New judge sought in case on asphalt

— CONWAY - Attorneys for Faulkner County Administrator Jeff Johnston asked the Arkansas Supreme Court on Tuesday to order that his criminal case be randomly assigned to a judge rather than stay in Circuit Judge Rhonda Wood’s court.

Johnston, 37, was charged in August with felony theft of property because authorities contend he paid for an asphalt project on his private driveway with county money. Johnston, who has continued to work for the county, has said he is innocent.

Wood, who handles mostly juvenile-court cases, signed an arrest warrant and a felony information for Johnston on Aug. 20. On Aug. 21, the felony information, an affidavit and an accompanying order in which Wood accepted jurisdiction in the case were filed simultaneously, the defense attorneys said.

In the order, Wood said another circuit judge had referred the matter to her division. The prosecutor’s office has said that judge was Charles Clawson Jr.

“The explanation was that the other judges have to rely on the county administrator for budget issues,” Wood wrote. “The belief was that this division would be more appropriate due to Judge Wood leaving for the Court of Appeals.”

In the Supreme Court filing, defense attorneys Jeff Rosenzweig and Joe Don Winningham said Wood did not identify who gave the “explanation.” “There is no written referral from Judge Clawson,” they wrote.

The attorneys contended that an administrative plan for the 20th Judicial District, which is on file with the Supreme Court, provides that all new filings in criminal cases not involving minors are to be randomly divided equallybetween Clawson and Circuit Judge David Reynolds.

The case was never taken to Reynolds, and no random assignment ever took place, the attorneys wrote.

Johnston is scheduled for trial Dec. 6-7. Wood leaves for the Arkansas Court of Appeals in January, and Reynolds moves to Faulkner County District Court then.

The new administrative case plan will provide that Clawson and Circuit Judge Michael Maggio split the criminal docket equally starting in January, the defense attorneys wrote.

Further, they argued, “This case is not a transfer from Judge Clawson to some other judge for the simple reason that until 10:08 a.m. on August 21 it had not been filed. There simply was nothing to transfer.”

They also said that when Winningham challenged the assignment to Wood, she levied sanctions against him.

“Those sanctions are being appealed separately,” the attorneys wrote.

“Judge Wood cannot evade the clear dictates of the [judicial district’s administrative] plan and simply assert jurisdiction in derogation of the assignment plan and in the absence of any recusal order by” Clawson or Reynolds, the attorneys said.

“No matter how Judge Clawson’s hesitation [at signing the warrant] is interpreted - as a recusal or not - nothing was presented to Judge Reynolds. Nothing was ever drawn [for random assignment] by the circuit clerk,” they added.

They also pointed to case law, which they contended shows “that no circuit judge can simply assert jurisdiction in violation of the case assignment plan.”

Prosecuting Attorney Cody Hiland said Tuesday that he would reserve any comment for the written response when it is filed in court.

Northwest Arkansas, Pages 14 on 11/14/2012

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