Allen v. Rutledge

• Decision Date: 18 December 2003
• Docket Number: No. 03-330.,03-330.
• Citation: 139 S.W.3d 491,355 Ark. 392
• Parties: Tom ALLEN v. The Honorable Keith RUTLEDGE, Judge; Kenneth Lavigne; Cynthia M. Lavigne.
• Court: Arkansas Supreme Court

139 S.W.3d 491

355 Ark. 392

Tom ALLEN v. The Honorable Keith RUTLEDGE, Judge; Kenneth Lavigne; Cynthia M. Lavigne.

No. 03-330.

Supreme Court of Arkansas.

December 18, 2003.

Appeal from the Circuit Court, Independence County, David Keith Rutledge, J.

Jeff Rosenzweig, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Jill Jones Moore, Ass't Att'y Gen., Little Rock, for appellee.

W.H. "DUB" ARNOLD, Chief Justice.

This case involves the propriety of sanctions assessed by Circuit Judge Keith Rutledge, who was serving by appointment, against attorney Tom Allen under Rule 11 of Arkansas Rules of Civil Procedure. The trial judge ordered Allen to pay five hundred dollars ($500.00) to the opposing party. Allen is an attorney in Batesville and has presented various cases before Judge Rutledge, namely Cynthia Lavigne v. Kenneth Lavigne (Independence County Cir. PR-2002-251-4) and Greenway v. Swaims (Independence County Cir. CIV-2001-530-4) and was counsel in both cases. We take jurisdiction of this appeal, because it involves this court's power to regulate the practice of law. Ark. Sup.Ct. R. 1-2(a)(5). We reverse and remand.

Facts

On September 26, 2002, the trial court heard Lavigne v. Lavigne and announced its ruling from the bench. On October 11, 2002, Allen filed a motion to recuse and a brief in support thereof seeking Judge Rutledge's removal from the case based upon an "appearance of impropriety and an appearance of partiality." Allen cited the following reasons for recusal: (1) during the Lavigne trial, the trial judge had fondly referred to counsel for the plaintiff as Jo Hart Jr., the trial judge's former law partner and now a court of appeals judge; (2) the trial judge had made a comment in response to plaintiff's counsel as to alimony case law that "defendant's counsel would probably be happy with that amount;" (3) that alimony and child support constituting fifty-six percent of take home pay was unconscionable; (4) that the trial judge's refusal to decide custody according to the best interests of the children; (5) a statement by the trial judge earlier in the day that "I can do anything I want to. I'm the judge" and, (6) comments by the trial judge including "unfortunately sometimes you have to pay through the nose when you screw up." Allen argued by noting that the size of the alimony payments together with the judge's remarks about considering fault led him to conclude that Judge Rutledge neither gave his client a fair trial nor could he fairly rule on a motion for new trial, which Allen was considering filing in the Lavigne case.

On October 14, 2002, Allen filed a second motion to recuse and briefs in support thereof in the same case. The second motion noted the following: (1)that Allen believed that Judge Rutledge and Grady, opposing counsel, received the motion for recusal on the afternoon of Friday, October 11; (2) that upon arriving at his office on Monday, October 14, Allen found he had been delivered a copy of a letter dated October 11 from Grady to the trial judge, enclosing a suggested precedent "pursuant to the request of the trial judge;" (3) that Allen was not aware of any written request to prepare a precedent and that he believed that the request was an ex parte oral communication; and, (4)that the transcript of the trial judge's ruling contained no request for preparation of a precedent.

Ms. Grady filed a response and brief in support to the motion to recuse. Grady conceded that Judge Rutledge had called her "Jo Hart Jr.," but, asserted that the rulings of the trial court were not the basis for recusal. Grady also stated that Judge Rutledge had indeed phoned her and asked her to prepare the precedent, as she was the prevailing party. Grady further suggested that Allen's allegations were sanctionable under Rule 11; however, Grady failed to present a formal motion.

On November 1, 2002, a hearing was set for the recusal motions in both Lavigne and Greenway. Neither party called witnesses in the recusal motion in Lavigne, both attorneys stating that they would stand on their written pleadings. Then the recusal motion was heard in the Greenway motion. Allen presented witnesses to the effect that Judge Rutledge had been discourteous to him and his client in that case. The following colloquy occurred:

THE COURT: Okay. Now those are the two motions pending in this motion on the recusal. I'm going to state for the record that sometime prior to Ms. Grady furnishing me with the prep — proposed precedent in this matter, I had called her office as the winning attorney, which is normal in these cases, and I had ruled from the bench as to what my findings were in the case, and advised her secretary — I don't think I'd ever talked to Ms. Grady, that I needed a precedent in this, and to send the same to Mr. Allen so he could either object or not. Now, as far as I know that's the only communication that I've ever had and there's no evidence to the contrary in this record. Now, as it relates to the —

MR. ALLEN: May I inquire of the Court?

