Did the Committee decide whether a judge’s past public remarks required blanket recusal from future cases involving particular litigants?

Plain-English summary

A chancery judge asked whether a press release criticizing a federal consent decree and related disputes with litigants required his recusal from future cases. The Committee separated that question from the past release and pending recusal motions.

It said the past release belonged to the Judicial Discipline and Disability Commission, and pending motions belonged in the chancery court with appellate review. It declined to answer the future and blanket-recusal questions because disqualification was a legal issue for adversarial proceedings, not prospective committee advice.

Currency note

This opinion predates the Arkansas Code of Judicial Conduct that took effect July 1, 2009, as stated in JEAC Opinion 2009-04. Later rules and opinions may have changed the analysis. Treat this page as historical context and verify the current Code before relying on a specific rule.

Common questions

Q: Did the Committee decide whether the press release itself was proper?

A: No. It said past conduct fell within the disciplinary commission’s domain.

Q: Did it issue a blanket recusal ruling for future cases?

A: No. It said future disqualification questions should be raised in court and, when appropriate, reviewed on appeal.

Background and rules framework

The opinion cited then-current Canons 3(C) and 2 and Matthews v. Rodgers in discussing bias and disqualification, while declining to resolve the requested future recusals.

Citations and references

• Arkansas Code of Judicial Conduct Canons 3(C) and 2.
• Matthews v. Rodgers, 279 Ark. 328, 651 S.W. 2d 453 (1983).

See also

No sibling opinions yet indexed.

Source

• Landing page: https://jddc.arkansas.gov/opinions/opinion-no-91-06/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

January 8, 1992

Honorable Lawrence E. Dawson

Chancery and Probate Judge

Jefferson County Courthouse, Suite 104

Pine Bluff, AR 71601

RE: Advisory Opinion # 91-06

Majority Opinion

Dear Judge Dawson:

Your November 14, 1991 request for an ethical opinion stated that, following the Consent Decree in Hunt v. State of Arkansas, PB-C-89-206, signed by United States District Judge Henry Woods on November 7, 1991, you issued a press release. In it you criticized the decree which resolved a Voting Rights Act challenge to judicial districts, you announced your intention to run for re-election in 1992 in the newly created sub-district, and you commented on race relations in your judicial district.

On November 12, Eugene Hunt, the lead plaintiff in Hunt, hand-delivered to you a letter containing his response to your press release. On November 13, Eugene Hunt and his law partner, Lisa Kelly (the attorney who represented Hunt in the federal action), filed motions for recusal in two pending cases and Ain all other cases in which Eugene Hunt, Lisa A. Kelly and/or the Jefferson County Child Support Enforcement Unit are involved. On November 14, 1991, you denied the motions to recuse in the two pending actions, transferred the two cases to another Chancellor, and requested an opinion from this Committee as to future recusals.

1) The press release issued by you on November 8, 1991 is a past event. Under our guidelines our opinions are to relate only to prospective conduct. The propriety of the press release falls within the scope of the Judicial Discipline and Disability Commission, not this committee.

2) The motions for recusal in the two pending cases are properly within the jurisdiction of the chancery court. Further, appellate review is available. This committee will not address such pending issues.

3) The litigants have asked you to recuse yourself from all other cases in which they are involved. You informed the litigants that you were requesting an advisory opinion "in response to any motion you may file in the future requesting a recusal . . ." In your request to us, you have asked (1) whether, in the future, your impartiality might be reasonably questioned based solely on your opinions in the press release, and (2) whether blanket disqualification orders are appropriate.

This committee concludes that it should not answer these questions. Canon 3(C) provides that "a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including . . . instances where (a) he has a personal bias or prejudice concerning a party . . ." Further, Canon 2 provided that a judge should avoid the appearance of impropriety in all his activities. However, the mere fact that a judge may have a bias or prejudice does not make the trial judge so biased and prejudiced as to require disqualification in future proceedings. Matthews v. Rodgers, 279 Ark. 328, 651 S.W. 2d 453 (1983). Bias is a subjective matter, and accordingly "whether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge." Id at 331.

The matter of future disqualification is an "issue of law" and falls outside our guidelines. Disqualification issues belong in an adversary setting, not in an advisory Committee. Sua sponte actions by the trial court, motions by litigants and appellate review are the appropriate ways to raise and to resolve questions of disqualifications.

I am authorized to state that Judge Edwin Alderson joins with me in this opinion.

Yours very truly,

Howard Brill