In re Estate of Edens

548 S.W.3d 179
CourtCourt of Appeals of Arkansas
DecidedApril 4, 2018
DocketNo. CV–17–746
StatusPublished
Cited by4 cases

This text of 548 S.W.3d 179 (In re Estate of Edens) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Estate of Edens, 548 S.W.3d 179 (Ark. Ct. App. 2018).

Opinion

BART F. VIRDEN, Judge

Wayne Edens, as executor of the estate of Lois Jean Edens ("appellant"), appeals from the White County Circuit Court's order denying a motion for recusal filed by appellant's attorney, James A. Simpson, Jr. Appellant argues on appeal (1) that there is a conflict in the disqualification law that needs clarification; (2) that the standard of review for disqualification decisions should be de novo, rather than abuse of discretion; and (3) that, even under the current standard of review, the trial court abused its discretion by refusing to recuse. We agree with appellant's third point; therefore, we reverse and remand.

I. The Ferguson Decision

We begin with a discussion of the Ferguson decision by the Arkansas Supreme Court because appellant argues that the trial court here did not apply the proper analysis set forth in Ferguson when deciding whether to recuse. In Ferguson v. State , 2016 Ark. 319, 498 S.W.3d 733, our supreme court granted a petition for review of our decision in Ferguson v. State , 2015 Ark. App. 722, 479 S.W.3d 25, and held that the trial court abused its discretion in not recusing from criminal proceedings when it had previously presided over an adjudication hearing. In the dependency-neglect proceedings, the trial court adjudicated Jacqueline Ferguson's child dependent-neglected and ruled from the bench, "There was physical abuse of the child younger than six years of age. I don't see how you can find anything else." The trial court was later assigned to preside over criminal proceedings after the State filed an information charging Ferguson with domestic battering of that same child. Ferguson filed a motion for recusal on the basis that the "exact same" allegations were being made in the criminal matter as had been made in the dependency-neglect proceedings and that the trial court had demonstrated bias with its comments from the bench. The trial court denied the motion for recusal and denied a jury-trial waiver. Ferguson's case was tried before a jury, and she was convicted of second-degree battery.

In Ferguson's petition for review of this court's decision affirming her conviction, she argued that the trial court abused its discretion in denying her motion to recuse based on Rule 2.11 of the Arkansas Code *181of Judicial Conduct, which requires a judge to disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including circumstances where the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding and where the judge has presided over the matter in another court.

The supreme court held that the plain wording of Rule 2.11 required the judge to recuse because, by virtue of having presided over the matter in a different court, the judge's impartiality might reasonably be questioned. The supreme court noted that the enumerated examples in the rule are not the only way a judge's impartiality might reasonably be questioned. The supreme court stated,

In the case before us, Ferguson asserted that Judge [Barbara] Elmore's comments in ruling from the bench indicated that she was biased. In denying Ferguson's motion to waive a jury trial, Judge Elmore stated, "If you don't think that I can be impartial in a bench trial, then I'll deny your bench trial. So we'll have a jury trial." It is unnecessary to decide whether these comments indicated actual bias. The fact that Judge Elmore found that Ferguson's questioning of her impartiality required her to withdraw as the finder-of-fact, in essence, demonstrates that the questioning of her impartiality was reasonable. Obviously, if a judge's impartiality may "reasonably" be questioned, the mandatory portion of Rule 2.11 (A) is invoked and the judge is required to disqualify. Significantly, our case law requires a circuit court to be mindful of the perception of bias from the litigant's perspective.

Ferguson , 2016 Ark. 319, at 7, 498 S.W.3d at 737.

In the present case, appellant asserts that the Ferguson decision stands for the proposition that Rule 2.11's use of the word "shall" has mandatory-rather than discretionary-implications, that no showing of actual bias is necessary, and that an objective standard of a reasonable person is determinative of the issue of whether a trial court should recuse. According to appellant, the Ferguson decision did not explain the conflict in our disqualification case law and did not expressly overrule conflicting precedent, leaving room for misunderstanding and misapplication of the analysis, which appellant asserts is what happened here.

II. Motion for Recusal

Mr. Simpson filed a motion for recusal on behalf of appellant requesting that Circuit Judge Thomas Hughes recuse from "any cases involving undersigned Counsel or members of his firm or otherwise cause all cases filed by undersigned counsel or his firm in 1st division to be transferred to another division." The motion for recusal contains the following allegations minus the references to the many attached exhibits:

a. Undersigned counsel represented Sharon Jones in a case styled Lisa Petiriches, Sharon Duncan, Luay Dejani and Summer One, LLC v. Sharon Jones , case number CV-2011-535-3, which was originally in this Court and division. The case became known as the "lottery case." This Court ruled against Ms. Jones in a controversial decision and outcome but later recused from the proceedings and granted a new trial after motions filed by undersigned counsel. The case was extremely public and received national attention. Ms. Jones ultimately received a favorable outcome in the case once it was transferred to another Court.
*182b. Undersigned counsel filed a complaint with the Judicial Discipline and Disability Commission for reasons which speak for themselves in the complaint. The major points of the JDDC complaint dealt with this Court's improper and inappropriate actions while presiding over the above referenced "lottery case."
c. The JDDC filed undersigned counsel's complaint against the Court for which the Court had to answer. In the process of that proceeding, the Court was confronted with the complaint made by undersigned counsel. That situation and the lottery case are consistently and continuously involved in this case as set out herein.
d. Sometime in late 2013 or early 2014, local attorney, Carla Fuller, entered the race against the Court for the Circuit Judge of the 17th Judicial District, 1st Division. Undersigned counsel was in no way involved with Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
548 S.W.3d 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-edens-arkctapp-2018.