses. He was taken to the Washington County jail in Fayetteville, where a gas chromatograph test was administered. He was thеn given a citation which directed him to appear in the Elkins
In the Elkins Municipal Court the appellant objected to venue based upon due process, equal protection, and
Even though the municipal court venue might have been erroneous, a point we do not reach, the applicable statute provides for an appeal to circuit court, where the accused is entitled to an entirely new trial, “as if no judgment had been rendered” in municipal court.
An accused is not without a remedy when he is cited into a municipal court which he believes to be improper venue. In such a situation, the accused should seek a writ of prohibition in circuit court. A writ of prohibition will issue when a lower court without venue is about to act. Tucker Enterprises, Inc. v. Hartje, Judge, 278 Ark. 320, 650 S.W.2d 559 (1983); Beatty v. Ponder, Judge, 278 Ark. 41, 642 S.W.2d 891 (1982); International Harvester v. Brown, Judge, 241 Ark. 452, 408 S.W.2d 504 (1966); and Monette Road Improvement District v. Dudley, Judge, 144 Ark. 169, 222 S.W. 59 (1920).
Affirmed.
HOLT, C.J., HICKMAN, and NEWBERN, JJ., dissent.
GLAZE, J., concurs.
The venue question posed, but not answerеd here, arises when a municipal court entertains a state‘s misdemeanor action against a defendant where the commission of the crime occurred outside the territorial limits of the municipality but within the county where the alleged violation was committed. Concerning a municipal court‘s jurisdiction, the
Arkansas statutory law,
The General Assembly‘s failure to provide a venue law for bringing criminal proceedings in municipal court was not argued in this cause. Thus, what effect this omission might have remains unanswered. I have no doubt that the General Assembly has the authority, as well as the responsibility, to resolve this venue question. See Brickell, 192 Ark. at 655, 93 S.W.2d at 657; see also 22 C.J.S. Criminal Law § 176 (1961); 21 Am. Jur. 2d Criminal Law § 365 (1981). If the General Assembly fails to act, I am sure this court can expect some defendant to raise this venue question properly. When that occasion arises, confusion in the state‘s municipal сourt process will surely result if this court holds
DARRELL HICKMAN, Justice, dissenting. The folly a court can reap when it will not follow the constitution is demonstrated by this case аnd its companion case, Pschier v. State, decided this same date. The 1874
Lower level courts consisted of courts of common pleas, which could have county-wide jurisdiction on certain civil matters, justice of the peace courts with modest civil and criminal jurisdiction, and what were called corporation courts for towns and cities. These city courts were given the same subject matter jurisdiction as justice of the peace courts.
In 1915, this court made a serious mistake in its interpretation of the constitution and decided that the Little Rock and North Little Rock municipal courts could have county-wide jurisdiction, that is, jurisdiction beyond their geographic limits, even though the judges were only elected as city officials. State ex rel. Moose v. Woodruff, 120 Ark. 406, 179 S.W. 813 (1915). The reasoning behind the decision was that thе constitution did not say you couldn‘t give a city court extra-territorial jurisdiction. Of course, the constitution doesn‘t say that Arkansas cannot annex Oklahoma either.
The decision ignored entirely the overall scheme for lower courts and paved the way for the current proliferation of municipal courts operating beyond the bounds of constitutional restraints. Generally, these courts all have equal jurisdiction
Act 87 of 1915 effectively provided for the creation of municipal courts only in the Pulaski County area; at the time it applied just to Littlе Rock and North Little Rock. I can only suppose that the court in 1915 thought there would never be more than one or perhaps two courts in a county. Perhaps the court thought it was improving the system by providing for a court for the whole county with a lawyer sitting as judge. Maybe the court wanted to accommodate the powers that be; or maybe thе court didn‘t understand the consequences of its decision. In any event, could it be seriously argued that the court, or the drafters of the constitution, envisioned a situation like the one in present-day Pulaski County: six municipal courts, most empowered to hear identical cases, and, with no legal means of preventing overlapping jurisdiction, receiving thеir cases on the whim of the arresting officer?
The constitution‘s scheme, if it had been followed, would have worked perfectly. A city court would have jurisdiction over matters within its city limits and coexistent with justices of the peace over townships located in the city limits. Justices of the peace would handle certain civil and criminal matters within their townshiрs;2 a court of common pleas could be established to handle civil matters for the whole county (there are such courts in 13 counties in Arkansas). There was no mention of or contemplation by the drafters of a city court that could rule the county.3
I cannot say exactly when it occurred to some cities and counties that getting a municipal court was the thing to do, but the idea has caught on. Forty-five municipal courts, nearly one-third of the current total, have been created since 1970. Part of this is due to the passage of Act 240 of 1973 which allowed municipal courts to be established in second class cities under some circumstances.
We have had opportunities to minimize the impact of Moose v. Woodruff. In Lawson v. City of Mammoth Spring, 287 Ark. 12, 696 S.W.2d 712 (1985), and Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984), two municipal courts were declared illegal because they were based on local legislation. In City of Springdale v. Jones, 295 Ark. 129, 747 S.W.2d 98 (1988), we held a municipal court cannot have jurisdiction in another county even though the city extends into the other county.
