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In re Estate of Edens

Court of Appeals of Arkansas, Division III

April 4, 2018



          Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant.

         One brief only.

          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 of 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.
b. 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. Fuller's decision to run for the position yet the Court blames undersigned counsel for Ms. Fuller running against him.
e. During the course of the campaign, the Court and his wife made unfavorable public comments and statements to other County officials, local attorneys and other court personnel making their dislike of undersigned counsel known at the Wilbur Mills Courts Building where the Court's office is located.
f. Undersigned counsel endorsed a letter to various residents of White and Prairie Counties and friends supporting Ms. Fuller in her campaign and requesting contributions to her campaign. In the days following the letter being mailed, the spouse of the Court confronted a friend of undersigned counsel, accused undersigned counsel of slandering the Court and stated that, "I am going to get him for this."
g. The letter sent out by undersigned counsel never mentions the Court nor makes any references of any kind that can be taken as slander or any negative remark against the Court yet a threat to "get him" was made by the spouse of the Court.
h. On the Court's campaign Facebook page, references were made to one discontented attorney who was spreading mistruths about the Court. The references appear to be directed at the undersigned counsel.
i. On May 16th, 2014, the Court was campaigning at a restaurant in Kensett, White County, Arkansas. In a conversation with a local gentleman who was dining at the restaurant, the Court called undersigned counsel an "arrogant prick, " and blamed him for the difficulty of his campaign. Mr. [Nicky] Hamilton referenced the lottery case to the Court when undersigned counsel was mentioned by name and the Court used the derogatory reference.
j. On the day of the election, the Court made public comments mentioning undersigned counsel by name to local attorney, Winston Collier, and other individuals saying how much he was bothered by undersigned counsel. He discussed at length how hurt and bothered he was by undersigned counsel. He discussed the toll that he felt because of the lottery case, dealing with undersigned counsel and the campaign.
k. The Court made known to the Circuit Clerk [Tami King] through his words and actions that he was mad at, had bad feelings for and spoke of undersigned counsel in a negative light.
l. The Court blamed undersigned counsel for actions during the campaign that are completely untrue. The Court has made known to multiple local attorneys of his dislike, ill will and hatred for undersigned counsel by name. Further, the Court has acknowledged his dislike of undersigned counsel but fears that his recusal from undersigned counsel's cases would allow undersigned counsel to "win" and/or start a domino effect of recusal motions from other lawyers if this motion is granted.
m. Undersigned counsel filed a motion for recusal that included all of the allegations above in the case of The Estate of Karmel Ferren, Deceased, case no. PR-2013-259-1. This Court denied that motion without giving undersigned counsel a hearing. That ruling was appealed to the Arkansas Court of Appeals in the case of Ferren v. USAA, Ark. Ct. App. Case no. CV 14-766. The Arkansas Court of Appeals reversed and remanded the decision of this Court in [an] opinion dated September 16, 2015 [2015 Ark.App. 477, 469 S.W.3d 805]. In its opinion, the Court of Appeals reversed and directed that this Court give undersigned counsel a hearing on the Motion for Recusal. The Court of Appeals did not issue an opinion as to the outright recusal although it stated that the motion filed by undersigned counsel, "clearly consisted of more than conclusory allegations of bias or prejudice." The day after the opinion came down, this Court granted the Motion for Recusal yet never gave undersigned counsel a hearing.
n. The Court of Appeals issued a Mandate directing the Court [to] pay undersigned counsel $1, 581.85. Said amount remains unpaid creating further reasons for the Court to recuse due to the fact that undersigned counsel is a creditor of the Court.
o. Based upon the opinion rendered by the Arkansas Court of Appeals and this Court's decision to enter the Order of Recusal in the Estate of Karmel Ferren, undersigned counsel sent a letter to the Court asking for the Court to transfer all cases with undersigned counsel to another Division of the 17th Judicial District. The facts stated above are the same considered by the Court of Appeals and are the same facts upon which this Court recused in the Estate of Karmel Ferren case.
p. In response to the letter, this Court sent a letter to opposing counsel in each and every case that undersigned counsel represents a party in this Court's Division. In that letter, this Court accused undersigned counsel of having prohibited ex-parte communication with the Court. This is, once again, an act of this Court attacking undersigned counsel which reflects this Court's failure and inability to be impartial toward undersigned counsel and the clients that he represents. Ex-parte communication is described as follows: "An ex parte communication occurs when a party to a case, or someone involved with a party, talks or writes or otherwise communicates directly with the judge about the issues in the case without the other parties' knowledge." ( As can be seen from reading the letter from undersigned counsel, undersigned counsel did not refer to any issue of another case nor mention any fact or detail of any particular case. This Court has insinuated and accused undersigned counsel of having an ex-parte communication with the Court that is in no way an ex-parte communication. Despite the obvious fact, this Court has accused undersigned counsel of committing an unethical act and has attempted to disparage undersigned counsel to multiple attorneys. This Court clearly is impartial [sic] in any and all matters involving undersigned counsel.
q. Undersigned counsel filed a motion for recusal in the case of Phifer v. Ouellette, et al., White Co. case no. CV-2013-156, which included all of the above facts. The motion was filed on July 7, 2016. On Thursday, July 21, 2016, undersigned counsel was notified via telephone just before 5:00 p.m. by the Court's case coordinator that a hearing was set for July 28, 2016, just seven (7) days later. It was the first time that a hearing had ever been granted by the Court to undersigned counsel on any recusal motion involving the facts above. A motion for continuance was filed so that all relevant witnesses could be procured for the hearing. That motion was denied.
r. A hearing in the Phifer case was held on July 28, 2016. All of the facts above were developed at the hearing. Tami King and undersigned counsel testified live. Deposition testimony was given. Exhibits were introduced. Despite the evidence introduced at the hearing, this Court denied the motion for recusal in an order entered on August 1, 2016.
s. The full hearing and presentation of the facts set forth above speak for themselves.
t. Despite the fact that an order denying the motion for recusal was already entered on August 1, 2016, this Court took it upon himself to enter an amended order. The amended order speaks for itself. Entry of another order was not legally necessary. The amended order is laced ...

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