295 Ark. 663B, Johnson v. Sturdivant, 87-163

• Decision Date: 17 October 1988
• Docket Number: No. 87-163,87-163
• Citation: 758 S.W.2d 415
• Parties: B Charles JOHNSON, d/b/a Johnson Timber, et al., Appellants, v. Norma Jean STURDIVANT, Administratrix of the Estate of Frank Sturdivant, Jr., Deceased, et al., Appellees.
• Court: Arkansas Supreme Court

Page 415

758 S.W.2d 415

295 Ark. 663B

Charles JOHNSON, d/b/a Johnson Timber, et al., Appellants, v. Norma Jean STURDIVANT, Administratrix of the Estate of Frank

Sturdivant, Jr., Deceased, et al., Appellees.

No. 87-163.

Supreme Court of Arkansas.

Oct. 17, 1988.

PETITION FOR REHEARING. DECISION SET ASIDE AND ALL

PARTICIPATING JUSTICES WILL DISQUALIFY IN

RECONSIDERATION OF THE CASE.

HICKMAN, Justice.

On June 6, 1988, ^* we handed down our decision in this case with Justice John Purtle delivering the opinion for the majority and Special Justice Mike Gibson dissenting. Justice Glaze did not participate. The appellants have filed a petition for rehearing, alleging any number of reasons therefor. The appellant Georgia Pacific Corporation has filed a motion suggesting that Justice Purtle disqualify from further participation in this case because he has a personal claim pending against Farmers Insurance Company, the insurer of one of the appellants.

Georgia Pacific has also asked the remaining justices to consider disqualifying in view of the decision of the Supreme Court of the United States in Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986), and the more recent decision in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). In Aetna Justice Embry, who wrote the opinion for the Alabama court in a 5/4 decision, was discovered to have personally filed two lawsuits against insurance companies which involved the same issues as the Aetna case. It was suggested that Justice Embry had written an opinion deciding his own lawsuits. The United States Supreme Court ordered the decision set aside. As it turns out, Justice Purtle has a claim against an insurance company of one of the appellants and that claim relates to the issue of an independent contractor which is the main issue in this case. We would not presume Justice Purtle intentionally erred or knew Farmers Insurance was involved in this lawsuit, but it was his duty as the judge assigned to write the opinion to know it. His personal legal business should never conflict with his role as a justice, and it is his duty, not ours or others, to see to that.

Justice Purtle has recused from further participation in this case and filed a contemporaneous opinion stating his position. His participation in the case, whether it was inadvertent or not, cannot be overlooked.

There is no doubt that, in view of the decisions in Aetna and Liljeberg, our decision must be set aside and resubmitted for consideration, and that is our order. It is our further duty which has given us pause and concern. Should we all remain in the case? Should we all disqualify and ask for a completely new panel of judges? Should we make that decision individually or as a body?

First, there is no doubt that the United States Supreme Court decisions do not require that we recuse from further participation. The petitioner, Georgia Pacific, makes much of Justice Brennan's concurring opinion in Aetna, but it was a concurring opinion and was not adopted by the majority. In fact when the case was resubmitted to the Alabama Supreme Court, none of the other justices recused on the ground they had been influenced by Justice Embry.

This does not mean, however, that any individual justice should hesitate to disqualify if he decides to do so. What a judge can do and ought to do are not always the same.

The choice is undoubtedly an individual one. We have considered the fact that the decision was not unamimous; we have considered the fact there was a special justice participating; we have considered our duty to the appellees who are entirely innocent in this matter, who have won their lawsuit at the trial level and essentially prevailed on appeal; and we have considered the nature of our decision. It was not a routine case and would unquestionably be an important precedent for future litigation. While we did not, in the opinion authored by Justice Purtle, overrule any of our prior decisions, a strong argument can be made that we did indeed depart from past decisions and head in a new direction.

Finally, we have considered the reputation of this court and its meaning to those who come to us for final judgment regarding their rights, privileges and liberties. While we are not expected to be a perfect institution, we are expected to always try to do the right thing. It is not easy to sit in judgment of one's self. Frankly, some of us believe we should remain in the case, others do not. Given the unavoidable choice of letting a decision stand under a cloud or removing the cloud entirely, we choose the latter. Considering all the circumstances in this case, we have decided it would be in the best interest of...