THE COURT: What?

MR. ALLEN:I — I need to ask you a question.

THE COURT: What are you going to ask me?

MR. ALLEN: The letter dated October 11th that was delivered to my office was —

THE COURT: Mr. Allen, do you have a question?

MR. ALLEN: Yes, sir.

THE COURT: What is it?

MR. ALLEN: The letter that was dated October 11th that you have on my Motion to Recuse, a copy of which was hand-delivered and stuck in my door, says: "Dear Judge Rutledge: Pursuant to your request —" Was that made before the —

THE COURT: I just told you, Mr. Allen. I just answered that question and it's —

MR. ALLEN: No. My — my question to you —

THE COURT: Well,I — I'm not going to sit up here and —

MR. ALLEN: — is, was your request before or after you received the Motion to Recuse?

THE COURT: I don't know. I don't know, Mr. Allen, but I'll tell you this. I'm not up here to answer your questions.

MR ALLEN: Well, Judge, I think —

THE COURT: I'm not up here to answer your questions. I just told you, I don't recall, but I do recall that I didn't talk to Jerrie Grady, okay.

MR. ALLEN: Well —

THE COURT: That's the end of that discussion. Now, let's go on back to your original motion. And —

MR. ALLEN: Was it — was it —

THE COURT: — besides that, even if I had talked to her and said prepare this, it's not —

MR. ALLEN: Judge, was the suggested precedent hand-delivered to your office on Friday afternoon?

THE COURT: I have no idea. I wasn't there. And I wasn't there on the 14th or —

MR. ALLEN: Well, would you —

THE COURT: — the 15th either, Mr. Allen, like you've alleged, okay.

MR. ALLEN: Did you instruct Ms. Grady to give me a letter that I am to immediately notify the Court?

THE COURT: Mr. Allen, sit down. I'm not up here to answer your questions, okay. You had your opportunity to put on evidence. You didn't take it. Sit down. Okay.

MR. ALLEN: Well, Judge, okay.

THE COURT: All right, on — as it relates to the first Motion to Recuse in this case. I want to go back over that because I want to take it line by line since there's no evidence in this record that's been offered, okay. As it relates to my comments about Jo Hart,I — I don't know that that's important. I may or may not have said that. I don't think it shows anything other than an aggressive part — and I don't know that it was fondly. Fondly is a word I wouldn't necessarily use. But I do want to go to — and so I'll take care of that.

MR. ALLEN: What?

THE COURT: That —

MR. ALLEN: What on "d"?

THE COURT: — that — Mr. Allen, do you have something that you want to say. I'm going down through here —

MR. ALLEN: I'm trying to understand what you're saying.

THE COURT: You put on no evidence whatsoever, okay. Do you understand that? You have put on no evidence.

MR. ALLEN: Well, Judge, the record will bear it out though, right?

THE COURT: Now, let — well, Mr. Allen —

MR. ALLEN: Judge, you know whether or not you made that statement.

THE COURT: I don't know that I made that statement, but if I did so what? That's my point. The second number(b), I don't know what that means. It — I don't know what it means. It doesn't show anything. It — it's — of a recusal nature. An unconscionable amount of alimony is something that you can appeal, if you feel like it's unconscionable. That's an appellate decision, nota —

MR. ALLEN: I understand that.

THE COURT: — Motion for Recusal. The — whether or not the Court properly followed the law as it relates to change of custody, that's an appealable issue, not something that the — this Court's going to recuse on. The statement that you — and this is a cheap shot, Jr. Allen, and I will state it for the record, it's a cheap shot. You put in here that the Trial Judge's statement earlier in the day in the courtroom, prior to hearing his case, that, "I can do anything I want to. I'm the Judge," was an aside bar comment, had nothing to do with any case. It had to do with a case that you and Mr. Garner were here on and Mr. Garner — at your request I got those children back for you that day —

MR. ALLEN: That's-that's not what happened.

After some more discussion, Judge Rutledge then ruled in the following way:

The Court: Now, on these two motions, I'm going to deny both motions, but I want to read you what Rule 11 says because I think that's significant in this case, `cause I think especially on the Lavigne case — I think it's just atrocious that you would file these allegations where there's no factual bases for any of them. "The" — Rule 11 says in part: "The signature of an attorney or party constitutes a certificate by him that he has read the pleadings, motion or other paper. That to the best of his knowledge, information and belief formed after reasonable inquiry, it is well grounded in fact and I warranted by existing law or a good-faith argument for the extension, modification or reversal of existing law and that it is not interposed for any improper purpose such as to harass...