{ "id": 2648146, "name": "Tom ALLEN v. The Honorable Keith RUTLEDGE, Judge; Kenneth Lavigne; Cynthia M. Lavigne", "name_abbreviation": "Allen v. Rutledge", "decision_date": "2003-12-18", "docket_number": "03-330", "first_page": "392", "last_page": "406", "citations": [ { "type": "official", "cite": "355 Ark. 392" }, { "type": "parallel", "cite": "139 S.W.3d 491" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "236 Ark. 750", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1681370 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "755" }, { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/ark/236/0750-01" ] }, { "cite": "273 U.S. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6142780 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/us/273/0510-01" ] }, { "cite": "267 U.S. 517", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6143413 ], "year": 1925, "pin_cites": [ { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/us/267/0517-01" ] }, { "cite": "348 U.S. 11", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6930573 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/us/348/0011-01" ] }, { "cite": "287 Ark. 221", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1876567 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/ark/287/0221-01" ] }, { "cite": "456 U.S. 844", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6192085 ], "year": 1982, "pin_cites": [ { "page": "857-858" } ], "opinion_index": 0, "case_paths": [ "/us/456/0844-01" ] }, { "cite": "470 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299693 ], "year": 1985, "pin_cites": [ { "page": "573-574" } ], "opinion_index": 0, "case_paths": [ "/us/470/0564-01" ] }, { "cite": "496 U.S. 384", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12123482 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "400-401" } ], "opinion_index": 0, "case_paths": [ "/us/496/0384-01" ] }, { "cite": "321 Ark. 150", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449590 ], "weight": 3, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0150-01" ] }, { "cite": "309 Ark. 192", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906105 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0192-01" ] }, { "cite": "822 S.W.2d 842", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1992, "opinion_index": 0 }, { "cite": "307 Ark. 558", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902395 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/307/0558-01" ] }, { "cite": "980 S.W.2d 826", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1995, "opinion_index": 0 }, { "cite": "335 Ark. 163", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862745 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/335/0163-01" ] } ], "analysis": { "cardinality": 1062, "char_count": 26895, "ocr_confidence": 0.712, "pagerank": { "raw": 9.11516285603474e-08, "percentile": 0.5068863088156877 }, "sha256": "596853192277486e993aea2cec32e9a011afd8824720b6092c3297f48dc1f559", "simhash": "1:57169124a931417a", "word_count": 4681 }, "last_updated": "2023-07-14T22:11:14.990404+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, J., dissents." ], "parties": [ "Tom ALLEN v. The Honorable Keith RUTLEDGE, Judge; Kenneth Lavigne; Cynthia M. Lavigne" ], "opinions": [ { "text": "W.H. \u201cDub\u201d Arnold, Chief Justice.\nThis 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\u2019s power to regulate the practice of law. Ark. Sup. Ct. R. 1-2(a)(5). We reverse and remand.\nFacts\nOn 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\u2019s removal from the case based upon an \u201cappearance ofimpropriety and an appearance of partiality.\u201d 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\u2019s former law partner and now a court of appeals judge; (2) the trial judge had made a comment in response to plaintiffs counsel as to alimony case law that \u201cdefendant\u2019s counsel would probably be happy with that amount;\u201d (3) that alimony and child support constituting fifty-six percent of take home pay was unconscionable; (4) that the trial judge\u2019s refusal to decide custody according to the best interests of the children; (5) a statement by the trial judge earlier in the day that \u201cI can do anything I want to. I\u2019m the judge\u201d and, (6) comments by the trial judge including \u201cunfortunately sometimes you have to pay through the nose when you screw up.\u201d Allen argued by noting that the size of the alimony payments together with the judge\u2019s 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.