Summary
In Foster v. Jefferson County Quorum Court, 321 Ark. 105, 901 S.W.2d 809 (1995), supp. op. granting reh'g, 321 Ark. 116-A, 901 S.W.2d 815 (1995), the initial opinion (Foster I) held that Ark. Const. art. 16, § 13 did not designate a specific court in which illegal exaction actions must be litigated.
Summary of this case from Barker v. FrankOpinion
SEPARATE OPINION DENYING MOTION REQUESTING DISQUALIFICATION
[321 Ark. 116V] PAULA JAMELL STOREYGARD, Special Justice.
I was appointed to act as a Special Justice on this case as a matter of public record [321 Ark. 116W] in February, 1995, some two months before oral arguments. I sat with the Court during oral arguments in the presence of Appellant and his attorney. I wrote a dissenting opinion adverse to the position of the Appellant several weeks before Appellee's petition for rehearing was heard [321 Ark. 105, 901 S.W.2d 809]. During all of these months, Appellant knew of my participation and had the opportunity to determine the identity of my law firm and the nature of my practice. Appellant did not, however, file his motion for my disqualification until after the Court ruled against him.
Appellant has now made serious allegations regarding my participation, about which I will only make a few comments. Appellant's allegation that my law firm is qualified to act as bond counsel is true but irrelevant. We are qualified to practice in many areas of the law and municipal finance is not a significant part of our firm's overall practice. We have never been involved in any general obligation bond issue or any other bond issue which would or could be affected by the ruling in this case. Were it otherwise, I would never have accepted this assignment. The fact that, because of our legal abilities, a local governmental entity could be a "potential" client is not a reasonable basis for my disqualification in this case. Indeed, my firm's bond practice has not precluded it from representing taxpayers in illegal exaction cases detrimental to the interests of governmental entities. Finally, Appellant seeks my disqualification because three years ago my law firm worked with one of the the many law firms that has filed an amicus curie brief. This firm's co-representation of one client, in 1992, in a matter wholly unrelated to the case at bar, is not legally or ethically suggestive of or a basis for recusal.
Not only does Appellant's motion fail to set forth a reasonable basis for disqualification, it is untimely. Rule 6.4 of the Arkansas Supreme Court Rules requires that any motion requesting disqualification of a Justice "shall be filed a reasonable time prior to the submission of the case to the court." The rule is based upon the common sense principle that a party should not be allowed to wait upon the adverse outcome of a case to decide whether to seek disqualification of a judge. See Nowlin v. Kreis, 213 Ark. 1027, 214 S.W.2d 221 (1948); Ingram v. Raiford, 174 Ark. 1127, 298 S.W. 507 (1927). The motion should also be denied as a matter of judicial administration.
[321 Ark. 116X] When considering a motion for disqualification, a judge has a duty not to recuse when no reasonable basis for disqualification exists. See Walker v. Bishop, 408 F.2d 1378 (8th Cir.1969). Having fully considered every argument advanced by Appellant, I do not find it necessary or proper to recuse and I would deny the Appellant's motion for disqualification.