dissenting. I join in Justice Annabélle Clinton Imber’s opinion, but I write to amplify why Judge Keith should recuse and absent himself from trying a case in which he and his family have a pecuniary interest.
In writing on this recusal issue, I must first point out that this court says it asked the parties to submit briefs addressing five issues, including whether petitioners waived their right to ask Judge Keith to recuse. I will first point to the obvious errors in our court’s request for briefs — first, the county and the school districts never intervened in this case, so they are not parties to this action. Moreover, Judge Keith, who is a party in this case, never raised any waiver issue at trial or in the initial petition for writ of mandamus. In fact, in petitioner Worth’s first brief in this mandamus case, Worth v. Keith, No. 01-1409, Judge Keith never filed any brief in response to Worth’s original petition for writ of mandamus; in the companion case, Worth v. City of Rogers, No. 01-1048, appellees filed a brief, but never mentioned any waiver issue. It was only our court that raised a waiver issue by requesting the opposing “parties” to brief whether the petitioners, Worth and the taxpayers, had waived any allegations bearing on the judge’s disqualification. To make matters worse, this court’s request was made after the mandamus case, No. 01-1409, had already been submitted for decision. See Worth v. Keith, 349 Ark. 731, 732, 79 S.W.3d 387 (2002). In fact, appellees and Judge Keith had already filed their appellate briefs in case No. 01-1048 without mentioning any waiver issue. It is clear that the judge and appellees never raised or mentioned any waiver question to this court because it was not an issue at trial.
Our court clearly erred in requesting that the “parties” brief any waiver issue since waiver was not developed by any party below in either case No. 01-1409 or No. 01-1048, nor did Judge Keith rule on such an issue.1 Once again, this issue was not argued in any briefs filed on appeal until this court asked all parties to do so. In addition, our court compounded its error when, on its own initiative, it also instructed the Attorney General to file a brief on the waiver issue. Id. at 732. By taking these actions, our court substituted its judgment for that of the litigating parties, and it was wrong to do so. In short, no waiver issue was presented or preserved by the parties and this court is clearly wrong in considering the issue.
Next, I point out that, even if a waiver issue had been timely raised before the trial court, the record underscores that the respondents2 never objected to the taxpayers’ timeliness in moving forjudge Keith’s recusal. In fact, at a February 22, 2001, hearing, Judge Keith informed the taxpayers that the judge owned real property in four of the respondents’ taxing units that are involved in this suit, and, in response, the taxpayers’ counsel notified Judge Keith that they might file a motion for him to disqualify. Judge Keith ruled that the taxpayers had until June 1, 2001, to file a motion for the judge to recuse. That was what happened, and, on June 7, 2001, the judge and counsel for the parties argued the merits of the taxpayers’ motion for Judge Keith to recuse. While Benton County’s counsel made the comment to Judge Keith that it was somewhat unusual for him to wait for this juncture in the proceeding to ask for the judge’s recusal, counsel never objected, nor did Judge Keith rule on any waiver issue. Instead, Judge Keith went to the merits of the taxpayers’ recusal motion and denied it.
At a preliminary hearing on the certification motion, held on February 22, 2001, Worth first raised the issue of Judge Keith’s disqualification, contending that, even if the judge chose to opt out of the class action so as to avoid any tax refund, Keith would still be a beneficiary of a rollback, in the event one was ordered. The judge acknowledged the issue, but declined to rule on the question at that time. Instead, he gave the attorneys some time to consult with their clients and to brief the issue.
As previously mentioned above, a second hearing was held on June 7, 2001. At that time, Worth and the other taxpayers formally filed a motion asking the judge to recuse, asserting that once the court ruled that it would certify the lawsuit as a class action, it would be at that point that the judge must consider whether he had an interest that would disqualify him. Judge Keith conceded that, in such a class action, he technically would be a party to the suit because he owned real estate in the county. However, the judge said that, in order to avoid being a party and having a pecuniary interest in any possible tax refunds that might be ordered, he would opt out as a class member. The judge further acknowledged that his wife, father, and son owned property in the county and that his son’s ownership involved a partnership interest that he assumed was substantial. Nevertheless, the judge expressed his belief that his own interest was de minimis and that he could hear the case fairly.
