Badami, Matter of, 91-259
| Decision Date | 01 June 1992 |
| Docket Number | No. 91-259,91-259 |
| Citation | 831 S.W.2d 905,309 Ark. 511 |
| Parties | In the Matter of Subpoena of James BADAMI. |
| Court | Arkansas Supreme Court |
Sarah H. Harberg, Asst. Atty. Gen., Little Rock, for appellant.
Jack D. Ruple, Deputy Pros. Atty., Little Rock, for appellee.
James Badami, executive director of the Arkansas Judicial Discipline and Disability Commission, was served with a subpoena duces tecum from the Prosecuting Attorney for the Sixth Judicial District on February 1, 1991. The subpoena was issued after an allegation was made to the prosecutor that a person at an official proceeding of the Commission committed perjury, a class C felony. Ark.Code Ann. § 5-53-102 (1987). The subpoena directed Badami to deliver a transcript of the sworn testimony to the prosecutor.
On February 11, 1991, Badami responded to the subpoena with a motion for a protective order pursuant to Ark.R.Civ.P. 26(c) and Ark.R.Crim.P. 19.4 and prayed that the subpoena be quashed. The motion was heard on March 29, 1991. At the hearing, Badami argued that the subpoena violated the confidentiality required of commission proceedings by both the General Assembly and Supreme Court Rules. See Ark. Const.Amend. 66; Ark.Code Ann. § 16-10-404(b)(1) (supp.1991); In the Matter of Rules 7 and 9 of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission, 302 Ark. 633, 790 S.W.2d 143 (1990). The prosecuting attorney countered that under Amendment 21 of the Arkansas Constitution and subsequent implementing legislation, he had the duty to investigate the alleged crime of perjury, using the subpoena power as an investigative tool. See Ark.Code Ann. § 16-43-212 (1987).
On June 6, 1991, the circuit court concluded that the prosecuting attorney's argument was persuasive and denied Badami's motion for a protective order. The court stayed its order pending an appeal to this court.
An order denying a protective order to quash a subpoena is not a final order for appeal purposes. See Ark.R.App.P. 2(a) (1992). Specifically, it is not a final judgment or order under Rule 2(a)(1); nor is it an order under Rule 2(a)(2) which determines the "action." Serving a subpoena duces tecum on Badami did not constitute an action as the term is defined in legal practice. An "action" may be a civil complaint or a criminal prosecution and is defined as "a lawsuit brought in a court; a formal complaint within the jurisdiction of a court of law." Black's Law Dictionary, 6th ed., 28 (1990).
Moreover, because the circuit court's order was stayed, this court does not know whether Badami will comply with the order, should it be affirmed, or not. In the event of affirmance, Badami could well refuse to release the transcript which could lead to a contempt citation and engender still another appeal to this court. The...
To continue reading
Request your trial
-
McKenzie v. Pierce
...168 (2003). Specifically, an order denying a motion to quash a subpoena is not a final order for appeal purposes. In re Badami, 309 Ark. 511, 831 S.W.2d 905 (1992). It also is not an order that determines an action under Arkansas Rule of Appellate Procedure–Civil 2(a)(2). Id.; see alsoArk. ......
-
Thelman v. State
...an order denying a protective order to quash a prosecutor's subpoena is "not a final order for appeal purposes." In re Badami, 309 Ark. 511, 513, 831 S.W.2d 905, 906 (1992). There, we held that such an order "is not a final judgment or order under [Ark. R.App. P.-Civ.] 2(a)(1), nor is it an......
-
Arkansas Ins. Dept. v. Baker
...held that the denial of a motion for a protective order to quash a subpoena is not a final and appealable order. In re Badami, 309 Ark. 511, 831 S.W.2d 905 (1992) (holding that in the event of a subsequent contempt citation, the case would likely be appealed to this court creating piecemeal......
-
Slay v. State
... ... Therefore, we turn to that matter as the sole issue in this appeal ... The circuit court, in making its decision on ... ...