Worth v. Benton County Circuit Court , 351 Ark. 149 ( 2002 )

Jim Hannah, Justice.

Petitioners seek a writ of mandamus, or alternatively a writ of prohibition, to prevent the circuit judge from sitting in this case. This case was previously submitted on June 27, 2002, however, we issued a per curiam on July 5, 2002, ordering the parties to brief five additional issues. Worth v. Keith, 349 Ark. 731, 79 S.W.3d 387 (2002) (Worth IT). This case is now resubmitted with the additional briefing.

Petitioners allege the circuit judge must recuse where he or his family may be beneficiaries of any tax refund or “rollback.” We hold that the trial judge, as a property owner and relative of other property owners affected by the action, does not have an interest of the type that disqualifies a judge. Where a judge has no interest in an action beyond that of the general interest which any other taxpayer or property owner has, he or she does not have a personal or pecuniary interest of the type that disqualifies a judge. The trial judge did not abuse his discretion in refusing to recuse.

Facts

We have before us a consolidated case comprised of three lawsuits that were filed in 1997. Respondents filed a motion to dismiss, which was considered as a motion for summary judgment and granted. This court reversed the trial court in Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000) (Worth I). Then, on May 31, 2001, the petitioners filed a motion to recuse.

The Petitioners filed a motion for recusal, asserting that at the class-certification hearing on February 22, 2001, the trial judge disclosed that he owned real and personal property subject to taxation by taxing units named in the suit, and that this meant he would be a member of the class. They also asserted that the trial judge had family members who might benefit, depending on the outcome of the case. The judge stated that he would opt out. However, the Petitioners argued that the judge and his family would still benefit from any “roll back” that might be ordered. The motion for recusal also included the assertion that the judge’s appearance of impartiality would be affected, that he was a party litigant in this matter, and that he had a pecuniary interest in the outcome of the suit that disqualified him to sit as judge. The trial court denied the motion. This petition for a writ of mandamus, or in the alternative, for a writ of prohibition, followed.

Standard of Review

The decision to disqualify is within the trial court’s discretion, and we will not reverse the exercise of that discretion without a showing of abuse. Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999). An abuse of discretion can be shown by proving bias or prejudice. Massongill, supra; Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).

Recusal

In the motion to recuse before the trial court, the Petitioners argued that the trial judge had an interest in the suit as a person owning affected real estate, and that therefore he was a member of the class, and a party litigant, and could not sit as judge. Petitioners further argued the trial judge’s offer to opt out would be of no import because he would benefit from any roll back that might be ordered, regardless of whether he opted out. The Petitioners also argued that the trial judge had a pecuniary interest in the outcome of the lawsuit and, therefore, he could not sit on the case. The Petitioners then asserted the trial judge’s impartiality was called into question because of his interest in the case, and therefore, he could not sit on the case. The Petitioners also asserted that the trial judge’s impartiality might be called into question because of benefits that might be received by the trial judge’s relatives who owned property. Petitioners finally argued that the benefit received by the judge and his family could be substantial. In Worth II, we asked the parties to address the following additional issues:

1. Whether petitioners waived any alleged disqualification based upon the passage of time;

2. Whether petitioners waived any alleged disqualification based upon acquiescing in allowing the allegedly disqualified judge to preside over the case, including hearings, motions, and so on, without moving for recusal until an adverse ruling was made;

3. Whether the trial judge, having a general interest as a property owner and relative of other property owners possibly affected by the case, had a personal or pecuniary interest of the type that disqualifies a judge;

4. Whether the fact that petitioners complain of bias in their favor as the basis for recusal plays a role in analysis; and

5. Whether the trial judge’s offer to opt out of the class plays any role in this analysis.

Worth, 349 Ark. at 732.