Taxpayer Worth responded that, even if the judge chose to opt out and declined to claim any possible refund, he would still benefit from the possible rollback of millage rates. Worth also argued that, because the suit was an illegal exaction action under Article 16, § 13 of the Arkansas Constitution, the suit was a class action as a matter or law, and thus the petitioners would represent all taxpayers who owned property, even if the judge ruled that those taxpayers — including the judge ■ — • could choose to opt out. Further, Worth contended that, by opting out of the class action, the judge effectively would align himself with the defendants, who have made a concerted effort to solicit opt-outs in the class action. Finally, Worth submitted that, in opting out, the judge exhibited more than merely an appearance of impropriety or a conflict of interest.
The trial court denied the motion to recuse, and ultimately granted the class-certification motion on June 22, 2001, defining the class as “all persons and entities paying real or personal property ad valorem tax for the years 1990 through 2000 and thereafter, until this suit is finally decided in the taxing units so named in this suit, in Benton County.” In the order certifying a class, the trial court specified that the notice sent out to all class members should have an opt-out provision. Following the trial court’s decision, Worth brought the present petition for writ of mandamus, or in the alternative, writ of prohibition, arguing that the judge is a party litigant with a pecuniary interest in the outcome of the litigation who, as such, is without jurisdiction to preside.
Article 7, § 20, of the Arkansas Constitution commands that “[n]o judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be prescribed by law[.] ” Similarly, Ark. Code Ann. § 16-13-214 (Repl. 1999), states that “[n]o judge of the circuit court shall sit on the determination of any cause or proceeding in which he is interested, related to either party within the fourth degree of consanguinity or affinity, or has -been of counsel, without consent of the parties.”
The Code of Judicial Conduct also speaks to the issue of a judge’s interest in a case before him or her. Canon 3E(l)(c) provides the following:
A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where . . . the judge knows that he or she . . . has an economic interest in the subject matter in controversy ... or has any other more than de minimis interest that could be substantially affected by the proceeding.3
(Emphasis added.) The interest that is disqualifying under these provisions is a personal proprietary or pecuniary interest or one affecting the individual rights of the judge. Noland v. Noland, 326 Ark. 617, 932 S.W.2d 341 (1996). To be disqualifying, the prospective liability, gain, or relief to the judge must turn on the outcome of the suit. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998).
While our court has never before addressed the specific question of a trial judge’s recusal in an illegal-exaction class action suit, a number of treatises offer guidelines that help determine when disqualification is appropriate. Generally, “once a person dons the judicial robe, he should generally abstain from taking part in any judicial act in which his personal interests are involved.” Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges, § 7.1, at 201 (1996). Flamm further discusses a judge’s interest in a class action as follows:
The question of whether a judge is a “party” for judicial disqualification purposes may be most difficult to answer in those situations in which the judge is alleged to have an interest in a class action suit. Because in class actions the full membership of the class may not be known until the litigation is far advanced, class members are often treated differently than “parties” in a traditional lawsuit.
* * * *
Whether judicial disqualification is appropriate in a particular class action case may . . . depend on whether the judge is a member of a class that has actually been declared or merely one in which certification may be considered in the future — that is, whether the interests of the judge or his close family members are potential rather than actual.
Id., § 7.3.2. at 206-07. (Emphasis added.) In the present case, Judge Keith and his family, under the court’s majority opinion, indisputably have an actual pecuniary interest at stake.
Another commentator takes an even stricter view, writing that a judge must disqualify when he is a party to a suit, because “the appearance of impartiality, not to mention the reality, is abrogated.” Jeffrey M. Shaman, et al., Judicial Conduct and Ethics, § 4.14, at 135 (3d ed. 2000). With respect to the judge’s participation as a member of a class in a class-action suit, Shaman states as follows:
There remains the issue of whether a judge should be disqualified from class actions in which he or she is a member of a party-class. The rule seems to state that a judge is required to disqualify himself or herself only if the party-class is certified. However, if a possibility exists that a class will be certified, and the presiding judge will be a member of the class, the appearance of partiality may arise in the pleading stage where the existence of the class is alleged. Therefore, the judge should be disqualified from presiding in preliminary matters.
Id. at 136.
In an illegal-exaction case, our common law makes such a suit a class action as a matter of law. Frank v. Barker, 341 Ark. 577, 20 S.W.3d 293 (2000) (citing Carson v. Weiss, 333 Ark. 561, 972 S.W.2d 933 (1998)). The class is comprised of all taxpayers within the taxing unit. Id. at 583. Further, all members of the class share a common interest in the fair and uniform distribution of any rollback by a uniform reduction in the rate of taxation throughout the taxing unit. Id. Here, Judge Keith is a resident of Benton County, and he admitted he owns real property in respondents’ taxing units of Rogers School District, Bentonville School District, and the cities of Bentonville and Rogers. Unquestionably, he has a pecuniary interest in the distribution of any rollback that may result from the case, aside and apart from any potential tax refund, from which he declared he would opt-out.
