SAMMIE L. THOMAS, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR016-834]
HONORABLE CHARLES E. CLAWSON, JR., JUDGE.
A. Womack, Associate Justice.
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. Therefore, the response that follows is
mine. The motion is denied.
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, 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.
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.
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 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 .
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).
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). 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.
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
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.
to disqualify treated as motion to recuse; denied by Justice
Womack individually herein.
J., would grant.