dissenting. I respectfully dissent stice, Judge Fox should have recused from the contempt proceedings against Mr. Perroni and that Mr. Perroni should be given the opportunity for a trial before an impartial tribunal.
I. Facts
Because the majority opinion does not fully recite all the circumstances relating to Mr. Perroni’s points on appeal, a more detailed statement will be given.
On July 1, 2000, a felony information was filed by the State against Richard Ross, Mr. Perroni’s client, and two other defendants. Mr. Ross faced felony tax-fraud charges. On August 5, 2002, Mr. Perroni executed an acknowledgment of a scheduling order, which stated that Mr. Ross’s four-day jury trial was scheduled for 9:00 a.m. on February 11, 2003. Judge David Bogard presided at the time. During Judge Bogard’s tenure on the bench, the practice was for the prosecutors to select on jury trial days which cases should be tried first. Capital felonies and child-abuse cases were given top priority.
Mr. Perroni also represented a client, Steven Pirani, in federal court. Mr. Pirani and two co-defendants were charged with numerous felony offenses. On August 9, 2002, Mr. Perroni filed a motion for continuance on behalf of Mr. Pirani, in federal court with United States District Judge Susan Webber Wright. The federal district court entered an order granting a continuance in the Pi rani case on September 4, 2002, and a jury trial for Mr. Pirani and his two co-defendants was scheduled for 9:30 a.m. on February 10, 2003. Mr. Perroni stated that he thought the cases would be severed and that the two co-defendants would be tried first. Judge Wright entered two orders, dated January 6, 2003, and January 17, 2003, respectively, in the Pirani case and recited that Mr. Pirani’s case was scheduled for February 10, 2003.
During a telephone conference on January 31, 2003, Mr. Perroni learned that the federal court had decided to try Mr. Pirani’s case first ahead of his two co-defendants. When Mr. Perroni learned that Mr. Pirani’s case was going to be tried first, he filed a motion for continuance in the Ross case with Judge Tim Fox, the newly-elected judge who replaced Judge Bogard.
On February 4, 2003, the federal district court entered an order, stating that there would be two separate trials of the Pirani defendants with Mr. Pirani’s trial set to begin on February 10, 2003.
On that same day, February 4, 2003, a hearing was held before Judge Fox on Mr. Perroni’s motion for continuance in the Ross case. Mr. Matthew House, an associate of Mr. Perroni’s law firm, appeared before Judge Fox on behalf of Mr. Ross. Judge Fox denied the motion for continuance. That afternoon, Mr. Perroni appeared and made an oral request that the order denying his motion for continuance be reconsidered.
On February 5, 2003, Mr. Perroni appeared at the hearing on his motion for reconsideration. At the hearing, Mr. Perroni told Judge Fox that there was a conflict in federal court because of his Pirani case on February 10, 2003, and Mr. Perroni offered to file a continuance with the federal court. The following colloquy occurred:
Mr. Perroni: But I didn’t have a conflict with being over there [in federal court] on the 10th. I can file a motion •— if you want, I’ll file a motion for continuance with Judge Wright.
The Court: No. I’m just — and it’s been the practice of this court, under the previous judge, that because they had to manage their own dockets, that the prosecutors got to select on jury trial days which ones they felt they were out of time with or which ones were going to go, and that may have been what happened obviously on the capital felony murder thing.
Mr. Perroni: Right.
The Court: That’s not necessarily going to be the case from now on because, for instance, I’m telling you that Mr. Ross has to go to trial. I’ll also be telling them that I don’t care what else is set for that day, this is first out for that day. And that nobody else, no matter what it is, is bumping anything for those three days. This one is going to go to trial.
At that time, Mr. Perroni represented to Judge Fox that the federal district court’s decision to decide Mr. Pirani’s case before his two co-defendants’ was made on January 31, 2003, a few days before the February 5 hearing. Mr. Perroni then made an oral motion to withdraw because he could not try two cases at once. That motion was taken under advisement pending Mr. Ross’s ability to find substitute counsel. On February 7, 2003, Judge Fox sent a letter denying Mr. Perroni’s motion to be relieved as counsel without prejudice.