Waiver

The disqualification of a judge may be waived.¹ Miles v. State, 277 Ark. 470, 644 S.W.2d 240 (1982). Waiver will be found by a failure to seasonably object. Nowlin v. Kreis, 213 Ark. 1027, 214 S.W.2d 221 (1948). Further, a failure to bring the matter to the judge’s attention may constitute a waiver. Morrow v. Watts, 80 Ark. 57, 95 S.W. 988 (1906), see also Washington Fire Ins. Co. v. Hogan, 139 Ark. 130, 213 S.W. 7 (1919); Pettigrew v. Washington County, 43 Ark. 33 (1884). In Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995), this court stated: “Nonetheless, respondent waited three months before requesting Judge Lineberger to recuse, and when respondent’s request was denied, he never petitioned this court that Judge Lineberger’s assignment was improper and lacked jurisdiction.” Wilson, 321 Ark. at 74. Thus, disqualification of a judge may be waived.

It has long been the law in Arkansas that a party may not speculate on the outcome and thereafter take advantage of a fact supporting disqualification known but not raised by him until after an adverse decision is rendered. Nowlin, supra; Byler v.State, 210 Ark. 790, 197 S.W.2d 748 (1946); Ingram v. Raiford, 174 Ark. 1127, 298 S.W. 507 (1927); Morrow v. Watts, 80 Ark. 57, 95 S.W. 988 (1906); Pettigrew, supra. Petitioners knew of or should have known the facts giving rise to the alleged disqualification on the day the complaint was filed. It would be a poor use of judicial resources to allow a party to wait four years and then complain. Petitioners did not object to the trial judge hearing the motion for summary judgment wherein he ruled against them, and they may not complain now.

The facts before us show waiver. We must note the passage of over four years coupled with a motion for recusal only after an adverse ruling on a motion for summary judgment. Here, the parties were obviously aware they were prosecuting a case in the county where the alleged illegal exaction occurred, and that the judge sitting in that county, as well as his family members, were most likely inhabitants of that county protected against illegal exaction by Article 16, Section 13, of the Arkansas Constitution. Any alleged right to disqualification was waived.

Impartiality

As Petitioners argue, this court has stated that the issue of the appearance of impropriety is a basic issue that must be addressed first. Huffman v. Judicial Discipline, 344 Ark. 274, 42 S.W.3d 386 (2001). In Huffman, supra, we discussed the Canons of the Arkansas Code of Judicial Conduct. Canon 2A states:

Canon 2. A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.

A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Canon 3E(1) states as follows:

Canon 3. A judge shall perform the duties of judicial office impartially and diligently.

E. Disqualification

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. ...

As we stated in Huffman, both Canons 2A and 3E(1) require a judge to protect the integrity and impartiality of the judiciary. Under Canon 2A, a judge must consider whether any action he or she takes promotes public confidence in the integrity and impartiality of the judiciary. Similarly, Canon 3E(1) requires a judge to recuse when his or her impartiality might reasonably be questioned. As we also stated in Huffman, an independent judiciary is essential for our society.

Against these concerns must be balanced the judge’s duty to hear the cases that come before him or her. There is a duty not to recuse where no prejudice exists. Massongill, supra. If there is no valid reason for the judge to disqualify himself or herself, he or she has a duty to remain in a case. U.S. Term Limits v. Hill, 315 Ark. 685, 870 S.W.2d 383 (1994). There is a presumption of impartiality, and the party seeking disqualification bears the burden of proving otherwise. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998). The Petitioners have failed to show the appearance of impropriety.

Personal or Pecuniary Interest

A personal proprietary or pecuniary interest, or one affecting the individual rights of the judge, is an interest which will disqualify a judge; however, to be a disqualifying interest, the prospective liability, gain, or relief to the judge must turn on the outcome of the suit. Sturgis, supra. Here, the allegation is that the judge stands to gain the refund of taxes that would occur, as well as any roll back that might result. The amount the trial judge would receive is not quantified by Petitioners. The trial judge, as weE as his father, his wife, and his son, also own property in Benton County. The trial judge characterized his son’s property holdings as “substantial.”

