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JEFF PORTER
ARKANSAS DEMOCRAT-GAZETTE
A couple of nervous youths stood before Marshall Municipal
Judge Jerry D. Patterson in March in Searcy County's small, neatly paneled
courtroom.
A boyfriend-girlfriend spat had gotten out of hand. The
young man had been charged with misdemeanor assault.
The boyfriend, 18, pleaded guilty. The girl, 14, repeated
her accusations under questioning from the judge. Two or three lawyers,
a couple of police officers and a few spectators -- including the mothers
of the accused and the accuser -- watched.
Patterson clearly found gaps in the stories of both parties.
The judge questioned them, made them squirm a little, then lectured them
like a parent might lecture his own children.
Calling the two mothers to the bench, Patterson, 54, turned
his lecture to courtesy. No restraining orders -- just an admonition for
their children to stay away from each other whenever it's possible and
to behave courteously whenever it's not. Patterson told them he'd dismiss
the case in a year if there was no further trouble.
Staying away from each other might be difficult in Marshall,
population 1,300, and Searcy County, population 7,600.
Patterson knows how hard it is to avoid conflict in a
small town. He was before the Arkansas Judicial Discipline and Disability
Commission in January, accused of allowing his private law practice to
interfere with his part-time judicial duties.
That can be a special problem in rural areas, in towns
with few lawyers where everyone knows everyone else, where judges sometimes
find themselves sitting in cases that involve people and issues that also
figure in their private practices.
The overwhelming majority of Arkansas' municipal judges
are part-time. They preside over traffic cases, misdemeanor criminal cases
and small civil cases. They also sign warrants and can take some preliminary
actions in felony cases.
From 1989-95, the judicial discipline commission got 204
complaints of conflict of interest by judges. It took action against five
judges, four of them part-time municipal judges. That's a small number,
but it accounts for more than 10 percent of the agency's total disciplinary
actions.
The problem existed before the commission was created
in 1988. In 1981, for example, the state Supreme Court Committee on Professional
Conduct scolded two Yellville lawyers because one was a part-time municipal
judge, and the other, his partner, was practicing in the judge's court.
This is the story of two judges -- Patterson and Jack
M. Lewis of Clinton -- and their conflicts. It illustrates how conflict
can grow out of seemingly innocent circumstances, decisions that at the
moment might have seemed harmless. And it shows how circumstances of conflict
can lead to darker suspicion -- justified or not.
With the judges' permission, the Arkansas Democrat-Gazette
reviewed
the commission's investigation files. Normally, the files are confidential.
AMBULANCES, LAWYERS
One judge's case began with the sound of sirens.
Lewis is the municipal judge in Clinton, the Van Buren
County seat. He supplements his $22,000 annual pay with work as a private
lawyer. In that role, he helped Don Galbraith of Clinton incorporate an
ambulance service. He also filed a Van Buren County Circuit Court civil
lawsuit against Wayne and Sheila Pruitt, owners of the competing service,
on behalf of a friend of Galbraith's.
The two ambulance services in Clinton -- population 2,300
-- were hotly competitive in 1992. A commission report says they "engaged
in 'racing' to an accident scene or other emergency, actually running one
another from the roadway in an attempt to beat the other ambulance to the
accident scene."
In January that year, the Pruitts sought a warrant for
Galbraith's arrest, accusing him of running their ambulance off the road
on the way to an accident. Galbraith disputed that account.
Lewis, citing a conflict of interest, declined to sign
off on the 1992 warrant. A judge from Conway later approved it. However,
when a friend of Galbraith's sought a warrant that April for Sheila Pruitt's
arrest for an alleged harassing telephone call, Lewis signed.
That, the commission found, was the conflict. "I went
ahead and signed it ... because it's going to be in court anyway. I saw
it as just administrative," Lewis told the commission during a 1993 hearing.
DOCUMENT DRAFTS
Patterson's story began in April 1994, when William Tidmore
broke Jack Wyatt's nose.
The incident happened at a party in Searcy County, and
Patterson, as municipal judge, approved a warrant for Tidmore's arrest
for third-degree battery.
About a week later, according to the judge, Wyatt came
to Patterson's law office just off Marshall's courthouse square and hired
Patterson to make Tidmore pay his medical expenses.
Patterson exchanged letters with Tidmore's lawyer that
spring and summer -- and then the problems began developing.
The April warrant apparently sat at the Searcy County
sheriff's office until August 1994, when -- in the middle of the mail negotiations
between Patterson and Tidmore's lawyer -- a deputy arrested Tidmore at
his home.
