Bates v. McNeil

• Decision Date: 05 December 1994
• Docket Number: Nos. CR,s. CR
• Citation: 888 S.W.2d 642,318 Ark. 764
• Parties: Teri BATES and Kelli Ogden, Petitioners, v. Andre E. McNEIL, Chancery Judge, Respondent. 94-74, CR 94-84.
• Court: Arkansas Supreme Court

Page 642

888 S.W.2d 642

318 Ark. 764

Teri BATES and Kelli Ogden, Petitioners, v. Andre E. McNEIL, Chancery Judge, Respondent.

Nos. CR 94-74, CR 94-84.

Supreme Court of Arkansas.

Dec. 5, 1994.

Sandra A. De Boer, Girffin J. Stockley, Little Rock, for petitioners.

Clint Miller, Acting Dep. Atty. Gen., Little Rock, for respondent.

HOLT, Chief Justice.

The petitioners, Teri Bates and Kelli Ogden (Woodruff), ask this court to issue a writ of prohibition against the respondent, Faulkner County Chancellor Andre E. McNeil, and in their petitions allege that the chancellor was wholly without jurisdiction to order that they be taken into custody by the Sheriff of Faulkner County. We granted Ms. Bates's request for temporary stay on January 31, 1994, and granted Ms. Ogden's kindred request on February 14, 1994, allowing all parties to brief the issue. Later, we permitted the petitioners to consolidate their pleadings since they presented the same question. Finding the trial court exceeded its jurisdiction, we treat the parties' petition as one of certiorari and grant the writs in their favor.

On March 10, 1992, Petitioner Kelli Ogden (now Woodruff) filed a petition in Faulkner County Chancery Court for an order of protection on behalf of herself against her husband, Bobby Ogden, alleging that he had threatened her life. After being assigned to Chancellor Andre E. McNeil's division, no further proceedings were had on the case.

On August 3, 1992, Petitioner Teri Bates filed a petition for an order of protection on behalf of herself and her minor children in Faulkner County Chancery Court against J.T. Bates, alleging domestic abuse, and later on the same date, the respondent, Chancellor Andre E. McNeil, issued an ex parte temporary order of protection. Following a hearing, the chancellor entered an order of protection on August 12, 1992, in which Ms. Bates was assessed and ordered to pay $84.25 in court costs within thirty days.

Nothing further transpired with reference to either petitioner until December 10, 1993, when the chancellor entered separate written orders for Ms. Bates and Ms. Ogden to appear in his court to show cause why each should not be held in contempt. The orders also directed that the sheriff take both parties into custody and keep them safely to appear on January 12, 1994, and provided that they could be admitted to bail upon each posting a $200 cash bond. The only difference in the two orders lay in the alleged basis for the contempt charge: Ms. Ogden had allegedly abused the court's process by causing the clerk to file a petition for order of protection without having completed the application process for obtaining the order, while Ms. Bates allegedly failed to pay court costs as ordered. Apparently, neither of these two orders were served, as identical orders were issued on January 13, 1994, again directing the sheriff of Faulkner County to take the respective parties into custody and keep them safely to appear before the court on March 30, 1994, unless the parties posted cash bonds in the amount of $200.00 each. A search of the record fails to reveal a return of these orders by the sheriff.

The petitioners have requested relief from the chancellor's orders to take them into custody of the Faulkner County Sheriff by way of a writ of prohibition. A more appropriate remedy exists in certiorari, for we have said that a writ of prohibition cannot be invoked to correct an order already entered, Wasson v. Dodge, 192 Ark. 728, 94 S.W.2d 720 (1936), and where, as here, the lower court's order has been entered without or in excess of jurisdiction, we can carve through the technicality and treat the application as one for certiorari. Arkansas Dep't of Human Servs. v. Templeton, 298 Ark. 390, 769 S.W.2d 404 (1989); Wasson, supra.

We discussed certiorari at length in Skokos v. Gray, No. 94-952 (November 7, 1994), and Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988), referencing our holding in State v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969):

Certiorari lies to correct proceedings erroneous upon the face of the record when there is no other adequate remedy. It is available in the exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. Certiorari lies where there is a want of jurisdiction or an act in excess of jurisdiction which is apparent on the face of the record. It is not available to look beyond the face of the record to ascertain the actual merits of a controversy, to control discretion, to review a finding upon facts or review the exercise of a court's discretionary authority.

Granted, disobedience of any valid order of a court having jurisdiction to enter it may constitute contempt, punishment for which is an inherent power of the court. Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991). It is also true that we basically review contempt proceedings under the rules and statutes pertaining to appeals, not by certiorari, as stated in Frolic Footwear, Inc. v. State, 284 Ark. 487, 683 S.W.2d 611 (1985). Here, however, we are confronted with a situation in which the chancellor has issued his orders citing the parties to show cause why they should not be held in contempt, while at the same time ordering them to be held in custody until the time set for their hearing unless released on a preset bond.

In Foreman v. State, 317 Ark. 146, 875 S.W.2d 853 (1994), we issued a writ of certiorari to require the trial judge to reconsider his setting of an appearance bond. We determined that the remedy of an appeal would have been useless because the petitioner would have had to remain incarcerated until tried without proper consideration of his request for release on bond, and granted certiorari where there was no other remedy or effective means of review. The same can be said here--an appeal would be useless as the parties could remain incarcerated until the time for their hearing, unless they were able to pay the cash bonds. In short, certiorari is the proper remedy.

The chancellor submits that his power to order Ms. Bates's and Ms. Ogden's arrests and custody in this situation is provided in Ark.Code Ann. § 16-10-106 (1987), which states...