\nOn 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 \u201cpursuant to the request of the trial judge;\u201d (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\u2019s ruling contained no request for preparation of a precedent.\nMs. Grady filed a response and briefin support to the motion to recuse. Grady conceded that Judge Rutledge had called her \u201cJo Hart Jr.,\u201d 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\u2019s allegations were sanctionable under Rule 11; however, Grady failed to present a formal motion.\nOn 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:\nThe Court: Okay. Now those are the two motions pending in this motion on the recusal. I\u2019m going to state for the record that sometime prior to Ms. Grady furnishing me with the prep \u2014 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 \u2014 I don\u2019t think I\u2019d 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\u2019s the only communication that I\u2019ve ever had and there\u2019s no evidence to the contrary in this record. Now, as it relates to the \u2014\nMr. Allen: May I inquire of the Court?\nThe Court: What?\nMr. Allen: I \u2014 I need to ask you a question.\nThe Court: What are you going to ask me?\nMr. Allen: The letter dated October 11th that was delivered to my office was \u2014\nThe Court: Mr. Allen, do you have a question?\nMr. Allen: Yes, sir.\nThe Court: What is it?\nMr. 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: \u201cDear Judge Rutledge: Pursuant to your request \u2014\u2019\u2019Was that made before the \u2014\nThe Court: I just told you, Mr. Allen. I just answered that question and it\u2019s \u2014\nMr. Allen: No. My \u2014 my question to you \u25a0\u2014\nThe Court: Well, I \u2014 I\u2019m not going to sit up here and \u2014\nMr. Allen: \u2014 is, was your request before or after you received the Motion to Recuse?\nThe Court: I don\u2019t know. I don\u2019t know, Mr.Allen, but I\u2019ll tell you this. I\u2019m not up here to answer your questions.\nMr Allen: Well, Judge, I think-\u2014\nThe Court: I\u2019m not up here to answer your questions. I just told you, I don\u2019t recall, but I do recall that I didn\u2019t talk to Jerrie Grady, okay.\nMr. Allen: Well \u2014\nThe Court: That\u2019s the end of that discussion. Now, let\u2019s go on back to your original motion. And \u2014\nMr Allen: Was it \u2014 was it \u2014\nThe Court: \u2014 besides that, even if I had talked to her and said prepare this, it\u2019s not \u2014\nMr. Allen: Judge, was the suggested precedent hand-delivered to your office on Friday afternoon?\nThe Court: I have no idea. I wasn\u2019t there. And I wasn\u2019t there on the 14th or \u2014\nMr. Allen: Well, would you \u2014\nThe Court: \u2014 the 15th either, Mr. Allen, like you\u2019ve alleged, okay.\nMr. Allen: Did you instruct Ms. Grady to give me a letter that I am to immediately notify the Court?\nThe Court: Mr. Allen, sit down. I\u2019m not up here to answer your questions, okay. You had your opportunity to put on evidence.You didn\u2019t take it. Sit down. Okay.\nMr. Allen: Well, Judge, okay.\nThe Court: All right, on \u2014 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\u2019s no evidence in this record that\u2019s been offered, okay As it relates to my comments about Jo Hart, I \u2014 I don\u2019t know that that\u2019s important. I may or may not have said that. I don\u2019t think it shows anything other than an aggressive part \u2014 and I don\u2019t know that it was fondly. Fondly is a word I wouldn\u2019t necessarily use. But I do want to go to \u2014 and so I\u2019ll take care of that.\nMr. Allen: What?\nThe Court: That \u2014\nMr. Allen: What on \u201cd\u201d?\nThe Court: \u2014 that \u2014 Mr. Allen, do you have something that you want to say. I\u2019m going down through here \u2014\nMr. Allen: I\u2019m trying to understand what you\u2019re saying.\nThe Court: You put on no evidence whatsoever, okay. Do you understand that? You have put on no evidence.\nMr. Allen: Well, Judge, the record will bear it out though, right?\nThe Court: Now, let \u2014 well, Mir. Allen \u2014\nMr. Allen: Judge, you know whether or not you made that statement.\nThe Court: I don\u2019t know that I made that statement, but if I did, so what? That\u2019s my point. The second number(b), I don\u2019t know what that means. It \u2014 I don\u2019t know what it means. It doesn\u2019t show anything. It \u2014 it\u2019s \u2014 of a recusal nature. An unconscionable amount of alimony is something that you can appeal, if you feel like it\u2019s unconscionable. That\u2019s an appellate decision, not a \u2014\nMr. Allen: I understand that.