Did a judge need to recuse from future cases involving a defendant who had sought recusal in one case?

Plain-English summary

A circuit judge asked about future cases involving a defendant whose recusal request in one criminal matter the judge had denied. The judge stated he had no bias against the defendant.

The Committee discussed the presumption of impartiality and the need for a specific disqualification ground or material evidence of bias. On the request as presented, it saw no basis for recusal in similar cases.

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 prior recusal request alone establish a basis for future recusal?

A: The Committee found no basis on the facts supplied without a specific Canon 3(E) ground or other material bias evidence.

Q: Did it accept a mere appearance allegation as enough?

A: No. It cited authority saying an unsupported allegation was insufficient.

Background and rules framework

The opinion applied then-current Canon 3(E) commentary and cited Arkansas decisions on impartiality and bias.

Citations and references

• Arkansas Code of Judicial Conduct Canon 3(E) and commentary.
• Korolko v. Korolko, 33 Ark App 194, 803 SW2 948 (1991).
• Register v. Oaklawn Jockey Club, 306 Ark 321-J, 822 SW2 391 (1991).
• Bradford v. State, 328 Ark 701, 947 SW2 1 (1997).

See also

No sibling opinions yet indexed.

Source

• Landing page: https://jddc.arkansas.gov/opinions/opinion-no-97-06/

Original opinion text

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

January 6, 1998

The Honorable John G. Holland

Circuit Judge, Twelfth Judicial District

35 South 6th Street

Sebastian County Courthouse

Fort Smith, Arkansas 72901

Re: Advisory Opinion # 97-06

Dear Judge Holland:

Your letter of December 11, 1997 (supplementing your letter of November 18, 1997) states that you have been asked to recuse by defendant Robert O. Rosso in case number CR-97-76-G. You further state that you have declined to recuse, asserting unequivocally that you have no bias against Mr. Rosso. You ask whether you should recuse in other cases similar to CR-97-76-G where Mr. Rosso is the defendant.

We note that the commentary to Canon 3(E) provides that judges are presumed to be impartial and the party seeking disqualification bears a substantial burden to overcome that presumption [citing Korolko v. Korolko, 33 Ark App 194, 803 SW2 948 (1991)]; further, that a mere allegation that a judge's conduct has the appearance of impropriety is not sufficient [see Register v. Oaklawn Jockey Club, 306 Ark 321-J, 822 SW2 391 (1991)]. Moreover, bias is a subjective matter which is confined to the conscience of the judge. Bradford v. State, 328 Ark 701, 947 SW2 1 (1997).

Accordingly, in the absence of a specific allegation involving grounds for disqualification under Canon 3(E)(a,b,c,d), or other material evidence of bias, we see no basis for recusal.

Yours very truly,

Steele Hays

For the Committee