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The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion stating that 1) because a press release issued by a judge prior to his request for an ethical opinion is a past event, the propriety of the press release falls as a matter for the Judicial Discipline and Disability Commission, not the Committee, 2) because motions for recusal based on the press release made in two pending cases were properly within the jurisdiction of the chancery court and appellate review is available, the Committee would not address the issue of recusal in those cases, and 3) because the matter of future disqualification based on the press release is an issue of law that should be resolved in an adversary setting, the Committee would not address that issue. In the press release, the judge had criticized a consent decree signed by a United States judge resolving a voting rights act challenge to judicial districts, announced his intention to run for re-election in 1992 in the newly created sub-district, and commented on race relations in the judicial district. The motions to recuse in two pending cases were brought by the plaintiff in the federal suit, his law partner who had represented him in the federal action, and the Jefferson County Child Support Enforcement Unit. One member of the three member committee dissented from the advisory opinion, stating that he did not find any evidence of bias, prejudice, or judicial impropriety in the press release.


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(3) 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 pres release issued by you on November 8, 1991 us 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 Ain 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 38 provides that Aa 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 Awhether 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 Aissue 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

 

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