dissenting. While I agree ustice, to support a finding of contempt in this case, the majority has sidestepped the more critical issue in failing to address Mr. Perroni’s arguments in regard to recusal. Under the facts and circumstances of this case, I believe that Judge Fox should have recused. Therefore, I must respectfully dissent.
The majority gives short shrift to Mr. Perroni’s recusal argument. While the allegations contained in Mr. Perroni’s motion for recusal are recited, the majority opinion is bereft of the facts and circumstances underlying the motion. Instead, after reciting our well-settled principles of law on recusal, the majority quickly disposes of Mr. Perroni’s argument stating, “the primary issue is whether [Mr. Perroni] disobeyed Judge Fox’s scheduling order.” Of vital importance is the majority’s failure to address Judge Fox’s independent investigation in the contempt proceeding he initiated against Mr. Perroni.
In order to understand the context of the argument on appeal, a more detailed statement of the facts is necessary. On February 11, 2003, Mr. Perroni failed to appear and represent his client, Richard Ross, in a criminal trial due to a conflict he had in representing another defendant, Steven Pirani, in federal court. Mr. Ross made an appearance and Mr. Perroni’s law partner, Patrick James, made a special appearance on Ross’s behalf. The State prosecutor reported ready to proceed, but the court continued the case because the defendant did not have representation by counsel. On that same day, Mr. James requested that Judge Fox recuse from the Ross case.
The following day, February 12, 2003, while conducting a bond hearing in the Ross case, Judge Fox entered an order directing Mr. Perroni to show cause why he should not be held in contempt of court for his failure to appear with his client, Mr. Ross, at the February 11 criminal trial. The court scheduled a show-cause hearing for March 14, 2003. On February 18, 2003, Mr. Perroni filed a motion suggesting that Judge Fox recuse from the contempt proceeding. The judge denied this motion. During a hearing conducted by Judge Fox on March 5, 2003, Mr. Perroni again asked Judge Fox to recuse from the contempt proceeding. This oral request was also denied.
Then, on March 10, 2003, Judge Fox directed his law clerk to purchase certified copies of pleadings and orders filed in the federal Pirani case. The judge gave the law clerk cash from his own personal funds to pay for the documents.1 On March 14, 2003, Judge Fox conducted the show-cause hearing. Mr. Perroni again requested that Judge Fox recuse from the contempt proceeding, and the judge once again denied the motion. At the hearing, over Mr. Perroni’s objection, Judge Fox introduced the certified federal documents obtained by his law clerk as evidence in the contempt proceeding. On May 9, 2003, Mr. Perroni filed a fourth and final motion requesting that Judge Fox recuse, which motion was again denied by the judge. On May 14, 2003, Judge Fox entered the order finding Mr. Perroni in willful contempt and ordered him to pay $780.00 as reimbursement for jurors’ fees; $443.72 to reimburse the prosecutor’s office for various witness fees; $55.20 to reimburse Pulaski County for the expense of copying and certifying federal court Pirani pleadings, and a $1,000 fine.
This court’s general standard of review for cases involving recusal is well settled. The decision to recuse is within the trial court’s discretion, and it will not be reversed absent abuse. Anderson v. State, No. Cr02-190, slip op. (April 29, 2004). An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial court, and the burden is on the party seeking to disqualify. Id. To decide whether there has been an abuse of discretion, we review the record to see if prejudice or bias was exhibited. Id. A trial judge’s development of opinions, biases, or prejudices during a trial do not make the trial judge so biased as to require that he or she recuse from further proceedings in the case. Id. Absent some objective demonstration by the appellant of the trial judge’s prejudice, it is the communication of bias by the trial judge which will cause us to reverse his or her refusal to recuse. Id. The mere fact of adverse rulings is not enough to demonstrate bias. Id. Whether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge. Id. The reason is that bias is a subjective matter peculiarly within the knowledge of the trial judge. Id.
We have few cases applying this standard of review to cases where a trial judge declines to recuse from a contempt hearing after issuing an order to show cause. In Clark v. State, 287 Ark. 221, 697 S.W.2d 895 (1985), this court concluded that a trial judge erred in not recusing from a contempt hearing. The court explained that “ ‘a judge’s impartiality can be threatened when the alleged contempt consists of a personal attack on the trial judge, of such a nature that the judge actually becomes embroiled in a personal dispute with the alleged contemnor, or that a ‘normal’ judge would likely be personally affected even though his feelings remain under control, . . .” Id.(citing Mayberry v. Pennsylvania, 400 U.S. 455 (1971)). In Clark, the alleged contemnor’s motion to recuse alleged criminal activity on the part of the judge, which this court considered a “personal attack” that required recusal. Id.
The Clark court relied upon a decision by the United States Supreme Court where a pro se defendant made slanderous statements against the judge during the case, and, instead of immediately holding the defendant in contempt, the court waited until the conclusion of the trial to prosecute each act of contempt. Mayberry v. Pennsylvania, 400 U.S. 455 (1971). The Court held that in such a case, where no injustice would be served by recusal, due process requires a judge to recuse from the contempt hearing to keep a fair and balanced trial. Id. The Mayberry court quoted language from a prior decision:
Whether the trial be federal or state, the concern of due process is with the fair administration of justice. At times a judge has not been the image of‘the impersonal authority of law,’ Offutt v. United States, 348 U.S. 11, 17, 75 S.Ct. 11, 15, 99 L.Ed. 11, but has become so ‘personally embroiled’ with a lawyer in the trial as to make the judge unfit to sit in judgment on the contempt charge.