But in Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981), we compounded our past error and approved the creation of an entirely new court creature—a county municipal court. That such a county-city court was authorized by the constitution is simply laughable. We have said repeatedly that the legislature does not have the power to create courts, Walker v. Ark. Dept. of Human Services, 291 Ark. 43, 722 S.W.2d 558 (1987);
The Pulaski County “municipal cоurt” was created to make money for the county (Pulaski County would not have to share in the fine revenues from other municipal courts). The court has done well. In fiscal year 1988, it collected $413,596.00 in fines and costs.
Our decisions have created confusion beyond the question of a court‘s jurisdiction. Is a municipal judge a city official or a county official? In Beshear v. Clark, 292 Ark. 47, 728 S.W.2d 165 (1987), we held it to be a municipal office. Would that be true of a judge of a county municipal court, or a municipal judge of part of a county? See Pulaski County Municipal Court v. Scott, supra.
This case and the Pschier case concern the court system in Washington County. There are five municipal courts in that county, one each in Fayetteville, Springdale, Prairie Grove, West Fork and Elkins. We have reviewed another case in which a Washington County law enforcement officer took a defendant across the county to another city‘s municipal court. See Horn v. State, 282 Ark. 75, 665 S.W.2d 880 (1984).
In this case, did deputy sheriff Vernon Sizemore who arrested Garry Griffin in Springdale, a city of 25,556, take him to be tried in Elkins, a town of 673, because the justice was better there? I expect not. Perhaps he wanted to help Elkins out in its revenue raising efforts. In fiscal year 1988, Elkins collected $46,353.00 in fines. Perhaps the sheriff‘s office favors Elkins, or maybe it is just a matter of spreading business around. Whatever the motivation, I cannot think of one good reason for taking Griffin, a Springdale resident arrested in Springdale, to the Elkins court.
The same question can be asked in the comрanion case. Why on earth would Pschier, who was arrested near Elkins, be tried in West Fork, which has a population of 1,580 and is about 15 miles from Elkins. Is the justice better there?
Is this the kind of court system the drafters of the constitution created? Nonsense.
The question is should we continue to tolerate such a system. For myself, I will stay with the constitution as I have in the past. See City Court of Pea Ridge v. Tiner, 292 Ark. 253, 729 S.W.2d 399 (1987) (Hiсkman, J., dissenting). To me the question is jurisdiction, which we can raise on our own. The municipal courts of Elkins and West Fork have no jurisdiction over misdemeanors committed outside their city limits. I can understand the court‘s reluctance to go back to the constitution at this late date, but the alternative is fostering a system that leaves a defendant, guilty or not, with the impressiоn he has been railroaded.
The court can hope the legislature will come to its rescue and regulate the jurisdiction of these courts to prevent policemen from forum shopping. But the municipal courts and their cities are a strong lobby and their newfound power and revenues will not be easily surrendered. The municipal judges could work tо change the system but they are unlikely to for the same reason.
The court can ignore the problem and hope a constitutional amendment will be passed or that these cases won‘t persist. In my judgment, that is essentially what the majority is doing. I would not reach the due process argument. But the majority‘s treatment of the question is disturbing; that is, if one can‘t find justice in thеse courts, it can be found in the circuit court. Frankly, that means due process of law can only be obtained if one hires a lawyer and spends several hundred or a thousand dollars for an appeal. The majority is saying the constitution does not count in these courts. There is no doubt that due process of the law encompasses the right to an impartial judge which can be a question in cases such as these. See Ward v. Village of Monroeville, 409 U.S. 57 (1972); Gore v. Emerson, 262 Ark. 463, 557 S.W.2d 880 (1977).
I get the impression that, for some reason, these are considered little cases involving little people who must fend for themselves. I suppose it will take a scandal to remedy this situation and scandal there will be. Because anytime a policeman can deсide which judge will determine the fate of the defendant, there is an open invitation to corruption.
I would reverse and dismiss this case.
HOLT, C.J., and NEWBERN, J., join in this dissent.
DAVID NEWBERN, Justice, dissenting. Justice Hickman‘s dissenting opinion expresses my views. I was tempted to vote with the majority but publish a concurring opinion pointing out that if we hold that municipal courts do not have county-wide jurisdiction we might leave a void in those parts of counties not included in any municipality.
Our need for a new judicial article is pressing. This is not a time for timidity. It was our decision in Walker v. Arkansas Dept. of Human Services, 291 Ark. 43, 772 S.W.2d 558 (1987), which brought about the new amendment permitting the creation of juvenile courts. While I am not certain the void created by limiting municipal courts powers to the geographical limits of the cities they serve can be as readily filled as was the temporary juvenile court void, I am convinced it is the price we should be willing to pay to correct аn absurd and unfair situation.
My hope is that we can stop dealing with the brush fires created by our antiquated judicial article by addressing the overarching conflagration. Arkansas is ready for a modern court system, like the one recently created in Alabama, including financial and political unification of the state judiciary.
HOLT, C.J., and HICKMAN, J., join this opinion.