Sheriff's deputies told commission investigators that
the April-to-August delay wasn't unusual for the cash-strapped, shorthanded
department. Patterson said he had no control over the timing of serving
the warrant.
Tidmore showed up in municipal court on Aug. 24, 1994.
Patterson accepted his plea and recused, citing his conflict of interest.
There's some dispute as to whether Patterson set a date for Tidmore to
return to be tried by a substitute judge. That became a focal point of
the commission's investigation.
Tidmore insisted that he wasn't given a trial date. Patterson
and the court clerk, Burt Glenn, insisted that he was.
One municipal court record obtained by the commission
early in its investigation doesn't indicate that a court date was set.
Later, Patterson submitted another record, seemingly identical except that
it included a notation that a Sept. 28, 1994, court date had been set.
Glenn, now the mayor of Marshall, said the records were
different because he had used two copies of the same document -- one as
a working version and the other as a final version. The notations are handwritten.
The commission found that explanation lacking. Executive
Director James A. Badami, during a hearing in January, said the handwriting
on the two documents matched exactly -- except for the trial date notation
that only appeared on the second record.
A written report was more blunt. The report, filed after
commission investigator Denny E. Reynaud interviewed Glenn and others,
says it "appears the court records were altered to reflect that an appearance
date was given Tidmore at his first appearance."
Glenn and Patterson denied altering court documents. Glenn,
who as a clerk was not under the commission's jurisdiction, called the
accusation "manufactured" out of twisted facts.
Patterson said in an interview that he doesn't understand
the suspicion. "And let me tell you why. The reason is, and I know this
is going to sound self-centered, I do my damnedest to do as good a job
as I possibly can. I don't do it out of the need for money. I do it out
of a sense of community."
Patterson contended that the commission staff, searching
for a conspiracy, had unnecessarily dragged the clerk, the sheriff's office
and the prosecuting attorney's office into the investigation.
Badami says the commission has to examine information
that raises questions. He told Patterson in the January hearing that "when
we just get documents and we're not aware of what goes on in your court
and we try to make them all mesh, sometimes it's just difficult to come
to a logical conclusion other than somebody has changed documents."
Even though Patterson had recused, Tidmore's name showed
up on the computer-generated list of cases to be heard by the court Sept.
28, 1994. Tidmore wasn't there; neither was his attorney. Patterson says
a special judge could have been chosen from among the lawyers present in
court that day.
That's when Patterson, in the commission's judgment, made
his mistake.
He and Glenn, the court clerk, discussed issuing an arrest
warrant. But instead, Patterson decided to issue an order for Tidmore to
appear in court and show why he shouldn't be held in contempt. The order,
mailed to Tidmore, warned that Tidmore could be arrested and held without
bond until the next court session.
That language is partly what prompted Tidmore and his
wife, Jennifer, to file a complaint with the commission.
Patterson says the order is a form, containing routine
language, and is no different from any other order to appear.
The commission decided in January 1997 -- more than two
years after the complaint was filed -- to admonish Patterson for the conflict
of interest. It held that Patterson shouldn't have issued the order.
At the time, Patterson conceded to the commission that
"I may have erred in thinking that administratively I could continue to
control and maintain my docket as long as I didn't listen or hear and make
any decisions concerning the merits of the charges against Mr. Tidmore."
In an April interview, Patterson said he sees the commission's
view as technical, not practical, as it relates to small-town life and
small-town justice.
"I know I'm bound by the same rules as the big judges
and the better-paid judges who have better facilities, but I have to work
within the realm of practicality," he said.
PART-TIME DISPUTE
Both Patterson and Lewis say their experiences show the
advantage of eliminating part-time judgeships.
"I'm honestly beginning to think that there shouldn't
be such an animal because, under these canons, we have to be more cautious
than other judges," Patterson told commissioners during the January hearing.
Many Arkansas judges and lawyers have urged that part-time
judgeships be converted to full-time, even if it means having the judgeships
cover more than one county. Harry Truman Moore of Paragould, president
of the Arkansas Bar Association, believes that would eliminate the problems
that municipal judges like Patterson and Lewis faced.
Not everyone agrees. The president of the Arkansas Municipal
Judges Council sees value in part-time judges, close to their communities.
"In most cases, people sitting as judges are residents of the community
they serve," said Brinkley Municipal Judge John Martin. "Obviously, they're
going to be sensitive to issues that are important to their locality."
It's possible for judges to deal with conflict of interest
by being careful, he said.
