Sammie L. Thomas, Jr. v. State of Arkansas

2019 Ark. 237

• Court: Supreme Court of Arkansas
• Decided: August 1, 2019
• Status: Published

Opinion

Cite as 2019 Ark. 237 SUPREME COURT OF ARKANSAS No. CR-19-383

Opinion Delivered: August 1, 2019

SAMMIE L. THOMAS, JR. APPELLANT APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT V. [NO. 23CR016-834]

STATE OF ARKANSAS HONORABLE CHARLES E. APPELLEE CLAWSON, JR., JUDGE

MOTION TO DISQUALIFY TREATED AS MOTION TO RECUSE; DENIED BY JUSTICE WOMACK INDIVIDUALLY HEREIN.

SHAWN A. WOMACK, Associate Justice

Sammie L. Thomas, Jr., has moved for my disqualification from this case on the

basis that I previously recused from two cases handled by his appellate counsel, J. Blake

Hendrix. Given that the motion seeks my disqualification alone, it has been referred to

me by the court and shall be treated as a motion to recuse.1 Therefore, the response that

follows is mine. The motion is denied.

The asserted basis for my disqualification is that I previously recused from two cases

where Mr. Hendrix was counsel of record. See Elliott v. State, CR-17-1069; State v. Reynolds,

1 This court has historically treated motions to disqualify individual justices in this manner. See Robinson Nursing and Rehabilitation Center, LLC v. Phillips, 2016 Ark. 388, at 2, 502 S.W.3d 519, 520 (collecting cases). CR-17-982. I voluntarily recused from those cases on October 19, 2018, without

explanation. I was not obligated to explain my decision to recuse in those cases. See

Spradlin v. Ark. Ethics Comm’n, 310 Ark. 458, 459, 837 S.W.2d 463 (1992) (Glaze, J.,

separate opinion). Nor am I required to state the reasons for my decision to remain on the

case at bar. See id. But I believe it is beneficial to do so at this juncture in order to provide

clarity for any pending and future cases involving Mr. Hendrix that come before this court.

At the time of my recusal in Elliott and Reynolds, there was a pending matter before

the Judicial Discipline and Disability Commission (JDDC) against me and my fellow

justices. See JDDC Case Nos. 17-181—87. Mr. Hendrix is an alternate attorney member of

JDDC and was part of an investigative panel in the action. There was also a pending

petition for writ of mandamus related to the JDDC action that I filed with four other

justices against JDDC, its executive director, and its special counsel. See Kemp v. Sachar,

2018 Ark. 367. As a member of JDDC, Mr. Hendrix was an alternate respondent in that

petition.

The decision to recuse generally rests within the discretion of the individual judge.

See Robinson, 2016 Ark. 388, at 2, 502 S.W.3d at 520. But that decision must be guided by

the fundamental principles found within the Arkansas Code of Judicial Conduct. The first

canon of the code mandates that a judge “shall avoid impropriety and the appearance of

impropriety.” Ark. Code of Jud. Conduct, Canon 1; see also id. at Rule 1.2. The test for

determining the appearance of impropriety “is whether the conduct would create in

2 reasonable minds a perception that the judge violated [the Code] or engaged in other

conduct that reflects adversely on the judge’s . . . impartiality[.]” Id. at Comment [5].

In keeping with the principles established by Canon 1, I believed my participation

in Mr. Hendrix’s cases before this court could have given rise to an appearance of

impropriety while the JDDC and mandamus matters were ongoing. During the pendency

of those matters, Elliott and Reynolds were ready to be submitted to this court for decision.

I determined that my judicial obligations under Canon 1 made my voluntary recusal from

those cases appropriate. On a separate case, from which I did not recuse, I declined to

participate in a pending motion for review submitted by Mr. Hendrix on behalf of his

client during that time. See Cagle v. State, No. CR-18-386 (Order, Nov. 1, 2018) (Womack,

J., not participating).

The circumstances giving rise to my decision to recuse in Elliott and Reynolds have

long since changed. The meritless JDDC action was dismissed on November 21, 2018. See

JDDC Case Nos. 17-181—87 (Order, Nov. 21, 2018). Likewise, the petition for writ of

mandamus was dismissed as moot on December 19, 2018. See Kemp, 2018 Ark. 367.

There is accordingly no longer any reason for my recusal in Mr. Hendrix’s cases. And so,

another principle comes into play: my “duty to sit.” A judge “shall hear and decide matters

assigned to the judge, except when disqualification is required by Rule 2.11 or other law.”

Ark. Code of Jud. Conduct R. 2.7. In other words, when it is not necessary to recuse, it is

necessary not to recuse. See Villines v. Harris, 359 Ark. 47, 49, 194 S.W.3d 177, 178 (2004).

3 This is true even when a justice had previously recused from the same case if the reason for

disqualification is subsequently removed. Id. at 48, 194 S.W.3d at 178.

Mr. Thomas contends my recusal is necessary under Rule 2.11, which mandates

disqualification “in any proceeding in which the judge’s impartiality might reasonably be

questioned[.]” Ark. Code of Jud. Conduct R. 2.11(A). He argues that my voluntary recusal

in Elliott and Reynolds provides reasonable grounds for my disqualification under Rule 2.11.

But it is well established that judges are presumed to be impartial. See DePriest v.

AstraZeneca Pharmaceuticals, L.P., 2009 Ark. 547, at 23, 351 S.W.3d 168, 180. Moreover,

the question of impartiality, or bias, is “generally confined to the conscience of the judge.”

Id.

In any event, my decisions to recuse in Elliott and Reynolds and to not participate in

a vote on a petition in Cagle were premised on Canon 1’s admonition against the

appearance of impropriety. Because the circumstances giving rise to my recusal in those

cases have changed and there exists no other reason for my recusal, it is my duty under

Rule 2.7 to remain on this case.

Motion to disqualify treated as motion to recuse; denied by Justice Womack

individually herein.

HART, J., would grant.

WOOD, J., not participating.