dissenting in part. I write to point out OM the judicial canons this court has adopted regarding disqualification by a judge when he or she possesses a financial interest in the subject matter in controversy are confusing. The 1990 Judicial Code provided in relevant part, under Canon 3C (1) and (2), the following:
C. DISQUALIFICATION
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to, instances where:
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(d) he or his spouse . . .
(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
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(2) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household. (Emphasis added.)
Under Canon 3C(3)(c), the 1990 Judicial Code defined "financial interest” as meaning ownership of a legal or equitable interest, however small. (Emphasis added.) When using language such as that found in Canon 3C(3.)(c), other jurisdictions have held that a judge’s ownership of even a single share of stock, worth only a few dollars, would disqualify the judge, even if the litigation would have no effect on the stock’s value. See Marvin Comisky & Phillip C. Patterson, The Judiciary — Selection, Compensation, Ethics, and Discipline § 4.2 (1987); In re Cement Antitrust Litigation, 688 F.2d 1297 (9th Cir. 1982) (judge required to disqualify by reason of wife’s $29.20 stock interest in 7 out of 200,000 class members in antitrust litigation).
By per curiam order issued on July 5, 1993, In the matter of the Arkansas Code of Judicial Conduct, 313 Ark. 735, 753-754 (1993), this court removed the “however small” language found in the 1990 Code. The 1993 Amended Code added a “Terminology” section which defined “economic interest” as denoting, in pertinent part, [the] ownership of a more than de minimis legal or equitable interest . . . except that:
(i) ownership of an interest in a mutual or common investment that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest;
Id. at 739. The 1993 Code defined “de minimis” as an insignificant interest that could not raise reasonable question as to a judge’s impartiality under Sections 3E(1)(c) and 3E(1)(d) (previously 3C(1)(c) and (d) in the 1990 Judicial Code).
In sum, by the amended 1993 Code, our court vacated the “however small” language as well as the idea that a judge must disqualify if he or she owned even one share of stock regardless of how small its value. Instead, this court’s amended version places the emphasis on whether the judge knows he or she has more than a de minimus interest that could be substantially affected by the proceeding. Courts using this test have declined to require disqualification when the judge’s financial interest will not be affected by the outcome of the proceeding. See Marvin Comisky & Phillip C. Patterson, The Judiciary — Selection, Compensation, Ethics, and Discipline § 4.2 (1987) (citing In re Virginia Electric & Power Co., 539 F.2d 357 (4th Cir. 1976)); ff. New Mexico Natural Gas Antitrust Litigation, 620 F.2d 794 (10th Cir. 1980). See also Jeffrey M. Shaman et al., Judicial Conduct and Ethics § 4.20 (3d ed. 2000).
In the instant case, the majority court concludes that there is little doubt that Judge Donald R. Huffman’s action in the WalMart Stores, Inc. case against the United Ford & Commercial Workers International Union would not affect the value of his and his wife’s Wal-Mart stock. This being so, Code section E (1) (d) (iii) would seem to read in Judge Huffman’s favor and not require his recusal. Nonetheless, the majority court looks to another section of the Code, Canon 2A, which generally requires a judge to be impartial and diligent when performing his or her judicial duties. While Canon 2A is certainly a rule all judges should know and comply with as they perform all judicial duties, Canon 2A offers no specific language which addresses the disqualification issue that confronted Judge Huffman. The canons are simply confusing when dealing with the financial interest issue a judge must consider and weigh when deciding whether to disqualify. Although Canon 3E(1)’s wording is unclear, the commentary to it is helpful and the majority opinion seizes upon those comments to uphold the decision of the Arkansas Judicial Discipline and Disability Commission. That commentary reads as follows:
Under this rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless whether any of the specific rules in Section 3E(1) apply.
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A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. (Emphasis added.)
After reciting the foregoing provisions, the majority opinion fashions the following rule:
In a case where a judge and his or her spouse have an economic interest in a party litigant, the first question the judge should consider is whether that 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 was de minimis or not.
Again, what makes this case troublesome to me is the majority court’s conclusion that Judge Huffman’s and his wife’s financial interests in Wal-Mart were not fundamentally affected by his judicial action; yet the Canons, as discussed above, establish the standard that a judge should disqualify if his or her interest could be substantially affected by the proceeding conducted by the judge. The majority court’s decision seems to make the “substantially affected” language in Canon 3E(1)(d)(iii) of no import.
To add to the confusion, the Judicial Ethics Advisory Committee issued an advisory opinion, No. 94-08, which dealt with whether a justice was required to recuse where AT&T Corporation or its subsidiary had an appeal pending before the supreme court. The justice had an interest in about 1,000 shares of an equity income fund, 18% of which was invested in AT&T. The advisory opinion said that AT&T had outstanding shares of over one billion, three hundred million shares, and found:
Your relatively small share of this fund’s relatively small investment in AT&T Corporation clearly meets the “de minimis” test. It would take quite a stretch of the imagination to think that your decision concerning the franchise tax or fee in an Arkansas city could affect the value of the stock of AT&T and consequently the value of this fund. (Emphasis added.)
The advisory opinion ended, stating:
The issue is whether your impartiality might reasonably be questioned because you have an economic interest in the subject matter in controversy or in a party to the proceeding or have any other interest more than de minimis that could be affected by the proceeding. Judges need to consider seriously the issues concerning' disqualification but they also have an obligation to be available to handle the caseload before them. In this instance, the facts as outlined should not require your disqualification. (Emphasis added.)
In conclusion, I agree with the majority’s opinion wherein this court holds for the first time that a judge in Judge Huffman's circumstances should disclose on the record, his or her financial interest in a party litigant when that litigant is a party before the judge. Moreover, I would add- that, if an opposing party presents a reasonable objection,1 concerning that financial interest, to the judge’s further participation and the judge rules adversely, an appeal from that adverse ruling should be subject to appeal. See Ark. R. Sup. Ct. 1-2 (a) (6); cf. Ark. R. App. P. — Civ. 2(a)(8).
Until today’s decision, the Judicial Code required a judge’s financial interest in a party litigant would have to be substantially affected to require recusal. Thus, I would hold Judge Huffman’s action in this cause was not misconduct, since this court is of the opinion that his action was not shown to have substantially affected his financial interest in Wal-Mart.
Such an appeal must comply with the terms set out in Rule 11 of the Rules of Appellate Procedure — Civil.