‘The vital point is that in sitting in judgment on such a misbehaving lawyer the judge should not himself give vent to personal spleen or respond to a personal grievance. These are subtle matters, for they concern the ingredients of what constitutes justice. Therefore, justice must satisfy the appearance of justice.’ Id., at 14,75 S.Ct., at 13.
Mayberry v. Pennsylvania, 400 U.S. at 464.
In this case, Mr. Perroni contends that Judge Fox crossed the line of impartiality when he made an independent investigation of the facts by procuring documents in an unrelated case from a federal court. The State argues that there was not an exhibition of partiality because Judge Fox was at liberty to take judicial notice of the federal documents. This court, however, has held that Arkansas courts are forbidden from taking judicial notice of their own records, as well as records and proceedings from other courts. See Braswell v. Gehl, 263 Ark. 706, 567 S.W.2d 113 (1978); see also Brissett v. Sykes, 313 Ark. 515, 519, 855 S.W.2d 330, 333 (1993) (“Courts may not take judicial notice of prior or pending litigation in other cases, even if those cases are between the same parties.”); Smith v. State, 307 Ark. 223, 228, 818 S.W.2d 945, 948 (1991) (holding that judicial notice may not be taken of the record in a separate case); Southern Farmers Association, Inc. v. Wyatt, 234 Ark. 649, 655, 353 S.W.2d 531, 534 (1962) (“[t]he general rule is that a court will not take judicial notice of its own records or proceedings in another independent case or proceeding, unless required to do so by statute.”).
Not only was Judge Fox prohibited from taking judicial notice of the federal documents, our own Code of Judicial Conduct proscribes his conduct. We have held that the canons and text establish mandatory standards, not mere guidelines. See Horton v. Ferrell, 335 Ark. 366, 981 S.W.2d 88 (1998). The Commentary to Canon 3 of the Arkansas Code of Judicial Conduct provides: “A judge must not independently investigate facts in a case and must consider only the evidence presented.” When Judge Fox sent his law clerk to the federal court to search through the Pirani record and bring back copies to be used in the contempt proceeding, Judge Fox inappropriately conducted an independent investigation into the facts of a case.
The majority’s statements notwithstanding, we have not required a showing of actual bias in all recusal cases. We have stated that where a judge exhibits bias or the appearance of bias, we will reverse. City of Jacksonville v. Venhaus, 302 Ark. 204, 788 S.W.2d 478 (1990). The proper administration of the law requires not only that judges refrain from actual bias, but also that they avoid all appearance of unfairness. Id. In Venhaus, we held that a judge should have recused to avoid the mere appearance of bias. Id. More recently, we held that a trial judge should recuse from deciding Rule 11 sanctions where the judge’s comments and rulings indicated that he was biased. Allen v. Rutledge, No. 03-330, slip op. (Dec. 18, 2003). We related the proceedings to a contempt charge and stated:
[A]ll of such cases . . . present difficult questions for the judge. All we can say on the whole matter is that where conditions do not make it impracticable, or where the delay may not injure the public or private rights, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place.
Id. (quoting Cooke v. United States, 267 U.S. 517, 539 (1925)). Likewise, in Horton v. Ferrell, 335 Ark. 366, 981 S.W.2d 88 (1998), we explained that a master was required to recuse after having made an independent investigation without a showing of actual bias.
We are not presented with a case where Judge Fox’s recusal would have been impracticable or where delay would have caused injury. In addition, by infusing himself into the merits of the underlying proceeding, Judge Fox made an independent investigation and became “personally embroiled” in the matter. Other jurisdictions have come to similar conclusions. See DeSalle v. AppelBerg, 44 Conn.App. 323, 688 A.2d 1356 (1997) (granting a mistrial after a trial judge made an independent investigation); Garrard v. Stone, 624 N.E.2d 68 (Ind. 1993) (granting a new trial after the trial court conducted an independent investigation); State v. McCrary, 676 N.W.2d 116 (S.D. 2004) (reversing a case for resentencing based upon a trial court’s independent investigation). The appearance of an impartial judge is fundamental to our legal system. As the United States Supreme Court aptly stated, “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 17 (1954).
Lest I be misunderstood, I do not suggest that a judge should be required to recuse whenever an order to show cause is issued and a contempt action is pursued. Quite to the contrary, I am well aware that contempt is a unique proceeding where the judge acts as both trier and finder of fact. Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992). Nonetheless, where the judge presiding over a contempt proceeding marshals the evidence to be used at trial by making an independent investigation into the facts, the most fundamental notion of justice and fair play requires the judge to recuse.
For the above stated reasons, I respectfully dissent.
Brown, J., joins.Initially, the judge gave his law clerk cash in the amount of $20. The cost of the certified documents, however, totaled $55.20, whereupon the law clerk wrote a personal check for the difference. Judge Fox subsequently reimbursed his law clerk the sum of $35.20 out of his own pocket. Nothing in the record reflects that the judge requested reimbursement from Pulaski County for the cost of the certified documents.