\nThe Court: \u2014 Motion for Recusal. The \u2014 whether or not the Court properly followed the law as it relates to change of custody, that\u2019s an appealable issue, not something that the \u2014 this Court\u2019s going to recuse on. The statement that you \u2014 and this is a cheap shot, Jr. Allen, and I will state it for the record, it\u2019s a cheap shot. You put in here that the Trial Judge\u2019s statement earlier in the day in the courtroom,prior to hearing his case, that,\u201cI can do anything I want to. I\u2019m the Judge,\u201d 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 \u2014 at your request I got those children back for you that day \u2014\nMr. Allen: That\u2019s \u2014 that\u2019s not what happened.\nAfter some more discussion, Judge Rutledge then ruled in the following way:\nThe Court: Now, on these two motions, I\u2019m going to deny both motions, but I want to read you what Rule 11 says because I think that\u2019s significant in this case, \u2018cause I think especially on the Lavigne case \u2014 I think it\u2019s just atrocious that you would file these allegations where there\u2019s no factual bases for any ofthem.\u201cThe\u201d\u2014 Rule 11 says in part: \u201cThe 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 or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader. If a pleading, motion or other paper is signed in violation of this Rule, the Court upon motion or upon it\u2019s own initiative shall impose upon the person who signed it, a represented party or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney\u2019s fee.\u201d Subparagraph (b): \u201cA motion for sanctions under this rule shall be made separately from other motions.\u201d And \u2014 and I can do that on my own. \u201cAnd it shall be served on the proper person.\u201d And I\u2019m doing that on you today, Mr. Allen.\nMr. Allen: Serving what?\nThe Court: \u201cBut shall not be filed with or presented to the Court unless, within twenty-one days after service of the motion or such other period as the Court may prescribe, the challenged paper, claim, defense, contention, allegation or denial is not withdrawn or appropriately corrected.\u201d Now, you heard me go through your motion especially in the Swaims case and you heard \u2014 you know that those allegations are false on their face, that I communicated with Ms. Grady in that case on the 12th of September [sic], or anytime thereabouts, or on the 14th or 15th of October.You know that to be false.\nMr. Allen: No, I do not know that.\nThe Court: You have stated that and you have offered no evidence of that.\nMr. Allen: I do not know \u2014 under the \u2014 under the Code judge\nThe Court: Well \u2014\nMr. Allen: \u2014 well, wait a minute. Let me say something.\nThe Court: No.\nMr. Allen: Under \u2014 under \u2014 under the Code as it pertains to ex-parte communications, a Judge must disclose to all parties all ex-parte communications.\nThe Court: I know the law. Okay, since you brought that up \u2014\nMr. Allen: And that\u2019s what \u2014\u2022 that\u2019s what I was going to ask you to do today.\nThe Court: Well, I did.\nMr. Allen: But the only way I can do it \u2014\nThe Court: I did that, Mir. Allen. I just did it.\nMr. Allen: .1 \u2014 I \u2014\nThe Court: I told you there were none. Now, but since you brought that up, this is why I asked you about the Wood \u2014 the Woodall case \u2014\nMr. Allen: Right, I know that it\u2019s on there.\nThe Court: You know \u2014 you know yourself, you\u2019ve had ex-parte communication to the Court. It\u2019s right there in black and white.You did not furnish that to Ms. Grady. You told the Court you weren\u2019t furnishing it to Ms. Grady.\nMr. Allen: That\u2019s right.\nThe Court: And that is a violation of\u2014 if there ever was one, okay.You\u2019re the one that initiated that ex-parte communication, not me, not Ms. Grady, not anybody else and you know that. So I don\u2019t want to hear \u2014 if you\u2019ve got some evidence that I have communicated with Ms. Grady on any of this stuff, other than to direct her office to furnish me a precedent in a case that she won, I \u2014 I want to \u2014- you have had your opportunity and you have presented no evidence.\nMr. Allen: Well, that \u2014 that ex-parte communications made by the Court are strictly within your knowledge and I understand the code of Judicial Conduct to provide that \u2014 that those have to be disclosed by this Court.\nThe Court: And I\u2019ve done that.\nMr. Allen: Well, I didn\u2019t know what it was until I got here, Judge.