On February 10, 2003, Mr. Perroni attached a copy ofjudge Wright’s scheduling order, which reflected the February 10, 2003, trial date in the Pirani case to his renewed motion for continuance and renewed motion to withdraw as counsel in the Ross case.
The Ross case was called for trial in state court on February 11, 2003. Mr. Perroni, who was representing his client in federal court, did not appear with Mr. Ross, but Mr. Patrick James, Mr. Perroni’s law partner, appeared on Mr. Ross’s behalf. Because Mr. Ross had not found substitute counsel, Mr. Ross’s trial had to be rescheduled. Judge Fox denied Mr. Perroni’s motion for continuance and motion to withdraw made by Mr. James. Citing Ark. Code Ann. § 16-84-111(b) (Supp. 2003), Judge Fox ruled that Mr. Ross was to be taken into custody.
On the afternoon of February 11, 2003, Mr. James appeared before Judge Fox and moved to dismiss the charges against Mr. Ross and requested that he be released from jail. At the hearing, Mr. James argued three points: (1) that Judge Fox should disclose all ex parte communication involving a letter sent by Judge Fox, (2) that Judge Fox should recuse on the basis ofbias, and (3) that Judge Fox held Mr. Ross in custody in an attempt to punish Mr. Perroni for failing to appear with Mr. Ross that morning. Judge Fox denied Mr. Ross’s release and refused to set a hearing on the matter for the following day.
On February 12, 2003, Judge Fox issued an order to show cause for Mr. Perroni’s failure to appear at Mr. Ross’s February 11 trial. Judge Fox then decided to release Mr. Ross from jail on two conditions: (1) that the bond remain in effect and (2) that Mr. Ross find substitute counsel within two weeks for a July 29, 2003, jury trial. Judge Fox’s decision to release Mr. Ross was based upon information obtained by Judge Fox’s staff, who called the bonding company to inquire about Mr. Ross’s bond. Judge Fox’s staff called the bonding company again on the morning of February 12, 2003, and the bonding company, who had been contacted by Mr. James the previous evening, replied that “they would remain on [Mr. Ross’s] bond pending the next trial setting.”
On February 18, 2003, Mr. Perroni filed a motion requesting Judge Fox’s recusal. In his motion, Mr. Perroni further alleged that Judge Fox violated the Code of Judicial Conduct when he investigated Mr. Ross’s bond. Judge Fox denied the motion.
On March 5, 2003, Judge Fox conducted a hearing on numerous motions filed by Mr. Perroni. Among the motions filed by Mr. Perroni were motions on recusal, impartiality, jury trial, and ex parte communications. Judge Fox denied all four motions.
Subsequently, on March 10, 2003, Judge Fox directed his law clerk, Mr. David Eanes, to go to the United States District Court Clerk’s office for the purpose of obtaining copies of pleadings and scheduling orders in Mr. Perroni’s federal case. Judge Fox gave Mr. Eanes $20.00 cash of his own money to make copies of these documents. Mr. Eanes complied with Judge Fox’s order, went to the federal courthouse, perused the federal file, chose various orders, and made the copies. Because the cost was a total of $55.20, and Judge Fox had given Mr. Eanes $20.00 in cash, Mr. Eanes wrote a check from his personal banking account for the difference of $35.20. Mr. Eanes returned to the county courthouse where he told Judge Fox that the pleadings cost more than $20.00. Mr. Eanes gave the orders and receipts to Judge Fox, and Judge Fox reimbursed Mr. Eanes by giving him $35.20 from his own pocket. Nothing in the record reflects that reimbursement vouchers for this expense were ever filed with Pulaski County.
On March 13, 2003, Mr. Perroni filed a notice of removal of the Ross case to federal court.
On March 14, 2003, the evidentiary portion of Mr. Perroni’s contempt hearing was held. Mr. Tim Dudley represented Mr. Perroni, and renewed Mr. Perroni’s motion that Judge Fox recuse based upon the allegation that Judge Fox was prosecuting the case and was presiding as a judge.