These facts bring me to the first two of my concerns with Judge Keith’s continuing to preside over this case. First, because he owns property in Benton County and the other taxing units, he is by definition a class member in this illegal-exaction suit. It is “well-settled that a judge is disqualified to preside over a case in which he or she has a financial or property interest that could be affected by the outcome of the case.” Shaman, § 4.20, at 148-49; see also Sturgis, supra; Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1987). As already noted, if the judge concludes that a rollback of the millage rates in Benton County is appropriate, then he will benefit from that tax relief along with all other taxpayers in the county. Second, our court has been placed in the position to consider what would happen in the event it reversed the judge’s ruling with respect to the opt-out provision in the class certification. Of course, that is what has occurred in case No. 01-1048, and the judge, along with all other Benton County taxpayers, have lost their ability to opt-out, and the judge necessarily remains a class member. Here, when he previously ruled that members could opt out, it made him appear that he had a predilection to rule in favor of allowing members to opt out. In addition, as Worth asserts, the judge, in adding the opt-out choices, aligned himself with the defendants, who have actively encouraged class members to opt out.
Additionally, I again emphasize the facts here that several of the judge’s family members own property in Benton County, which causes them to be class members. At the hearing on Worth’s recusal motion, Judge Keith stated that his wife, his father, and his son all own property in the county that would be subject to the refund and roEback elements of the lawsuit; his son’s ownership interests, he noted, were “substantial.” Our statutes and constitution provide that a judge may not preside in a case in which he is related to a party within the fourth degree of consanguinity or affinity. See Ark. Code Ann. § 16-13-214; Ark. Const., art. 7, § 20. Likewise, Canon 3E(l)(c) of the Code of Judicial Conduct states that a judge “shaE disqualify himself” when he knows that he or she, or the judge’s spouse, parent or child “has an economic interest in the subject matter in controversy.” (Emphasis added.)
In addition, I point out that the majority opinion reads that Judge Keith should be able to preside over this litigation because his interest is no more than that of an ordinary citizen or taxpayer. The majority first cites Nowlin v. Kreis, 213 Ark. 1027, 214 S.W.2d 221 (1948). The Nowlin decision has no application to this case. There, a county judge approved petitions for a local option election, when he and his relatives had signed the petitions. The county judge did not have a pecuniary interest involved in that case, nor did his relatives. Moreover, the Nowlin court refused to decide whether the county judge should have presided when approving the petitions because the persons protesting the local option election had waived the aEeged disqualification of the county judge.4 And, finally, the majority opinion cites to the case of Huffman v. Judical Disc. and Disab. Comm’n, 344 Ark. 274, 43 S.W.3d 386 (2001), but that decision is assuredly authority for Judge Keith’s recusal.
In Huffman, this court held as follows:
[Wjhere a judge and his or her spouse have an economic interest [as] a party litigant, the first question the judge should consider is whether that 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. The judge should disclose on the record the judge’s and his or her spouse’s economic interest in the party litigant. If the answer to the question is “yes, ” the judge should recuse, and one need not consider whether the economic interest in the party litigant was de minimis or not.
Huffman, 344 Ark. at 283 (emphasis added). The Huffman court wrote further that it did not matter that the judge’s economic interest in the case was de minimis, because the perception existed that the judge’s impartiality could be questioned. Id. at 284.
In the present case, for the reasons discussed above, it is apparent that Judge Keith’s and his family’s interest as party litigants could create in reasonable minds a question regarding his ability to carry out his judicial responsibilities with integrity and impartiality. It was the judge’s duty, not Worth’s, to disclose his interest, and he waited to do so until February 22, 2001. Once Judge Keith’s disqualification was established, the taxpayers were entided to a writ of mandamus prohibiting the judge from proceeding further. See Hobson v. Cummings, 259 Ark. 717, 536 S.W.2d 132 (1976); Copeland v. Huff, 222 Ark. 420, 261 S.W.2d 2 (1953); see also Black v. Cockrill, 239 Ark. 367, 389 S.W.2d 881 (1965).
In conclusion, I further note that the majority opinion suggests that, if Judge Keith disqualifies, then all other judges will have to do so because, as taxpayers, this litigation will have a statewide impact and will affect any circuit judge assigned to try this case. Of course, this suggestion is spurious because the type of taxpayer litigation involved here, challenges county-wide reassessments and appraisals under Amendment 59, as is best described in Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000). Suffice it to say that when a circuit judge is disqualified to serve in a county-wide tax dispute, Amendment 80, § 13, to the Arkansas Constitution empowers this court’s chief justice with the authority to assign a special judge from another county and district who has no financial interest, like Judge Keith and his family have here.