\nThe Court: You made an allegation \u2014\nMr. Allen: I did.\nThe Court: You stated on your face that I did that.\nMr. Allen: I did.\nThe Court: That is false allegations.\nMr. Allen: Well, Judge \u2014\nThe Court: I\u2019m giving you the opportunity, Mr. Allen, to withdraw that pleading. If you don\u2019t want to do that, because you put on absolutely no evidence to that, that\u2019s fine with me. I will address that at the proper time. But right now, you have no evidence. I have stated \u2022 \u2014 just because you make a \u2014 a brass [sic] allegation that the Court\u2019s talking to all these lawyers doesn\u2019t mean I have to come in here and \u2014 and outline to you everything I do. I don\u2019t know where you\u2019re coming from, but I can assure you this, that on , October the 14th and 15th I was with my wife and daughter in Virginia and Washington, D.C., and I wasn\u2019t communicating with Ms. Grady.\nMr. Allen: Well, on \u2014\nThe Court: On September the 12th [sic], I wasn\u2019t communicating and you\u2019ve alleged that, and I\u2019m asking you if you want to withdraw it, fine. If you don\u2019t, we\u2019ll take up the sanctions, all right. Now, anything else.\nMr. Allen: No.\nThe Court: Okay. Ms. Grady, fix me an order on both of those, and on the \u2014 on these, not the Lavigne case, but that other case, \u25a0 the Greenway v. Swaims case, I\u2019m going to hold that.You fix me up one on Lavigne, all right.\nMs. Grady: This is an order denying his Motion for Recusal.\nThe Court: Uh hum. Mr. Allen, we\u2019re not through yet.\nMr. Allen: Pardon?\nThe Court: Are you leaving?\nMr. Allen: No, I thought we were through.\nThe Court: Okay. All right. I\u2019m going to give you ten days to decide what you want to do on those motions. Okay. I\u2019m going to shorten that twenty-one to ten days and you can decide what you want to do.\nMr. Allen: You mean about withdrawing my Motion to Recuse. Is that what you\u2019re referring to?\nThe Court: Uh hum. And your allegations in those motions, that\u2019s right.\nMr. Allen: Well, I\u2019ll \u2014 I\u2019ll visit with some counsel \u2014\nThe Court: Yeah, okay. All right.\nMr. Allen: \u2014 and advise the Court accordingly.\nThe Court: Okay.\nMr. Allen: When is that decree doing to be filed of record?\nThe Court: When I sign it. Okay.\nAllen failed to file a document withdrawing any allegation. Judge Rutledge then issued an order imposing sanctions .\nAllen now brings five points on appeal: (1) whether the imposition of sanctions should be reversed because the notice to Allen was not in writing; (2) whether, even if oral service of a Rule 11 warning is sufficient in some instances, the complaint was not specific enough to properly apprise Allen of the alleged misconduct, and the incongruity between the notice and the order imposing Rule 11 sanctions requires reversal; (3) whether the trial court should recuse from deciding sanctions; (4) whether Allen\u2019s conduct meets the criteria for imposition of Rule 11 sanctions; and, (5) whether the sanctions order specifies why the amount of the sanction is $500.\nRule 11(b) of the Arkansas Rules of Civil Procedure states:\n(b) A motion for sanctions under this rale shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (a). It shall be served as provided in Rule 5 but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney\u2019s fees incurred in presenting or opposing the motion.\nStandard of Review\nThe imposition of sanctions is a serious matter to be handled with prudence, and the trial court\u2019s decision is due substantial deference. Williams v. Martin, 335 Ark. 163, 980 S.W.2d 826 (1995); Jenkins v. Goldsby, 307 Ark. 558, 822 S.W.2d 842 (1992). This court reviews a trial court\u2019s determination of whether a violation of this rule occurred under an abuse-of-discretion standard. Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992). In deciding an appropriate sanction, trial courts have broad discretion not only in determining whether sanctionable conduct has occurred, but also what an appropriate sanction should be. Crockett & Brown v. Wilson, 321 Ark. 150, 901 S.W.2d 826 (1995).\nAllen argues that this abuse-of-discretion standard should be modified, \u201csince if the trial court finds that Rule 11 criteria have been met, the court has no discretion in assessment of sanctions.\u201d Crockett & Brown, supra. Allen avers that this court should analyze questions of law de novo and that underlying factual determinations should be subject to the clearly erroneous standard under Rule 52 of the Arkansas Rules of Civil Procedure.