Lead Opinion
I, Appellant City of Rockport appeals the order of the Hot Spring County Circuit Court finding substantial compliance with certain annexation requirements set forth in ArkCode Ann. § 14-40-2002 (Supp. 2009). On appeal, Rockport argues that the circuit court erred in concluding that sewer services were provided, accepted, and in place or that the parties took substantial steps to cause the requested sewer services to be provided, accepted, and in place in accоrdance with the statutory requirements. Additionally, Rockport argues that the circuit court erred in failing to recuse where there was an appearance of impropriety. We find no error and affirm.
Aaron Wright and Leann Wright-Welch (“landowners”) own real property that was located within the incorporated limits of the city of Rockport prior to 2001.
On August 28, 2008, Rockport filed a complaint for declaratory judgment, averring that the deadline, pursuant to section 14 — 40—2002(b)(2)(B)(iii), for Malvern to provide the requested services expired on or about March 11, 2005, twelve months from the date this court affirmed the annexation in Rockport I. In its complaint,
Prior to trial, Rockport also filed a motion requesting the circuit court judge to recuse. In seeking recusal, Rockport asserted that the judge had served as city attorney for Malvern for a number of years and had also represented private clients against Rockport in similar annexation issues. Thus, according to Rockport, there existed an appearance of impropriety. Following a hearing on the motion, the circuit court entered an order denying the motion to recuse.
A bench trial was subsequently held on August 21, 2009. Carl Wheatley, an employee with Malvern Water Works, testified that there was not a sewer main on the Wright-Welch property but that there was onе within twenty yards of that property. Wheatley also testified that between March 11, 2004, and March 11, 2005, there had been no work done to connect that main sewer to the property. On cross-examination, Wheatley explained that there was no other work that the city needed to do to have the sewer line in place for the landowners and that the next step to get the property connected to the sewer line was with the landowners.
Steven Northcutt, mayor of Malvern, also testified. He tеstified that when a landowner annexes into the city, the city provides the requested services. According to Northcutt, there are requirements for landowners who want sewer service once they are annexed into the city. He explained that in this case, the landowners have taken steps to tie |4onto the sewer line, including going to the planning commission and meeting with a code enforcement officer.
Len Dawson, the code enforcement officer for the city of Malvern, testified thаt Leann Wright-Welch approached him in 2005 and asked for information about building apartments in Malvern. She brought plans for developing the property at issue here, and the two discussed water and sewer, fire protection, setbacks, streets, roads, cul-de-sacs, and building layout. Dawson also stated that he and Wright-Welch talked about sewer service and that he advised her to use a four-inch gravity-flow drain pipe to service most, if not all, of the apartments. Finally, he stated that the city of Malvern had no additional steps to take to provide sewer service because it was up to the landowners to request a connection.
Wright-Welch testified that she sought to have her property annexed into Malvern because the services she needed were not available in Rockport. She explained that she had architectural plans dating back to 2002 and that she is continuing to develop her plan for that property. She stated that she has discussed connecting to the sewer line with Malvern city employees. According to Wright-Welch, once it is determined what kind of line is needed, where it has to be placed, and all engineering specifics are completed, she will request
Following the bench trial, the circuit court entered an order on September 25, 2009, making the following findings:
6. The Court finds that Malvern has sewer service to the property provided and in place by having a functioning sewer main within 60 feet оf the property line. The landowner has not requested nor paid the connection fee for the service. The landowner has significant input on the type of sewer service needed to best develop the property. Mal-vern may not dictate the type of sewer service the landowner receives nor compel the landowner to pay the expense of connecting a sewer line that is not suited to the requirements of the development.
7. The Court finds that all necessary services required by statute are provided and in place. The Court finds that Malvern has accepted the property and committed to provide the services. The landowner has accepted services from Malvern. Malvern has substantially complied with the statute and is able to connect sewer immediately upon request of the landowner.
Thus, the circuit court denied Rockport’s request for a declaration that the annexation was void. This appeal followed.
As its first point on appeal, Rockport argues that the circuit court erred in finding that sewer services were “provided, accepted, and in place” where it was undisputed that the sewer system did not reach the landowners’ property and the landowners have not requested a connection or paid a connection fee. Similarly, Rockport asserts that the circuit court erred in finding that there has been substantial compliance with the requirements of section 14-40 — 2002(b)(2)(B)(iii). Malvern argues to the contrary that Rockport’s proposed reading of the | ^statute is incorrect and that the evidence established that there had been substantial compliance with the statute.
The standard of review on appeal from a bench trial is not whether there is substantial evidence to support the findings of the circuit court, but whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. See, e.g., El Paso Prod. Co. v. Blanchard,
Further, we review issues of statutory construction de novo, as it is for this court to determine what a statute means. Johnson v. Dawson,
In 1999, Act 779 of 1999, now codified at Ark.Code Ann. §§ 14-40-2001 to -2002 (Supp.2009) (the “Detachment-Annexation Statutes”), was enacted to provide the procedure
However, if the requested services are not provided, accepted, and in place within twelve (12) months after the property is accepted by the annexing jurisdiction or substantial steps are not taken to provide, accept, and have the services in place within this time period, then the detachment and annexation shall be void and all property returned to its original jurisdiction.
Ark.Code Ann. § 14-40-2002(b)(3)(B)(iii).
■ In the instant case, it is undisputed that Malvern has provided a sewer line that is approximately twenty yards from the Wright-Welch property. City officials from Malvern testified that the city had taken all necessary steps to provide sewer service. The evidence also demonstrated that while sewer service wаs not operational, there were substantial steps taken to accept and have those services in place. As previously set forth, the landowners obtained a utility easement, which is necessary for them to access and eventually connect to the sewer line. There was testimony from Wright-Welch regarding the expenditure of substantial funds to architects and engineers to assist in the development of the property, including a determination of what type of sewer connection will be required. In addition, city officials testified that the landowners were engaged in continuous efforts to develop the property.
