concurring in part; dissenting in part. I agree with much of the majority’s opinion. However, I have decided to recuse on one of the two ballot-title matters that remain before this court to be decided. The case on which I am recusing involves a constitutional amendment to reduce the salaries of state officers and employees. If passed, it would mean a reduction of the salaries of Supreme Court Justices by almost twenty percent.
On the issues not related to recusal, I agree that Mr. Stilley is attempting to resuscitate an issue long since laid to rest in Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000), and that he has not shown sufficient reason why he should not be sanctioned for this conduct under Arkansas Rule of Appellate Procedure-Civil 11. I also agree that he is not entitled to a fact-finding hearing under Appellate Rule 11. I further agree that an Appellate Rule 11 sanction of striking most of his brief is warranted because Mr. Stilley has filed a frivolous matter in this court. I would not, however, strike that portion of Mr. Stilley’s brief which suggests recusal of this court’s members due to a financial interest in the subject matter. Finally, I agree that this court lacked original jurisdiction to hear his illegal exaction cause of action brought against the members of this court. We appropriately dismissed that claim.
On recusal, Mr. Stilley has requested a declaratory judgment from this court on his proposed Ballot Title and Popular Name concerning a proposed amendment to cap the salaries of all state officers and employees at $100,000 and fringe benefits at 25% of that salary. The Ballot Title and Popular Name have been approved by both the Secretary of State and the Attorney General, as required by Ark. Code. Ann. § 7-9-501 to -506 (Repl. 2000). That issue has not been dismissed by this court. It is still viable and awaits this court’s decision.
I first believe that while Mr. Stilley is not entitled to a fact-finding hearing regarding recusal of the members of this court under Appellate Rule 11, he is entitled to five minutes to argue his renewed motion that the members of this court recuse due to a financial interest in the subject matter of the proposed amendment. An opportunity to be heard on this matter is fundamental due process. We routinely allow movants five minutes to argue any motions prior to oral arguments at our Thursday sessions of court. We allowed Mr. Stilley the same privilege in September 2001 to argue that this court should recuse in a different matter. Stilley v. James, 346 Ark. 28, 53 S.W.3d 524 (2001) (per curiam). I would similarly grant him five minutes to be heard on this recusal motion on the Ballot Tide issue involving capping our salaries.
Secondly, Mr. Stilley, in his renewed motion for recusal, counters this court’s first opinion in White v. Priest, 348 Ark. 135, 73 S.W.3d 572 (2002), by pointing to the fact that the Governor of this state, who is authorized to appoint special justices under the State Constitution following recusal, does not have a direct conflict of interest in this matter because he makes less than $100,000. Thus, the argument goes, the Governor is not suffering under the same disability as the members of this court, and the Rule of Necessity, which requires otherwise disqualified judges to sit when there is no replacement judge available, does not apply. Simply stated his argument is: Because the Governor is not directly affected by the proposed initiative, but only certain employees of the Executive Branch are, the Governor does not suffer from a disabling conflict of interest, comparable to the members of this court, which prevents him from appointing special justices to replace us. Again, I believe that Mr. Stilley should have the opportunity to argue this issue before this court. In today’s opinion, the majority addresses Mr. Stilley’s Rule of Necessity argument in a footnote and refers to other state officers and employees who make over $100,000 a year. At this juncture, I am not convinced that the Governor has a conflict of interest comparable to that of this court. Certainly, special justices appointed by the Governor and sitting on this case would not have the conflict of interest that this court has. The majority should also address the difference in the federal judiciary which has no mechanism for appointment of special judges. The Rule of Necessity obviously applies in federal judicial salary matters; however, our situation in Arkansas, where we do have an appointment process, is different.
Amendment 80, which recently amended our State Constitution with a new Judicial Article, reads:
No Justice or Judge shall preside or participate in any case in which he or she might be interested in the outcome, in which any party is related to him or her by consanguinity or affinity within such degree as prescribed by law, or in which he or she may have been counsel or have presided in any inferior court.
Ark. Const. Amend. 80, § 12. The following section provides for appointment of special justices by the Governor of the State when a justice of our court disqualifies. Ark. Const. Amend. 80 § 13(A). My research has developed no case where the Rule of Necessity has been applied when a process exists for the appointment of a special judge to sit for the disqualifying judge. It occurs to me that the Rule of Necessity would only come into play if the Governor determined he had a conflict and could not appoint special justices.
Recusal is a matter left largely to the discretion of the individual judge. SEECO, Inc. v. Hales, 341 Ark. 972, 22 S.W.3d 157 (2000); U.S. Term Limits, Inc. v. Hill, 315 Ark. 685, 870 S.W.2d 383 (1994) (motion to recuse denied). I therefore recuse and will not participate in the Ballot Title issue on capping the salaries of all government employees at $100,000. My reason for recusal is solely based on my financial interest in the subject matter of the proposed amendment and is not due to any other reason raised by Mr. Stilley. I request Chief Justice Arnold to request that the Governor appoint a special justice as my replacement for this Ballot Title issue only.