\nHowever, the United States Supreme Court has analyzed review standards for Rule 11 cases, and it supports the use of the abuse-of-discretion standard finding is best suited to address Rule 11 situations given the close interplay between factual and legal issues. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, (1990). The United States Supreme Court wrote:\nThe Circuits also agree that, in the absence of any language to the contrary in Rule 11, courts should adhere to their usual practice of reviewing the district court\u2019s findings of fact under a deferential standard. See Fed. Rule Civ. Proc. 52(a) (\u201cFindings of fact... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses\u201d). In practice, the \u201cclearly erroneous\u201d standard requires the appellate court to uphold any district court determination that falls within a broad range of permissible conclusions. See, e. g., Anderson v. Bessemer City, 470 U.S. 564, 573-574 (1985) (\u201cIf the district court\u2019s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder\u2019s choice between them cannot be clearly erroneous\u201d); Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 857-858 (1982). When an appellate court reviews a district court\u2019s factual findings, the abuse-of-discretion and clearly erroneous standards are indistinguishable: A court of appeals would be justified in concluding that a district court had abused its discretion in making a factual finding only if the finding were clearly erroneous.\nCooter & Gell, 496 U.S. at 400-401.\nRecusal from Determining Sanctions\nAllen argues for his third point on appeal that the trial judge should have recused from deciding sanctions. We agree. For the purposes of this particular case, we hold that Judge Rutledge should have recused from deciding sanctions. Therefore, this court need not reach the merits of the other points on appeal.\nIn Clark v. State, 287 Ark. 221, 697 S.W.2d 895 (1985) this court held:\nThese remarks indicate that the judge became \u201cembroiled in a personal dispute\u201d, Meyer, supra, with the appellant. Even though the judge\u2019s objectivity may not have been affected by the appellant\u2019s attack, \u201cjustice must satisfy the appearance of justice.\u201d Offutt v. United States, 348 U.S. 11 (1954). Accordingly, the trial judge under these circumstances should have recused from hearing the contempt charge. As stated by Chiefjustice Taft in Cooke v. United States, 267 U.S. 517, 539 (1925):\n[A]ll of such cases.. .present difficult questions for the judge.All we can say on the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private rights, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place.\nBy our holding we do not intend that all contempts not committed in the immediate view and presence of the court, must be tried by a third party. But where a direct personal attack is made on a judge which is the subject of a contempt charge by that judge, or contemptuous conduct occurs which necessitates a factual hearing on the allegations made against the judge (as seems to have been contemplated in this case), to ensure a fair and impartial hearing the judge must recuse.\nClark, 287 Ark. at 227. Here, Judge Rutledge was required to recuse from the Rule 11 sanction issue because of his obvious bias toward Allen. Due process requires not only that a judge be fair, but that he also appear to be fair. Turney v. Ohio, 273 U.S. 510 (1927). The colloquies in this case demonstrate the wisdom of the Clark rule, because Judge Rutledge misread, at least the second motion to recuse, and repeatedly shut Allen off when Allen sought answers to his questions.\nIn Bennett v. NAACP, 236 Ark. 750, 755, 370 S.W.2d 79, 82 (1963), this court stated, \u201cOur form of government guarantees to all of us the right of free and uninhibited access to the judiciary, and this certainly implies that we must not be so fearful of every day and common acts that this access to the judiciary is actually fettered because of fear.\u201d Further, Article 2, \u00a7 4, of the Arkansas Constitution states:\nThe right of the people peaceable to assemble to consult for the common good, and to petition, by address or remonstrance, the government, or any department thereof, shall never be abridged.