The argument is made that the trial judge is disqualified in that he is presiding over a case in which he is related to a party within the fourth degree of consanguinity or affinity. In fact, Petitioners argue that he is a party to the litigation. Article 7, Section 20, of the Arkansas Constitution, provides that “[n]o judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be described by law. . . .” Ark. Code Ann. § 16-13-214 (Repl. 1999). Further, Canon 3E(l)(c) of the Code of Judicial Conduct provides that a judge “shall disqualify himself” when he knows that he or his spouse, parent, or child “has an economic interest in the subject matter in controversy.”

What must be determined is whether the interests noted above rise to the level that requires disqualification. We note that the case cited by Petitioners did not involve illegal exaction. We also may not ignore that the Canons “suggest that a judge disqualify when his impartiality may be reasonably questioned.” Carton v. Missouri R.R., 315 Ark. 5, 10, 865 S.W.2d 635 (1993). The question becomes whether under the facts in the present case, the impartiality of the trial judge may be reasonably questioned. It may not.

More specifically, the issue before us is whether a trial judge is disqualified from hearing an illegal exaction case where he will receive whatever other taxpayers will receive if the suit were to prevail. That clearly is not the situation where a judge has a personal interest in the outcome of the case as in Byler, supra, where the trial judge presided over a murder case in which the victim was the judge’s wife’s cousin.

We deal in this case with taxes that affect each taxpayer in Benton County and the noted school districts. The judge and three members of his family are such taxpayers. This is not a case where the judge is a party in the typical sense. Before a judge is disqualified, the interest must be more than that of an ordinary citizen or taxpayer. Nowlin, supra.² This is restated in 1996 in Noland v. Noland, 326 Ark. 617, 932 S.W.2d 341 (1996), where this court stated that a judge must disqualify himself where he has a personal, proprietary, or pecuniary interest or one affecting his personal rights. An action based upon public issues of annexation, for example, including how that annexation might affect a judge’s taxes, is not a suit of a personal nature, but rather one of a general interest in a public proceeding “which a judge feels in common with a mass of citizens.” Foreman v. City of Mariana, 43 Ark. 324, 329 (1884). This is not the type of interest that disqualifies a judge. Id. Where the judge has no interest in the litigation beyond that of a general interest which any other citizen and property owner has, disqualification is not necessary. Osborne v. Bd. of Improvement, 94 Ark. 563, 128 S.W. 357 (1910).

Petitioners cite to Copeland v. Huff, 222 Ark. 420, 261 S.W.2d 2 (1953), and the later case of Sturgis, supra, arguing that any pecuniary interest, however slight, requires disqualification. Both cases merely mention interests and disqualifying interests. Neither case casts light on the nature of a pecuniary interest. Petitioners argue that Article 7, Section 20, is mandatory, and that therefore Judge Keith had no discretion. In essence, Petitioners argue that Judge Keith, as a taxpayer, is a party to the lawsuit because he is an affected taxpayer. The natural consequence of this analysis will be to quickly find there is no judge to try a case of state wide impact where the matter is of general interest.

In Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978), this court stated, “The ‘interest’ which is disqualifying under these provisions is a personal proprietary or pecuniary interest or one affecting the individual rights of the judge, and the liability, gain or relief to the judge must turn on the outcome of the suit.” Mears, 263 Ark. at 833-34; see also, Sturgis, supra; Noland, supra. These and the other cases cited in this matter are not illegal exaction cases.

In Nueces County Drainage and Conservation Dist. No. 2 v. Bevly, 519 S.W.2d 938 (Tex. Ct. App. 1975), the Texas appellate court discussed whether two justices were disqualified as a consequence of ownership of land in the district where liability for taxes was at issue. The case involved enlargement of a drainage ditch. The Texas Constitution, provides, “No judge shall sit in any case [in which] he may be interested. . . .” Article 7, Section 20, in our own Constitution provides similarly:

No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be prescribed by law; or in which he may have been of counsel or have presided in any inferior court.

