*1 400 of PATTERSON, Director Capacity His
Walt Official Services; Department of Human Department R.T., al. v. et Human Services 784 777 S.W.2d 89-64 of Arkansas Court Supreme 26, 1990 February delivered Opinion Counsel, and Breck G. Debby Nye, General Thetford Counsel, Human General Hopkins, Deputy Department Services, for appellants. Stockley and Jeanette Whatley, J. Central Arkansas Griffin Arkansas, Wolfman, Legal and Brian Services; Service of
Legal for appellees. Jr., Chief Justice. This focuses Holt, appeal
Jack chancellor. question concerning disqualification presiding thus, case; we We find should have recused from this that she reverse remand. adults, and as four appellees, individually parents minors, friends in equity
next of six filed this class action suit to 42 on behalf pursuant (1982) U.S.C. of: § *2 Themselves and guardians, all and custodians parents, whose children have been found a court of by competent to jurisdiction be or and abused dependent/neglected in been the a relative or or placed custody of other person institution, but who have not in a placed been state- foster care and approved program, receiving who are not the mandated to the statutorily services reunite family. The appellees alleged below that the appellants, Department Patterson, of Human Services and Walt Director of the Depart- ment, had failed provide to the same reunification services to the members of the class that are to or provided parents, guardians, custodians and their children been where the children have placed care, in foster state-approved thereby violating the Arkansas Juvenile Code of 1975 Code Ann. 9-27-301—9-27-367 [Ark. §§ (1987)] and the due and process clauses of the equal protection fourteenth amendment. for They stating asked relief declaratory failure them appellants’ provide to with reunification ser- vices mandated Juvenile Code violated their and statutory constitutional rights and for injunctive relief requiring to appellants services to provide and amend their policies. When this filed, action was it was assigned to First Division of the Pulaski County Chancery Court. The case was transferred to the Third Division be heard by to the Honorable Judith Rogers. thereafter, Shortly filed a motion an appellants order of asking recusal chancellor herself. The disqualify motion was denied.
After hearings numerous and several amendments to the pleadings, agreement was reached as to new parties a class, definition of the and the chancellor entered an order However, chancellor, accordingly. in on the her decision merits, a established new class as follows:
All parents, guardians, or custodians and their children who, 1, 1985, since July judicial have been involved or proceedings Services Human Department [where agents its has in which (including SCAN) been party] finding of or has been sexual abuse dependency/neglect entered and has child(ren) resulted in placement institution, who are relative, and or or person with a other same in the future the or will not receive receiving being which are provided to reunite the family services in a state- have been placed their children who families and care, receiving perma- who are not foster and approved reviews in those and periodic service nency planning is not where reunification possible. situations decision, found that the appellees’ the chancellor In this had merit and statutory claims due equal process, protection, the same services to class provide ordered appellants where the to families children members as are provided foster care have been placed state-approved children the order of the court. In amend their to conform to policies addition, to establish an the chancellor ordered the appellants *3 From this for reunification services. implementation process order, appellants appeal. reversal, erred that chancellor in
For contend appellants We make six additional refusing agree. recuse. Appellants however, we do not address them inasmuch arguments appeal; as the issues in the be different on remand. may case
“A of judge must avoid impropriety appearance Arkansas of Conduct Commentary Code Judicial impropriety.” 2 should (1988). judge disqualify Canon Accordingly, “[a] might in a reasona proceeding himself in which his impartiality Conduct be . . . Code of Judicial bly .” Arkansas questioned 3(C)(1) (1988). Canon bias, of
Where a
exhibits bias or the
judge
appearance
v.