For the reasons given above, I would grant the writ of mandamus requested by Worth and the taxpayers.
Imber, J., joins this dissent.EXHIBIT 1
TRANSCRIPT OF MOTION HEARING
JUNE 7, 2001
(Cert. Record p. 33-91)
The Court: All right, Worth v. Benton County, et al, City of Rogers, et al. It seems that the first motion before the court we’ll deal with is the motion to recuse. It’s the plaintiffs’ motion for the court to recuse. What is the position of the defendants on this matter?
Mr. Matthews: Your Honor, we did not file anything, but I would say for the record, we believe that the question of whether or not the court should recuse is a matter within the sound discretion of the court and you should consider what your personal circumstances are and whether or not you would be biased. We do not desire your recusal. But we have no objection to you staying on this case. This case has been pending for approximately four years and you have made a number of rulings. One of them has been an appeal to the' Supreme Court and reversed, somewhat unusual (Cert. Record p. 36) for me that we wait until this juncture in the proceeding to ask for your recusal.
Mr. Clark: Your Honor, I believe Benton County and the City of Rogers have filed a response in which we specifically oppose your recusal. We think you ought to stay on the case. There’s absolutely no conflict of interest pointed out by Mr. Evans that would require your recusal or any appearance of impropriety. We request that you stay on the case.
Mr. Evans: I’m not aware that the City of Rogers filed a response.
The Court: I haven’t either. That makes two of us.
Mr. Evans: As for the timing issue, Your Honor, I guess the real issue of timing should be, once the lawsuit is filed, if the court should decide that it is or is not a class proceeding, that it would affect the court’s interest in the subject matter, then it’s really not appropriate. (Cert. Record p. 37)
In this particular case, once it becomes clear the court was going to certify and make the subject matter one that encompassed the entire county, it’s at that point that the court’s interest, should the court have an interest, become one to be considered. The issue was addressed back in February when Mr. Matthews asked the question in chambers and then dealt with it on the record. The court, at that point, said that we were going to question that we should have until June to file the proceeding. The court indicated that the court did own an interest in two of the defendants’ jurisdictions, and we were unaware of all the specifics at that point. Until we really studied the issue and started looking at it and did some research, it takes some time to really formulate as to whether or not this is a concern. (Cert. Record p. 38) After we read those cases, we went back and found the cases we were unaware of, but we read them and realized, wait a minute, this is an issue that has some complication. Back in February we indicated we had some trouble with the fact that the court had indicated to us he might chose to opt-out of this particular case. I don’t think there’s been any waiver or any timing issue. (Cert. Record p. 39) Through the research, I was under a mistaken impression that somehow it did make a difference whether the amount was significant and we found some cases that say that. But the real issue in this particular case is not how much or how valúable — it’s a decision that the court would face in having to make about its own interest. We’ve cited cases for the court that the amount was irrelevant if the court becomes a party to the action. When the court makes it a class, the court becomes part of the class and we frequently refer to the old argument of de minimis or value to the extent of the interest is not really the issue at all.
The Court: To that regard, Mr. Evans, I think that was the discussion that prompted the court saying and more out of concern of the defendants, really, than anyone else that the court technically would become a party by owning real estate in this county. And that if the court would opt-out, not as a statement as to the merits of opting out for anyone else but to clarify (Cert. Record p. 40) that the court is not a party or being a member of the class.
There is apparently some disagreement regarding whether or not the waiver issue was raised or ruled upon. Therefore, attached as an exhibit to this dissent is a copy of the relevant part of the abstract of the hearing on Worth’s motion to recuse. It was on the basis of this record that I determined that the waiver issue or objection was neither raised nor ruled upon.
For our purposes in writing this opinion, the term “respondents” in this instance refers to Benton County, the City of Rogers, and the school districts. We have some difficulty in appropriately describing the role of these parties in this particular proceeding, because the original petition for writ of mandamus involved only Worth and Judge Keith; Benton County and the other parties were not brought into this case until this court sought briefs from them. These parties, besides Judge Keith and Worth, have not formally intervened or been made parties to this case, No. 01-1409.
See also Ark. Const. amend. 80, § 12.
The majority also cites Noland v. Noland, 326 Ark. 617, 932 S.W.2d 341 (1996), but that case in no way applies because the judge there had no pecuniary interest involved in the divorce contest.