Ark. Const, art. 7, § 20.

The Texas Court of Appeals, stated that under its Constitution, “[t]he interest of a judge, in order that he would be disqualified, must in general, be a direct pecuniary or property interest in the subject litigation.” Nueces, 519 S.W.2d at 951. The Texas Court of Appeals went on to say that, “[w]here a judge’s pecuniary interest is not specifically affected, a judge is not by reason of being a taxpayer disqualified from sitting in a case although he may have a merely incidental, remote, contingent or possible pecuniary interest in the subject matter of the suit.” Id. The Texas Court of Appeals also stated, “It was recognized early on in Texas jurisprudence that the mere fact that a judge is a taxpayer of a city does not as such work a disqualification of the said judge. It if were otherwise, it would be difficult, if not impossible, to get cases tried.” Id.

The trial judge is simply a taxpayer like any other citizen. On this basis, Petitioners fail to show that the trial judge’s impartiality may reasonably be questioned.

Lack of Prejudice /Judge Shopping

This is quite a curious case. The prejudice alleged is bias in the favor of the Petitioners. That is a somewhat remarkable complaint. There is no duty to recuse where no prejudice is shown. Osborne, supra.

This case is now more than five years old. In a case this old, it is apparent that the trial judge has presided over more than a few matters in this case. We must also note that Petitioners had to be aware when they filed their suit that the trial judge likely was a property owner and that the trial judge likely had family who owned property. Yet no action toward disqualification was undertaken until late in the case and after the trial judge ruled against Petitioners on the motion for summary judgment. The logical conclusion that arises from these facts must be that Petitioners concluded that they would now be better served by another judge. That is not a basis for disqualification.- Rather, it appears to be forum shopping, something this court has not chosen to encourage for obvious reasons. Patterson v. Isom, 338 Ark. 234, 992 S.W.2d 792 (1999).

The discussion of the Eighth Circuit Court of Appeals in Little Rock School District v. Pulaski County School District, 839 F.2d 1296, 1302 (8th Cir. 1988) is helpful:

At the outset, we note the irony that most of the major parties to this litigation have at some point moved for the removal of the judge. Not surprisingly, the parties have generally discovered grounds for disqualification at approximately the same time that the District Court has ruled for their adversaries on the merits. The recusal statute does not provide a vehicle for parties to shop among judges. . . .

It appears that in the case before us, Petitioners are shopping for a new judge. Our recusal statute is not a vehicle for parties to shop among judges. On that basis, this petition must be denied.

We also note that the parties were asked to brief the issue of bias. The Petitioners stated in their brief that they did not complain of bias.

Finally, we asked to be briefed on whether the trial judge’s decision to opt out of the litigation has an impact on disqualification. Petitioners instead argued about the judge’s status as a party, his alleged personal interest, and issues already discussed above.

The petition for a writ of mandamus, or in the alternative, for a writ of prohibition, is denied.

Glaze and Imber, JJ., dissent and would grant.

1 In the hearing on June 7, 2001, counsel for the City ofRogers raised the issue of waiver in arguing that the case had been pending for four years, that rulings had been made by the trial court, and that the case had been appealed to the supreme court. Further, in argument at this same hearing, counsel for Plaintiffs stated: “So, I don’t think that there’s any waiver or any timing issue.”

2 In Nowlin, supra, the court stated that, “It would, of course, be better practice for the County Judge not to preside in a case where he had signed the petition as his interest might be more than that of an ordinary citizen or taxpayer, which was the interest discussed in Foreman, et al v. Town of Marianna, 43 Ark. 324 and Osborne v. Board of Improvement, 94 Ark. 563, 128 S.W. 357.” Nowlin, 213 Ark. at 1029.