Ark.
this court will reverse. Burrows
Forrest
260
City
City,
of
686,
712,
Jester,
In supra, trial, which could been understood reasonably have would litigants as an of one witness testimony implication witnesses. receive more than of other testimony consideration himself, In chancellor holding disqualified should we stated: must not be fair and proceedings only impar-
[C]ourt they must to be fair and This appear impartial. tial — factor is mentioned in a Comment found in 71 Michigan 538, entitled, Law Review of of “Disqualification Interest 455”, Lower Federal Court Judges: 28 U.S.C. as follows: § judge’s “Another factor to be considered in a decision to is the of disqualify contention that appearance so, is as if not impartiality important, more than actual 1952, In Justice his impartiality. Frankfurter explained disqualification in a case by stating ‘justice should reasonably to be well be appear disinterested as so fact.’. . . More the Court set recently aside arbitra- tion award and stated that tribunal ‘(a)ny permitted by law to cases and try controversies not be must only unbiased but also must avoid even the of ” bias.’ Likewise, Conduct, the Code Judicial prepared by Special Committee on Standards of Judicial Conduct of Association, the American Bar this court adopted by Per 5,1973, Curiam Order of November the Commen- tary Canon 2 out points that not must a only judge avoid all but must impropriety, avoid also any appearance impropriety.
In thereof, motion appellants’ to recuse and brief in support *4 they alleged that Chancellor Rogers should recuse inasmuch as she is an active member of the Planning Task Force Permanency sponsored by the National Council of Juvenile and Court Family Judges, “an advocacy group which has taken public positions with respect to the questions which are of this policy subject litigation” and and supported drafting in the of Act participated 868 of 1985. They also claimed that she should she recuse because has and, provided services to the a Juvenile Justice Commission result, “will participate a number proposals regarding policy questions which could be a matter of in this case.” litigation
In response, admitted appellees the chancellor’s member- Force, ship in the Permanency Task but that the Planning denied Task Force and supported drafted Act 868 of 1985. the appellants’ in her order Rogers, denying Chancellor recusal, on the Perma- for acknowledged membership motion Commission, Force Juvenile Justice Task and the nency Planning that it advocacy group; and noted the Task Force is not relief dealing sought with the advisory has not opinions issued Commission has not that the Juvenile Justice plaintiffs; involved; no that she possesses discussed of case presently the type recusal; and facts to warrant knowledge evidentiary of disputed does not her on committees in question membership affect her impartiality. on the Juvenile Justice membership
The chancellor’s Force Task does Permanency Planning Commission and nor do we find that any automatically require disqualification, bias resulted from the chancellor’s membership necessarily However, her identification organizations. in these participation with these her conduct com organizations, coupled trial, exhibited the ments and at during pretrial proceedings short, In should recused. appearance of bias. she certification, for During hearing a motion class chancellor, in to cross-examination of response appellees’ expert witness, Rossi, Rossi’s on whether home concerning position Amy state, should remarked: “I placement trigger intervention statement, want make I’ve looked at the definition of an since I’m I’m much an in this expert, going say pretty expert . . .” area.
Later hearing, following in this between exchange witness, Nash, chancellor and took place JoAnn appellees’ expert during direct examination: Nash, counsel):
Mr. Ms. were Stockley (appellees’ me to review some case files? employed by Ms. Nash: Yes. case, You foster it was say, frequently Court: “Unlike were with relatives
noted in cases where children placed without it was the to close the case agency’s goal plan- reunification without attempts permanency *5 for the child.” ning Yes, Judge
Ms. Nash: Rogers. it, close The Did on “the is to without say goal Court: it wording you got for” —or what was the that that? attempts No, it wording Ms. Nash: would that was the say agency’s goal placement. to close the case due to relative — Ms. Nash: Can I refer to a particular example Well, The Court: Sure. says, one out that “even in pull those instances it when was that opinion agency desirable, reunification was not no possible perma- and/or nency was planning assistance even re- provided though quested relative.” Do have one those? by Ms. Nash: Yes. Good,
The Court: let’s that one. pull From this scenario it is obvious to this court that chancellor, during stages early proceedings, the trial communicated the of bias to litigants declar- ing she that was an and then expert directing appellees’ witness to furnish the court with certain types of case files that would bolster the appellees’ allegations.
In examining another pretrial proceeding appellants’ dismiss, motion to we find further comments the chancellor a basis for provided litigants her question reasonably disinterest: —
Mr. Stockley: Even if I could make one comment because I need to be clear on this Even if all these myself. date, cases got resolved before trial we still have class — has been certified is entitled to The Court: Some relief. — —
Mr. Stockley: to the relief or no I mean relief. Yeah, I agree Court: with that. honor, counsel): disagree Ms. Nye (appellants’ Your I *6 — If a to continuing keep that. there there’s responsibility to the class alive and if at a time we come point definition — trial second, now, wait second. The Court: Well wait a a services ahead and deliver to all these Suppose go you really we haven’t which is changed system, but people about, which what the are and is what this caring plaintiffs court .... cares about and is to on the Nye: my point
Ms. Certainly it,of a issue to being legal declaratory aspect respect remaining the treatment of the class definition.