Mr. Dudley also objected to the relevancy of the admission of the federal pleadings in the Pirani case. Specifically, he argued that Judge Fox and his law clerk, Mr. Eanes, conducted an ex parte investigation by going to federal court to retrieve the federal pleadings in the Pirani case. Judge Fox denied the motion for recusal and overruled the objections regarding the federal pleadings. Judge Fox proceeded with the evidentiary portion of the hearing during which Judge Bill Wilson, a federal district judge, testified as a character witness for Mr. Perroni. Judge Fox withheld any decision pending the federal court’s decision on the notice of removal.
The federal district court remanded the Ross case to state court on May 6, 2003.
On May 9, 2003, Mr. Perroni filed a supplement to his motion to recuse, alleging five points: (1) that Judge Fox’s independent investigation was in violation of the Code of Judicial Conduct, (2) that recusal is mandatory as the trial court developed personal knowledge of disputed evidentiary facts concerning the proceedings, (3) that the court exhibited actual bias by serving as the prosecutor and introducing evidence against Mr. Perroni, (4) that the trial court demonstrated actual bias and a conflict of interest by providing testimony against Mr. Perroni, and (5) that Judge Fox must recuse as a party opponent in pending litigation with Mr. Perroni and his law firm concerning the Freedom of Information Act.
Mr. Perroni’s final contempt hearing was held on May 12, 2003. Judge Fox presided over this hearing and denied the motion. Judge Fox found Mr. Perroni guilty of contempt of court.
On May 14, 2003, Judge Fox entered an order finding Mr. Perroni in contempt and ordered him 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 $1,000.00 fine.1
Mr. Perroni timely filed his notice of appeal on May 15, 2003. On May 16, 2003, a hearing was held on a companion Perroni case involving requests made under the Freedom of Information Act, and the trial court ruled that Mr. Eanes’s personal check was a public record under the Freedom of Information Act.
On May 22, 2003, approximately one week after the contempt order was entered, Judge Fox recused from the Ross case.
On appeal, Mr. Perroni makes three allegations of error. First, he argues that Judge Fox erred by failing to recuse. Second, he contends that there was insufficient evidence to find him in “willful” contempt. Third, he argues that Judge Fox committed reversible error by failing to guarantee a jury trial in the contempt proceeding.
II. Scheduling conflict
In addressing Mr. Perroni’s points on appeal, I cannot agree with the majority’s analysis. The majority considers the threshold issue as a question whether Mr. Perroni disobeyed Judge Fox’s scheduling order. Here, there is no doubt that Mr. Perroni did not appear for Mr. Ross’s February 11, 2003, trial. That fact does not appear to be in dispute, and Mr. Perroni’s non-appearance goes to the heart of his second point on appeal involving his alleged contempt.
However, the troubling facts surrounding Mr. Perroni’s non-appearance give rise to his first point on appeal: whether Judge Fox should have recused. The majority views this point on appeal as “superfluous”' and fails to address it. I view the recusal issue as the threshold issue in the case because if this court concludes that Judge Fox should have recused, then he should not have presided over Mr. Perroni’s contempt hearing.
III. Recusal
For his first point on appeal, Mr. Perroni argues that Judge Fox committed reversible error by failing to recuse. Specifically, he makes the following arguments: (1) Judge Fox committed reversible error in serving as a prosecutor; (2) Judge Fox committed reversible error in serving as a witness; (3) Judge Fox committed reversible error in prejudging the case; (4) Judge Fox’s improper incarceration of Ross demonstrated animus and retaliation; (5) Judge Fox’s independent ex parte investigations of the facts of the case mandated his recusal, and (6) there was an appearance of impropriety mandating Judge Fox’s recusal.
