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 impropriety may force a recusal. See Huffman v. Ark. Jud. Discipline & Disability Comm’n, 344 Ark. 274, 42 S.W.3d 386 (2001).
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.1 344 Ark. at 276, 42 S.W.3d at 388. We held that Judge Huffman’s conduct in this case, participating in a case involving Wal-Mart when he held a significant amount of Wal-Mart stock, violated Canons 2A and 3E(1). We said that the first issue to consider in a situation such as this where the judge has an economic interest in a party to the proceeding is whether there is an appearance of impropriety and impartiality under Canon 2A. Reiterating that a judge must avoid all impropriety and any appearance of impropriety and, citing the commentary to Canon 2A, we set out the test for appearance of impropriety as being “whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.” Id. at 283, 42 S.W.3d at 392. In the case where a judge has an economic interest in a party litigant, we said that the judge should consider this test for the appearance of impropriety and determine whether his economic interest would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired. If the answer to this question is yes, we said the judge should recuse.
|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., 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009). In Caperton, Massey’s president contributed “almost $2.5 million to ‘And For The Sake Of The Kids,’ a political organization formed under 26 U.S.C. § 527” that supported of one of the candidates running for the state supreme court. Id. at 873, 129 S.Ct. 2252. In addition, Massey’s president spent “just over $500,000 on independent expenditures” in support of this candidate. Id. That candidate was elected as a state supreme court justice and took part in the decision reversing a $50 million jury verdict rendered against Massey. The Court first recognized that most matters relating to judicial disqualification do not rise to a constitutional level. However, there are additional instances, such as those involving circumstances “in which experience teaches that the probability of actual bias on the part of the judge is too high to be considered constitutionally tolerable,” which, objectively, require recusal. Id. at 877, 129 S.Ct. 2252 (quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)). Rather than have a judge conduct his own review into actual bias in these cases, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias. Id. at 888, 129 S.Ct. 2252. The question to be asked is “whether, ‘under a realistic appraisal of psychological tendencies and human weakness,’ the interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’ ” Id. at 883-84, 129 S.Ct. 2252 (quoting Withrow, 421 U.S. at 47, 95 S.Ct. 1456). The Court concluded that although a judge may conduct his own search for | actual bias, objective standards may also require recusal whether or not actual bias exists or can be proved. Id. at 886, 129 S.Ct. 2252.
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, 344 Ark. 274, 42 S.W.3d 386. Moreover, there are circumstances where a judge’s presence within a case creates such a risk of bias or prejudgment that the Due Process Clause requires recusal. See Caperton, 556 U.S. 868, 129 S.Ct. 2252.
. At the time, Canon 2A read as follows: “A judge shall avoid impropriety 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.