There is simply no merit to Rockport’s argument that Malvern has not complied with its requirement to provide sewer service because there is no sewer line on the property. Nothing in the statute requires the sewer line to be physically on the property. The statute requires that it be provided, and the evidence presented was that it was common practiсe for |sMalvern to provide a sewer line that the landowners could then connect to. Likewise, the statute makes no requirement that the requested service be in use; rather, it must be accepted. Here, there is evidence that the landowners have substantially complied with the requirement that they accept the service, including testimony that the landowners obtained a utility easement to access the sewer line. Moreover, there was evidence that the landowners had met with cоde enforcement officers and hired architects and engineers to aid in developing the property, including a determination of what type and where to place a connection to the sewer line. As to “in place,” Rockport would have that phrase equate to the services being “in use,” which conflicts with a plain reading of the provision.
Even if we were to conclude that there was some ambiguity within this provision, we still cannot say the circuit court erred in finding substantial compliаnce. Where a statute is ambiguous, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. City of Maumelle v. Jeffrey Sand Co.,
It is the purpоse of this subchapter to assist landowners to obtain municipal services by making the services reasonably available. However, nothing in this subchapter shall relieve a landowner from the obligation to pay regular fees and costs for connecting to services or from the obligation to pay the regular cost of the services.
Ark.Code Ann. § 14-40-2001. As we recognized in Jeffrey Sand,
|4t]he purpose and objective of the statute is to provide a mechanism by which a landowner may obtain services. The emergency clause of Act 779 of 1999 identified aggrieved landowners as those currently being “inadequately served by the municipality in which [the lands are] located where the needed services exist in a bordering municipality.” 1999 Ark. Acts 779, § 6 (emergency clause) (emphasis added). This language indicates that the remedy the legislature sought to provide was to give the landowner a means of obtaining services to the property.
Id. at 694,
In the prior appeal where Rockport challenged the initial annexation, this court noted that “it is completely reasonable to conclude that sewer service is necessary to ‘maximize the use and value of [one’s] property.’” Rockport I,
In sum, considering the evidence presented and being mindful of our standard of review, we cannot say that the circuit court erred in finding that there has been substantial compliance with the requirements of section 14 — 40—2002(b)(2)(B)(iii) that the sewer service be provided, acceptеd, and in place within twelve months.
As its final point on appeal, Rock-port asserts that the circuit court erred in failing to recuse where the judge had served as city attorney for Malvern and had also represented parties adverse to Rockport in previous litigation. This prior representation, according to Rockport, goes beyond the possible appearance of impropriety. Rockport further asserts that it met its burden of demonstrating bias and the appeаrance of impropriety. Malvern counters -that the circuit court did not abuse its discretion in denying the motion to recuse where Rockport made no allegation of actual bias or prejudice.
In support of its recusal argument, Rockport relies, in part, on the Code of Judicial Conduct.
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearаnce of impropriety.
In Ark. Code Jud. Conduct R. 1.2 (2010). Rule 2.11 governs the issue of judicial disqualification and lists, among the bases for disqualification, instances where the judge served as a lawyer in the matter in controversy or served in governmental employment, and in such capacity, participated personally as a lawyer concerning the proceeding. Ark. Code Jud. Conduct R. 2.11 (2010). Rockport goes beyond asserting an appearance of impropriety and argues that the impartiality of the cirсuit judge might reasonably be questioned.
The rule is long established that there is a presumption of impartiality on the part of judges. Searcy v. Davenport,
Even if we were to ignore our longstanding rule that bias must be demonstrated, see, e.g., Gates v. State,
Affirmed.
Notes
. Although named as defendants in Rock-port's complaint for declaratory judgment, neither Wright nor Wright-Welch have filed a brief or otherwise taken any action in the instant appeal.
. Although Rockport’s motion to recuse, and now its argument on appeal, refers to Canons 2(A) and 3(E)(1), new canons were adopted by this court and became effective, July 1, 2009. See In re Ark. Bar Ass’n Petition to Amend Code of Jud. Conduct,
Concurrence Opinion
concurring.
Although I agree with the majority that the circuit judge did not abuse his discretion in denying the motion to recuse, I question the majority’s conclusion that our case law and judicial canons require recu-sal only when there is an objective showing of bias or a communication of bias. In certain instances, particularly where there is an economic entanglement between a party and the judge, an appearance of
In Huffman, the judge petitioned this court for a writ of certiorari requesting a review of the admonishment action taken against him by the Judicial Discipline and Disability Commission (JDDC) for violations of Canons 2A and 3E(1) of the Arkansas Code of Judicial | ^Conduct.
|MLast year, the United States Supreme Court held that under some extreme circumstances, the Due Process Clause of the United States Constitution requires judicial recusal. See Caperton v. A.T. Massey Coal Co., Inc.,
Though I agree with the majority in this case, I write only to underscore that in certain circumstances, particularly where a judge is economically benefitted, an appearance of impropriety, rather than proof of actual bias, may require recusal. See Huffman,
. At the time, Canon 2A read as follows: “A judge shall avoid imрropriety and the appearance of impropriety in all of the judge’s activities. A judge shall respect and comply with the law and shall act at all times in a manner that promotes confidence in the integrity and impartiality of the judiciary.” Further, Canon 3E(1) read: "A judge shall perform the duties of judicial office impartially and diligently. ... A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.” As stated in the majority opinion, the Arkansas Code of Judicial Conduct has since been updated and similar language now appears in Rules 1.2 and 2.11 of the Judicial Code.