The majority calls these sub-issues “superfluous,” but I find them compelling and, ultimately, dispositive of Mr. Perroni’s first point on appeal. For the purpose of this dissent, I will- focus primarily on the allegations involving Mr. Ross’s incarceration as demonstrating retaliation against Mr. Perroni and the issue involving the ex parte investigation as the basis for Judge Fox’s recusal.
This court recently articulated our standard of review for recusal in Manila School Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004), where we stated:
A trial judge has a duty not to recuse from a case where no prejudice exists. Thus, if there is no valid reason for the judge to disqualify himself or herself, he or she has a duty to remain on a case. There is a presumption that judges are impartial. The person seeking disqualification bears the burden of proving otherwise. The trial judge’s decision not to recuse from a case is a discretionary one and will not be reversed on appeal absent an abuse of that discretion. An abuse of discretion can be shown by proving bias or prejudice on the part of the trial judge. To decide whether there has been an abuse of discretion, this court reviews the record to determine if prejudice or bias was exhibited. It is the appellant’s burden to demonstrate such bias or prejudice.
Id. (citation omitted).
Further, judges must refrain from presiding over cases in which they might be interested and must avoid all appearance of bias. Arkansas Dept. of Human Services v. R.P., 333 Ark. 516, 538, 970 S.W.2d 225, 236 (1998). To decide whether there was an abuse of discretion, we review the record to determine if any prejudice or bias was exhibited. Id. The question of bias is usually confined to the conscience of the judge. Id. Judges are presumed to be impartial, and the party seeking disqualification has the burden of showing otherwise. Id.
This court made it abundantly clear in Clark v. State, 287 Ark. 221, 697 S.W.2d 895 (1985), that when remarks indicate that the judge is “embroiled in a personal dispute,” then the judge should recuse from the case. Id.
The Eighth Circuit cited Clark, supra, with approval in Smith v. Lockhart, 923 F.2d 1314, 1322 (8th Cir. 1991), where it stated:
In Johnson v. Mississippi, 403 U.S. 212, 91 S. Ct. 1778, 29 L. Ed.2d 423 (1971) (per curiam), a defendant was cited for contempt during his trial. Id. at 213, 91 S. Ct. at 1779. Johnson moved the judge to recuse himself from presiding over the contempt proceeding because of bias. Johnson then filed a federal civil rights lawsuit naming the judge as a defendant. Johnson again asked the judge to remove himself, which the judge refused to do. The judge found Johnson guilty of contempt and sentenced him to jail. Id. at 213-14, 91 S. Ct. at 1779-80. The Court held that the judge should have recused himself because the federal lawsuit naming him as a defendant made it impossible for him to be unbiased toward Johnson. Id. at 215-16,91 S. Ct. at 1780-81.The D.C. Circuit has explained the import of Johnson:
Thus, the trial judge, by virtue of his status as a defendant in a suit brought by the alleged contemnor, was in an adversary posture with respect to him, and was presumptively biased. This is true even though the judge’s status as an adversary party was created by an action of the alleged contemnor filing suit. . . .
United States v. Meyer, 462 F.2d 827, 842 (D.C. Cir. 1972) (emphasis added).
In general, judges should recuse themselves when they have become enmeshed in personal disputes with parties before them. See, e.g., id. at 836; Clark v. State, 287 Ark. 221, 697 S.W2d 895, 897 (1985). The Supreme Court has explained that “when the trial judge is discovered to have had some basis for rendering a biased judgment, his actual motivations are hidden from view, and we must presume the process was impaired.” Vasquez v. Hillery, 474 U.S. 254, 263, 106 S.Ct. 617, 623, 88 L.Ed.2d 598 (1986) (dicta) (citing Turney v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 445, 71 L. Ed. 749 (1927)); see also Bolden v. State, 262 Ark. 718, 720, 561 S.W.2d 281, 283 (1978); Code of Judicial Conduct, Canon 3(C) (1972) (judges should disqualify themselves when their impartiality “might reasonably be questioned”).
Smith, supra.
