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,
For the Committee