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August 24, 1994
The Honorable Thomas E. Brown
Circuit Chancery Court
Eleventh Judicial District -West
Jefferson County Courthouse
P. O. Box 9260
Pine Bluff, AR 71611
RE: Advisory Opinion # 94-07
Dear Judge Brown:
Your letter of June 16, 1994 raises a question that we have dealt
with in different factual settings twice before: whether a judge who is seeking
re-election must disqualify himself when a party in a contested proceeding is represented
by a declared candidate for the judge's position.
The governing standard is that a judge must avoid even the
appearance of impropriety, Canon 2, and must disqualify himself if a judge's impartiality
must reasonably be questioned, Canon 3(E)(1). Accordingly, Advisory Opinion 94-02 advised
a municipal judge that he should recuse whenever an attorney who is opposing the judge for
re-election should appear before the judge. Similarly, Opinion 94-05 concluded that a
judge must act sua sponte on the issue of disqualification, and is not permitted to
preside until a party objects.
However, the situation you pose if factually different and
admittedly more difficult. As the Circuit/Chancery judge, you hear all the juvenile
delinquency cases for Lincoln and Jefferson Counties. No other circuit judge or chancery
judge hears juvenile matters. The delinquency cases are prosecuted by either the City
Attorney (misdemeanors) or the Prosecuting Attorney (felonies). The Prosecuting Attorney
handles all the Family In Need of Services (FINS) cases as well as probation revocation
hearings for State cases and Contempt of Court cases. Such juvenile matters frequently
include emergency probable cause detention hearings, detention continuation hearings after
fourteen (14) days, and other State related matters.
The prosecutor has hired, on a part-time contract basis, a deputy
prosecuting attorney to handle the felonies and some misdemeanors. This deputy prosecutor
has announced her intention to run against you as an independent candidate in the November
general election. You have indicated that she typically appears before you in 10-20 cases
a week. Although the prosecutor does have other assistants, none of them typically
represent the government in the delinquency proceedings.
Unlike other situations, here no other circuit judge or chancellor
can easily be substituted for these juvenile matters. Special judges may not be feasible
or appropriate for juvenile matters, particularly those extending over months or years.
Unlike Opinion 94-02, a government attorney is the opposing candidate. Unlike 94-05, no
other attorney can easily be substituted for the judicial challenger. Unlike Opinion
94-02, recusal would occur in a large number of cases.
Both the Code and the case law anticipate such a situation. The
commentary to Canon 3(E)(1) reads:
By decisional law, the rule of necessity may override the rule of
disqualification. For example, a judge might
be required to participate in judicial review of a judicial salary
statute, or might be the only judge available
in a matter requiring immediate juridical action, such as a hearing
on probable cause or a temporary restraining order. In the latter case, the judge must
disclose on the record the basis for possible disqualification and use reasonable efforts
to transfer the matter to another judge as soon as practicable.
Since 1430 courts have recognized the rule of necessity. See Shaman,
Lubet & Alfini, Judicial Conduct & Ethics 5.03 (1990). According to the case law
the doctrine of necessity provides that despite compelling reasons for disqualification,
recusal is not required if no mechanism exists for transfer of the matter to another court
or appointment of a substitute judicial officer. This doctrine has been recognized by the
Arkansas Supreme Court. See Acme Brick Co. v. Missouri Pacific Railroad Co., 307 Ark. 363,
821 S.W. 2d 7 (1991); Wheatley v. Warren, 232 Ark 123, 334 S.W. 2d 880 (1960).
We are reluctant to examine the parameters of this rule. For
example, we note that the United Stated Supreme Court does apply the rule to itself, but
the Arkansas Supreme Court does not. However, the Arkansas Supreme Court need not resort
to the rule for the simple reason that the Constitution allows the Governor to appoint
special justices. See, for example, Johnson Timber Corp. v. Sturdivant, 295 Ark. 663-B,
758 S.W. 2d 415 (1988).
Accordingly, we conclude that your unique situation falls into the
narrow group of situations governed by the Arule of necessity@. Our opinion does not
necessarily mean that you can preside in every instance in which the judicial challenger
appears before you. In ways that we cannot foresee, the campaign might be relevant to
judicial proceedings; the parties might object; or, your own subjective evaluation of the
situation might require recusal. As the Supreme Court concluded in Matthews v. Rodgers,
279 Ark. 328, 651 S.W. 2d 453 (1983), such matters are left to your judgment.
Sincerely,
Howard W. Brill
For the Committee
AConcurring Opinion of Edwin B. Alderson, Jr.
I concur with the excellent opinion of my distinguished
colleague, Professor Brill. The opinion properly focuses on the Arule of necessity@ and
the fact that it may not be feasible or appropriate for Special Judges in these cases.
Nothing, however, is mentioned about the fact that the Prosecuting Attorney=s office has
the obligation to provide a qualified person to handle the juvenile cases that come before
Judge Brown. The person so appointed should not be one who will cause problems under the
Code of Judicial Conduct and problems for the Court and the administration of justice.
There are probably a number of ways to handle this matter, but the obvious solution is for
the Prosecuting Attorney to provide a qualified person to handle the cases who is not
tunning against Judge Brown. Surely the Prosecuting Attorney is aware of this situation. I
think it is appropriate for Judge Brown to discuss this matter with the Prosecuting
Attorney and ask that office to provide an immediate solution to the Problem.
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