Based upon this well-established precedent regarding the recusal ofjudges, I would hold that Judge Fox should have recused in this case on the basis that he held Mr. Perroni’s client, Mr. Ross, in jail out of what Mr. Perroni calls “animus and retaliation” and that he conducted an ex parte investigation at his own expense to obtain evidence that he admitted against Mr. Perroni in his contempt proceeding. The actions of Judge Fox were the subject of litigation in which both Judge Fox and Mr. Perroni were adversaries. It is troubling to me that Judge Fox later recused on May 22, 2003, from the Ross case after declining to recuse from the contempt proceedings against Mr. Perroni. In my view, Judge Fox should have recused at an earlier date.
A. Holding Mr. Ross in custody
From the record before us, it appears to me that Judge Fox gave the appearance of retaliation toward Mr. Perroni through his client, Mr. Ross, when Judge Fox took Mr. Ross into custody.
On the afternoon of Wednesday, February 11, 2003, Mr. Perroni’s law partner, Mr. James, appeared before Judge Fox to secure Mr. Ross’s release from custody and to request that the charges against Mr. Ross be dismissed. The following colloquy occurred:
The Court: Have you had a chance to visit with your client [Ross] about whether he’s intending to keep present counsel or find substitute counsel?
Mr. James: I have not, Judge.
The Court: All right.
Mr. James: Right now, I’m just — and let me say this, Judge, we’re here for a bond.
The Court: No. We’re not here for a bond.
Mr. James: Well,—
The Court: He is in the custody of the court at the present time.
Mr. James: Respectfully, I’d submit it is this court’s obligation to post a bond for this man. And then the issues areWill he appear at the hearing? Is there basis to hold him?
As I read your order — and whether I agree or disagree with it, it’s irrelevant. But the fault or the blame, to a large extent, was cast upon counsel, not upon this man who has been here for these hearings and who has not shown any indication of not being at trial.
And I would submit that he is being unfairly punished for this, whether intentionally or unintentionally, and he should not bear the brunt.
* * *
The Court: Mr. James, I wasn’t inquiring about when federal court starts because I wanted Mr. Perroni to come over here at this point in time and try another full couple of days____I was simply inquiring as to whether there was going to be some time on my docket, either before or after the federal court started, in the next day or so that Mr. Perroni could come over here so we could find out when we can have a trial date and so that I can make a final decision as to what I’m going to do.
And I think you need to be careful about saying that you want to characterize this as is a demand for a bond hearing, because a bond hearing, each side needs to have plenty of time to get whatever witnesses here that they want for the bond hearing to have a correct bond hearing.
Mr. James: Let’s put it this way, we’re asking that Mr. Ross be released, period.
The Court: Then that’s not the same as a bond hearing, I don’t believe, Mr. James.
Mr. James: Well, Judge, I mean, in effect, I respectfully disagree.
* * *
Mr. James: Well, Judge, we’d ask that Mr. Ross be released immediately.
The Court: That’s denied.
Mr. James: Can I have the reasons in the record, please, sir?
The Court: I have gone over all your motions, and I have ruled on them, Mr. James.
Mr. James: But I don’t understand, Judge, the —
The Court: Are you requesting a bond hearing?
Mr. James: Judge, I’m asking that he be released on bond immediately; and that if he is not released, that the reasons be stated for the record.
The Court: Okay. I’m not going any further with going over anything, Mr. James. And if I had counsel for the defendant here for even maybe fifteen minutes so that we could look at scheduling a trial date to continue this matter and get it resolved, then perhaps we could get into that. We don’t have that.
Mr. James: Judge, I don’t understand the urgency for this today when there’s one trial ongoing and this one is not. So, again, I’m going to ask that you state the reasons that this man is being held without bond and is not being released.
The Court: All right. Let’s set a bond hearing date.
* * *•
The Case Coordinator: We could do it either tomorrow or Friday.
The Court: Well, do we have jury trials tomorrow or Thursday?
The Case Coordinator: No. We do not have a jury trial tomorrow. We have reports only. We could do it as —
The Court: Let’s do it Friday morning.
