dissenting. I join in Justice Tom Glaze’s dissenting opinion, but write to emphasize that the judge himself concluded he had a disqualifying interest in this case. The trial judge not only acknowledged that he owned property on which he had paid the taxes at issue, but he also acknowledged that his relatives had substantial holdings in the county that would be affected by the case. To cure this conflict, he concluded that he needed to opt out of the class in this illegal-exaction lawsuit. The trial judge then proceeded to decide, albeit erroneously, that he and other similarly situated taxpayers should be afforded an opportunity to opt out of the class. Regardless of whether the judge’s interest actually required his disqualification, the judge’s actions indicate that he considered his and his family’s interests in the case to be a disqualifying impairment. Once a judge concludes that he or she has a disqualifying interest in a case, it is incumbent upon the judge to recuse. Huffman v. Arkansas Judicial Discpline & Disability Comm’n, 344 Ark. 274, 42 S.W.3d 386 (2001).1 A petition for writ of mandamus will not lie to compel a performance of a duty that is discretionary; however, where a judge is ineligible to preside, the judge’s withdrawal becomes ministerial and mandamus is the proper remedy. Copeland v. Huff, 222 Ark 420, 261 S.W.2d 2 (1953). Here, the judge disqualified himself by attempting to opt out. Because he cannot opt out of the constitutionally-created class, he is ineligible to preside. Therefore, I respectfully dissent and would grant the writ of mandamus.
Glaze, J., joins in this opinion.Under these circumstances, the issue of waiver is not relevant.