The Court: It’s issue as to whether certainly legal respect or not their 1983 but get damages things, and people whether go guidelines or not we ahead and set for future action have over and because we seen it and over happen class, again over members of a I think that’s a little ahead go different. Then I think court can and do that and the court’s to do I know it’s difficult but going very that. may I’m to do it. We here between and the going sit now 30th, 29th or we’re going get go but to to going —we’re ahead and see that these named only individually services, we set sort of plaintiffs given up are but that some system, or court order which is then by agreement appeala- ble, to will to . . that we not do this children. . say The By mind-set of the chancellor is to us. apparent commenting, ahead and deliver you [appellants] go “Suppose services to all what these which is people, really plaintiffs about, are and this court about [appellees] caring what cares ,”. . . chancellor has declared before trial the appellees are entitled to heard receive services before she had evidence any on the merits their services. further concerning entitlement to She exhibited the of bias she stated “we’re when going go ahead and see not these named individually only services, are but plaintiffs given that we set some sort up court . . .” system, by agreement [Emphasis or order. added.] gone beyond chancellor’s involvement had obviously announcing seemed outcome objectivity, and the court to be of the case was before it was tried. The of the court’s tone remarks
administrative nature judicial. and not Likewise, the chancellor’s during provided remarks trial cause litigants her For question reasonably impartiality. Rossi, example, during the of Ms. witness testimony first “— commented, know, called the chancellor appellees, you I don’t think Ms. Rossi will or real trouble case finding you should it to Stockley] give have —be able her [Mr. “Was this one say, of the cases found did you that basis *7 go ahead? Do you remember that found that said it you case services, didn’t provide through could cases and find you go your it?” addition, chancellor,
In the in to a one of response request by the attorneys, stated: “Yes Counsel if think you may inquire. short, that is my patience it is not my because is short patience case, this particular it is because I have been with this dealing I for eleven system years and I do see an although improvement, do not enough see . .”. improvement. [Emphasis added.] of Later, the chancellor expressed of wit- appreciation appellee’s ness, Nash, Ms. that it acknowledging Nash’s made testimony of what I easier for her to “make some sense out [the chancellor] wanted to do . . . .” [Emphasis added.]
In law, the chancellor’s findings of fact and conclusions of she gave effect to ordering her earlier remarks by appellants provide services the their appellees change system and to by amending their policies to conform to her order. course,
Of a judge a case without a trying jury develop may “bias” trial may and that “bias” progresses, ultimately however, result in the is, court’s judgment. It the communication of that bias at times inappropriate ways inappropriate will cause us to reverse. is That what has in this case. happened While we suggest no violation or intentional misconduct knowing chancellor, on the it part we reverse this decision because was so tainted of appearance prejudgment.
As Justice
Black stated for United States
Court
Supreme
Murchison,
In Re
high
its
(1955),
Reversed and Remanded.
408 J.,
Hays, dissents. J., not participating.
Glaze,
Hays, Justice,
do not share the view of
I
dissenting.
Steele
shown such
have
appellants
prejudice
that the
majority
court can conclude the chancellor
judge
trial
that an appellate
trial
long,
from
This was a
involved
should have recused
the case.
certification,
issues,
including
majority
class
complex
yet
from a
excerpts
of isolated
only subjective
offers
interpretation
sense,
strongest
its
In their
position.
record to sustain
voluminous
short, believe, of the sort of
segments
these
fall
I
considerably
cases require.
demonstrable
which our
“objective,
prejudice”
328,
(1983).
279
We
I
is matter
recusal
correctly
must be
to the discretion
the trial
largely
judge.
which
left
Co.,
304,
Sloss v. Farmers Bank &
Ark.
719
Trust
290
S.W.2d
Narisi,
1059,
v.
Ark.