But Jack Holt Jr., a retired state Supreme Court chief
justice, believes actual conflict isn't the only worry.
"Even if a problem's not there, the appearance is that
there is a problem, and that makes people suspect, and that just damages
the system," he said.
The Patterson and Lewis investigations illustrate Holt's
concern.
The commission scrutinized the actions of the judges who
stood in for Lewis and Patterson, looking for evidence that they gave favorable
treatment to the clients of their fellow judges.
As it happened, Lewis, the Clinton municipal judge, agreed
to hear the case against Tidmore. Lewis and Patterson work in adjoining
counties.
Lewis ordered Tidmore to pay restitution to Patterson's
client, Wyatt. He later entered a civil suit judgment against Wyatt, who'd
been sued because he didn't pay his medical bills.
When the commission asked about the sequence of events,
Lewis said he never discussed the case with Patterson. In a later interview,
he said that he hadn't been trying to do a favor for Patterson's client
by delaying the civil suit until Wyatt had the restitution money.
"The person that causes it, the restitution's going to
be part of his sentence," Lewis said. "Where I feel like there was no excuse
whatsoever to do this damage, he's going to pay for it."
CHARGE DISMISSED
Lewis' own conflict of interest led to questions about
the eventual handling of the case by Municipal Judge Scott Adams of Morrilton,
who took over after Lewis recused. Adams is from Conway County, adjacent
to Lewis' Van Buren County.
Adams dismissed the reckless driving charge against Galbraith,
Lewis' client. The last docket entry in the case against Galbraith's competitor,
Shirley Pruitt, says Adams was going to ask the state Judicial Department
to appoint still another judge to hear her case, which has not yet been
resolved.
Investigator Reynaud, in a 1993 report, noted that by
not convicting Galbraith of reckless driving, Adams was in effect helping
him stay in the ambulance business.
"Judge Adams denies that there is an unwritten agreement
between the municipal judges in his area of responsibility to take care
of each other's private clients when sitting on the bench for each other
because of a previous or current attorney-client relationship," Reynaud
wrote. Lewis denied it too, the investigator wrote.
Indeed, the investigation file noted there was "no documentary
evidence" of such an agreement.
Adams said his dismissal of the charge against Galbraith
was routine. "There's a statute that allows a judge to take a traffic offense
under advisement for a period of one year, and if no other offense has
occurred, dismiss it, and I think that's what happened in Mr. Galbraith's
case," Adams said. "I do that a lot with people who depend on their ability
to get clearance to drive to make a living."
Adams, too, has been admonished by the commission -- in
1991 for delaying a decision in a case for 19 months and in 1995 for failing
to pay his attorney license fees for three years.
The cases in Patterson's and Lewis' courts were minor,
but the commission spent over a year investigating Lewis and over two years
investigating Patterson. Said Badami: "I owe you and the general public"
a thorough investigation when judges are accused of violating their code
of conduct.
That code of conduct covers almost 180 part-time municipal
and city court judges, most of whom also have private law practices. Keith
Caviness, staff attorney with the state Administrative Office of the Courts,
said he knew of only four municipal judgeships that are, by law, full-time:
Pulaski County, Hot Springs, Fort Smith and Jonesboro.
If Arkansas had no part-time judges, then Patterson and
Lewis would not have had private clients, and thus no opportunity for conflict.
That would also have been true for Marcia Brinton of Fayetteville, a part-time
small claims judge cited in 1993 for a "possible violation" because of
a conflict involving two clients. And for former Berryville Municipal Judge
Paul Jackson, who resigned in 1990 during an investigation into allegations
that he, among other things, served as judge and attorney in the same case.
Another judge disciplined for a conflict of interest was
Appeals Court Judge Olly Neal, who was admonished in January for presiding
over a former law partner's disbarment hearing. At the time, Neal was a
circuit judge serving in Marianna.
While the admonition of Neal shows that full-time judges
aren't immune to conflicts of interest, their part-time colleagues face
greater day-to-day danger.
"I don't think there's any question that a full-time judiciary
is the way to go," said Jeffrey M. Shaman, a professor at the DePaul University
College of Law and a senior fellow at the American Judicature Society,
a clearinghouse for information on judicial conduct and ethics.
Holt, the retired chief justice, concurs. "I was a strong
advocate and still am for full-time judges -- no part-time judges," he
said. "Everybody full-time -- you're either a judge or not a judge. That's
really the way it ought to be."
This article was published on Monday, May 5, 1997