The Case Coordinator: Okay
Mr. James: Judge, we would ask that it be tomorrow morning. This was part of the date that the court had set for this trial. This man is being held without bond during that time period, so we would respectfully not only request that it be held first thing tomorrow, but this court also take judicial notice of the previous proceedings in which Mr. Ross was released on bail.
As I hear the State, they’re saying they don’t have any witnesses. Bond has been in place. There have been no facts with regard to this man sitting here which would justify any type of revocation. There has been no evidence of any type of change of circumstances.
And, in the meantime, he’s being held without bond, and we respectfully submit, Judge, that’s unconstitutional. That’s contrary to both —
The Court: You’ve made that — Mr. James, you’ve made that argument, and I believe that that’s clear for the record that you’ve made that argument. Now can I have a bond hearing Friday morning?
Mr. James: Can the court state on the record why we’re not having a hearing tomorrow?
The Court: I’m not going to go over that again. Can I have a bond hearing for Friday morning, please?
The Case Coordinator: February 14,9:30.
The Court: Now, Mr. James, if I can have the person [Mr. Perroni] that’s going to try the defense of this case for the defendant here for even a very short period of time, any time between now and then that we can arrange to get Mr. Ross here, then I can think about moving this case forward and think about resolving the other problems with this case; but you’re not the person that can do that.
Mr. James: So you’re going to hold him hostage till you get that?
The Court: No, that’s not it.
Mr. James: Without bond, contrary to the Arkansas Constitution.
The Court: Mr. James,—
Mr. James: We renew our motion to recuse,Judge, on the basis of those comments.
The Court: Okay. Okay.
Mr. James: Will you please rule on that?
The Court: That will be denied.
Mr James: Thank you.
The adversarial tone of this colloquy is evidence of Judge Fox’s retaliation against Mr. Perroni by punishing his client, Mr. Ross, for Mr. Perroni’s failure to appear as scheduled and by refusing to release Mr. Ross on the bond he had already made, or to set Mr. Ross’s bond hearing immediately or for the following day on Thursday, February 12, 2003. Mr. James represented to the court that Mr. Ross’s existing bond was still “in place” and that he should be released. Mr. Ross did not appear to be a “danger” under Ark. R. Crim. P. 9. However, Judge Fox refused to set a bond hearing and ruled that Mr. Ross, who had already máde bond and who had previously been released, should be incarcerated for two days until a bond hearing would be held on Friday, February 14, 2003.
It appears that Judge Fox had a change of heart after holding Mr. Ross without bond for one night, as he held a bond hearing for Mr. Ross the next morning on Thursday, February 13, 2003, during which time he revealed that he had instructed his staff to call the bonding company to inquire whether “they’ll stay on the bond.” After the hearing, Judge Fox ruled from the bench that he would release Mr. Ross on the condition that the bond remained and that Mr. Ross takes two weeks to find an attorney for his newly-scheduled July 29 jury trial.
Article 2, § 8, of the Arkansas Constitution provides that “All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when proof is evident or the presumption great.” A criminal defendant has an absolute right before conviction, except in capital cases, to a reasonable bail. Reeves v. State, 261 Ark. 384, 548 S.W.2d 822 (1977). See also Duncan v. State, 308 Ark. 205, 823 S.W.2d 886 (1992).
Based upon this precedent, Judge Fox should have released Mr. Ross on bail. There is an appearance that Judge Fox retaliated against Mr. Perroni by refusing to release Mr. Ross on the bond he had already secured and by keeping him in jail overnight. By rescheduling the bond hearing for early Thursday morning, particularly after being so adamant about having it scheduled for Friday morning, Judge Fox gave the appearance of trying to un-do a hasty decision made out of retaliation against Mr. Perroni. Based upon precedent involving the recusal of judges, as well as our standard of review, I would hold that Judge Fox should have recused at the time that Mr. Ross’s incarceration was considered.
B. Ex parte investigation
In my view, Judge Fox should also have recused because he conducted an exparte investigation in violation of Canon 3(b)(7) of the Arkansas Code of Judicial Conduct.
