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January 6, 1998

The Honorable John G. Holland
Circuit Judge, Twelfth Judicial District
35 South 6th Street
Sebastian County Courthouse
Fort Smith, Arkansas 72901

Re: Advisory Opinion # 97-06

Dear Judge Holland:
Your letter of December 11, 1997 (supplementing your letter of November 18, 1997) states that you have been asked to recuse by defendant Robert O. Rosso in case number CR-97-76-G. You further state that you have declined to recuse, asserting unequivocally that you have no bias against Mr. Rosso. You ask whether you should recuse in other cases similar to CR-97-76-G where Mr. Rosso is the defendant.

We note that the commentary to Canon 3(E) provides that judges are presumed to be impartial and the party seeking disqualification bears a substantial burden to overcome that presumption [citing Korolko v. Korolko, 33 Ark App 194, 803 SW2 948 (1991)]; further, that a mere allegation that a judge's conduct has the appearance of impropriety is not sufficient [see Register v. Oaklawn Jockey Club, 306 Ark 321-J, 822 SW2 391 (1991)]. Moreover, bias is a subjective matter which is confined to the conscience of the judge. Bradford v. State, 328 Ark 701, 947 SW2 1 (1997).

Accordingly, in the absence of a specific allegation involving grounds for disqualification under Canon 3(E)(a,b,c,d), or other material evidence of bias, we see no basis for recusal.

Yours very truly,

Steele Hays

For the Committee

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