\nRule 11 is employed to sanction attorneys who have unjustifiably failed to carry out a responsibility as an officer of the court. A criminal contempt citation may be used to penalize attorneys and nonattorneys alike for an insult to the authority of the court. In this case, Judge Rutledge should have recused from deciding the sanction issue. His comments and rulings indicate that he was biased. During the hearing on the recusal motions, Judge Rutledge stated, \u201cI\u2019m not up here to answer your questions,\u201d and prior to the hearing referred to Ms. Grady as \u201cJo Hart Jr.,\u201d a former law partner of Judge Rutledge, and, \u201cI can do anything I want to. I\u2019m the Judge.\u201d These remarks, along with the overall biased tone ofjudge Rutledge\u2019s comments, indicate that he should have recused himself from hearing and deciding the Rule 11 sanctions issue.\nReversed and remanded.\nGlaze, J., dissents.", "type": "majority", "author": "W.H. \u201cDub\u201d Arnold, Chief Justice." }, { "text": "Tom Glaze, Justice,\ndissenting. This case troubles me because the underlying divorce decree between the divorcing parties, Cynthia M. Lavigne and Kenneth Lavigne, has not been appealed. This is true even though the allegations contained in Kenneth\u2019s motion to recuse allege the misconduct of Circuit Court Judge Keith Rutledge. The motion further alleges that Judge Rutledge showed his appearance of impropriety or bias when rendering the Lavignes\u2019 divorce. The allegations Kenneth\u2019s attorney alleged as the basis of his recusal motion are as follows:\na. That during the trial of this cause the Court fondly referred to counsel for the plaintiff as Jo Hart, Jr., the Judge\u2019s former law partner, and now a Court of Appeals judge.\nb. That near the conclusion of the trial of this cause plaintiff s counsel commented to the Court that she had found a case wherein the amount of alimony to be determined by the trial court by accounting the parties seeking alimony as two (2) dependents under the Arkansas Family Support Chart to which the Judge commented that defendant\u2019s counsel would probably be happy with that amount.\nc. The unconscionable amount of alimony awarded when coupled with the amount of child support awarded constitutes 56% of defendant\u2019s take-home pay.\nd. The refusal of the Court to decide the custody issue on the best interest of the children having announced in the pre-trial conference immediately prior to the hearing that the Court would not place the children with the defendant while he was residing with another woman, thereby foregoing a decision based on the \u201cbest interest\u201d of the children.\ne. The trial judge\u2019s statement earher in the day in the Courtroom prior to hearing this case that \u201cI can do anything I want to, I\u2019m the judge.\u201d\nf. The trial judge at the conclusion of the trial stated as follows:\nOkay, here\u2019s what we\u2019re going to do. In addition I think she\u2019s entitled to alimony and I think he\u2019s going to have to pay and \u2014 and unfortunately sometime you have to pay through the nose when you screw up, okay. I mean that\u2019s just the way life is. When you \u2022\u2014 if you want more than you\u2019ve got sometimes you have to pay. (Emphasis added.)\nWhile counsel for Kenneth contends that it appears Judge Rutledge\u2019s bias has affected his decision rendered in the parties\u2019 divorce, Kenneth has not appealed the divorce decree. Rather, this court is given snips and pieces of the colloquy between Kenneth\u2019s attorney, Tom Allen, and the judge. Obviously, without the record before us, it is impossible to determine whether the charges made by Kenneth are valid, warranted by law, or a good-faith argument.\nIt is Kenneth\u2019s and his counsel\u2019s burden to show error on appeal, and, in my view, they have failed to provide a full record upon which this court can decide the validity of their allegations. Therefore, the appeal should be dismissed. I do wish to point out that I believe Mr. Allen and Judge Rutledge entered into a discourse that did not exemplify the appropriate conduct or demeanor established in either the Rules of Professional Conduct or the Arkansas Code ofjudicial Conduct. Perhaps the issues raised by counsel and the judge should be dealt with in those two venues.", "type": "dissent", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Jeff Rosenzweig, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Jill Jones Moore, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Tom ALLEN v. The Honorable Keith RUTLEDGE, Judge; Kenneth Lavigne; Cynthia M. Lavigne\n03-330\n139 S.W.3d 491\nSupreme Court of Arkansas\nOpinion delivered December 18, 2003\nJeff Rosenzweig, for appellant.\nMike Beebe, Att\u2019y Gen., by: Jill Jones Moore, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0392-01", "first_page_order": 416, "last_page_order": 430 }