Disrespect Or Making A Record?
The Arkansas Supreme Court affirmed a contempt in a matter where there was some prior history between counsel and the judge
…viewing the record in the light most favorable to the circuit court’s decision, substantial evidence supports the decision to hold [attorney] Streit in contempt. When the circuit court informed Streit that it would not proceed with the hearing because of the lack of a written medical record, Streit immediately questioned the judge’s integrity in open court. Streit persisted with this theory even after the circuit court explained its reasoning for the decision. The record reflects Streit interrupted the circuit court on at least three occasions during the tense exchange. The circuit court allowed Streit an opportunity to reconsider his accusation, but Streit was unwilling. We emphasize that a court’s contempt power should be used cautiously and sparingly; however, because we find substantial evidence supports the decision that Streit’s actions displayed a lack of regard for the court’s integrity and demonstrated disrespect, we affirm.
There was a dissent
Because the record does not support the majority’s decision to affirm the circuit court, I dissent from the majority opinion and would reverse and dismiss this matter.
This appeal stems from a guardianship matter and the statutory requirements necessary for the appointment of a guardian. During a discussion between Judge Hughes and Streit regarding the statutory requirements and Streit’s attempt to preserve the record, the circuit court erroneously held Streit in contempt.
Here, a careful review of the record demonstrates that at the commencement of the hearing, Judge Hughes immediately set the tone by pointing out deficiencies in Streit’s case. Streit attempted to respond to Judge Hughes’s objections, but before Streit could do so, Judge Hughes instructed him that he would not place a guardianship over the individual “without having the necessary records.” Streit attempted to seek clarification from the court, but Judge Hughes interjected, stating, “Sir, you don’t need to be clear. I told you the answer.” Streit attempted to make his record, and after Judge Hughes interrupted him several times, the following dialogue ensued:
Judge Hughes: You can make your record, sir –
Mr. Streit: You and I both know what this is about.
Judge Hughes: We do? I don’t know what it’s about.
Mr. Streit: This is about an appeal on which you were reversed. That’s what this is about.
Judge Hughes: Oh, is that what it’s about?
Mr. Streit: Yes.
Judge Hughes: No, sir. Five minute recess.
After this exchange, the circuit court recessed for twelve minutes, reconvened and immediately continued to challenge Streit’s position on the guardianship requirements. The record demonstrates that when Judge Hughes returned to court, he began reciting portions of the statutes at issue. Streit again sought clarification from the court on the Judge’s previous ruling, igniting another discussion on the merits of Judge Hughes’s ruling which Streit sought to make a record. Following a drawn-out dialogue, Judge Hughes then read a portion of the Arkansas statute on contempt. He presented to Streit a summary of his impression of the events that unfolded: “You accused me of having motivation to call these requirements to your attention. . . and I said I was doing this for something that was not related to this and was in fact I believe motivated by a prejudice towards you. Am I correct?” Streit responded affirmatively, preserving his record and maintaining his earlier position. Judge Hughes asked Streit again, “Do you wish to take that position?” to which Streit replied, “I do believe that, yes.” Judge Hughes then found Streit in contempt. This finding is simply wrong and should be dismissed.
…the record clearly establishes that Streit attempted to make a record regarding the denial of his petition for appointment of a guardian. However, the majority fails to recognize the complexity of the multiple guardianship statutes at issue. The record demonstrates that there were several different statutes at issue. Streit, even needing clarification himself, asked Judge Hughes several times to explain his rulings so that Streit could respond. Consequently, it was necessary to make a record as to what was occurring—a petition for appointment of a guardian to a ward with dementia—and Streit sought to obtain a ruling in the record as a potential ground for appeal. Further, after Judge Hughes recessed and then returned, Judge Hughes himself decided to revisit the issue, not Streit. After reading aloud the statute on criminal contempt, Judge Hughes asked Streit if he still maintained his earlier position regarding his alleged bias. In doing so, he essentially backed Streit into a corner: Streit could either confirm his position that Judge Hughes’s interpretation of the guardianship statute was erroneous based on his bias even while presuming he would subsequently be charged with contempt, or answer in the negative, potentially responding with dishonesty, and failing to preserve the record for his client.
In short, the record shows that Streit’s statements were made based on his right as counsel to make a record and not contemptuous. The crux of the issue here seems to be Judge Hughes’s reaction to his previous experiences with Streit and perceived criticism rather than Streit’s behavior.
The reference in the exchange involves a prior matter in which the attorney had represented another attorney in successfully appealing the judge’s non-recusal in a matter.
We note that [attorney] Mr. Simpson has filed two complaints with the JDDC against the trial court and that the trial court has recused from Mr. Simpson’s cases in the past, citing Mr. Simpson’s “repeated attacks” against it. Considering what transpired at the Phifer hearing and the personal statements leveled at Mr. Simpson after the trial court issued its rulings in Mr. Simpson’s cases, we think the trial court’s impartiality has reasonably been questioned. While each allegation from appellant’s motion for recusal viewed in isolation may not have been sufficient, we hold that those allegations are sufficient when viewed as a whole to create what could be perceived as bias against Mr. Simpson, and by extension, Mr. Simpson’s client. Because the trial court’s impartiality was reasonably brought into question, Rule 2.11 required the trial court to recuse according to Ferguson. We hold that the trial court abused its discretion in denying appellant’s motion for recusal.
An allegation in the recusal motion
On May 16th, 2014, the Court was campaigning at a restaurant in Kensett, White County, Arkansas. In a conversation with a local gentleman who was dining at the restaurant, the Court called undersigned counsel an “arrogant prick,” and blamed him for the difficulty of his campaign.
The Arkansas Democrat Gazette reported that the judicial complaints were dismissed.
David Sachar, executive director of the Arkansas Judicial Discipline and Disability Commission, announced the commission’s findings in a one-paragraph news release followed by a three-page letter to Hughes.
An investigative panel of the commission reviewed “multiple complaints” filed by three attorneys and one litigant, Sachar wrote.
“While the investigation did not reveal sufficient evidence … to recommend action for judicial misconduct, wrongdoing or incapacity under the [Arkansas Code of Judicial Conduct],” the panel was concerned about Hughes’ conduct, Sachar wrote. Judicial rules cited in Sachar’s letter related to judicial fairness and courtesy.
Sachar said the panel wanted to remind Hughes “that due process of law requires notice and an opportunity to prepare a defense and to be heard.”
Sachar said the panel considered Hughes’ “sporadic and delayed reactions” to attorney requests that the judge recuse, or step aside, from hearing certain cases.
“The Panel recognizes the delay could be the result of staffing challenges but urges you to resolve any internal problems expeditiously,” Sachar wrote.
Sachar also said Hughes should disqualify himself in any proceeding where the judge’s “impartiality might reasonably be questioned.”
The panel urged Hughes to evaluate similar issues “more fully in the future and exercise the appropriate protections afforded litigants and their attorneys, even if you ultimately rule in opposition to them,” Sachar added.
He cautioned Hughes that the complaints were dismissed “without prejudice” and could be re-evaluated should similar complaints be filed against him in the future.
(Mike Frisch)