In contempt cases, a judge sits as a fact-finder. See Ivy v. Keith, 351 Ark. 269, 92 S.W.3d 671 (2002). However, the role of a judge as a fact-finder does not include conducting an independent investigation of the case before him. The Commentaries to Canon 3(B)(7) provide:
Certain exporte communication is approved by Section 3B(7) to facilitate scheduling and other administrative purposes and to accommodate emergencies. In general, however, a judge must discourage ex parte communication and aJlowit only if all the criteria stated in Section 3B(7) are clearly met. A judge must disclose to all parties all ex parte communications described in Sections 3B(7)(a) and 3(B)(7)(b) regarding a proceeding pending or impending before the judge.
A judge must not independently investigate facts in a case and must consider only the evidence presented.
Id. (emphasis added) See also Horton v. Ferrell, 335 Ark. 366, 981 S.W.2d 88 (1998) (holding that a special master, who is subject to the Code of Judicial Conduct, obtained evidence in an ex parte investigation).
Here, Judge Fox conducted an independent investigation when he instructed Mr. Eanes to go to the federal courthouse to review and to copy the Pirani pleadings that he later introduced against Mr. Perroni in the contempt hearing. The copies of these pleadings were paid for by cash out of the judge’s pocket and by a check from Mr. Eanes’s personal checking account. It appears that Judge Fox conducted this ex parte investigation of the federal proceedings to determine the veracity of Mr. Perroni’s statements about a conflict between the Pirani case and the Ross case. These actions constitute a clear violation of Canon 3(B)(7) and display a bias that requires recusal from the case.
In contempt proceedings, a judge determines the credibility of witnesses. See Ivy, supra. However, a judge’s actions should not go beyond the boundaries established in Canon 3B(7). The sitting judge “must consider only the evidence presented.” See Commentaries to Canon 3(B)(7). Here, Judge Fox already had the evidence of the federal scheduling order before him. As the majority points out, “On February 10, 2003, Perroni had a letter delivered to Judge Fox, renewing his motions for continuance and to withdraw as counsel. He enclosed a copy of Judge Wright’s scheduling order which reflected that Steve Pirani’s trial was to begin on February 10, 2003.” If additional evidence was required, Judge Fox could have appropriately ordered Mr. Perroni or the State to provide a copy of the federal docket, as well as any copies of the Pirani federal pleadings, to him prior to the contempt hearing. However, Judge Fox directed his employee, Mr. Eanes, to assist in his personal investigation of the facts, and the material obtained through this ex parte investigation was then introduced by Judge Fox as evidence for his own consideration during Mr. Perroni’s contempt proceedings over which Judge Fox presided.
Based upon these actions, it appears .that Judge Fox became “embroiled in a personal dispute” when he conducted an independent ex parte investigation. Clark, supra. Therefore, based upon our well-established case law regarding a judge’s recusal, as well as our Canons in the Code of Judicial Conduct, I believe that Judge Fox abused his discretion in refusing to recuse at that time.
IV Contempt
For his second point on appeal, Mr. Perroni argues that, as a matter of law, there is insufficient evidence to find him in “willful contempt” under Ark. Code Ann. § 16-10-108(a)(3) (Repl. 1999).
The purpose of criminal contempt is to preserve power, vindicate the dignity of the court, and punish for disobedience of the court’s order. Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988). Pursuant to Ark. Code Ann. § 16-10-108(a)(3), a court has the power to punish, as for criminal attempt, a person for “ [wjillful disobedience of any process or order lawfully issued or made by it.” Id. However, a judge’s power to punish for criminal contempt is not limited by § 16-10-108, as such power is inherent in the courts and goes beyond the power given to judges by statute. Fitzhugh, supra.
A criminal contempt citation must be based on evidence beyond a reasonable doubt. Witherspoon v. State, 322 Ark. 376, 909 S.W.2d 314 (1995). That determination should be made by the judge selected to hear the contempt charges following Judge Fox’s recusal. Only then can an appellate court review a decision unaffected by the appearance ofbias. I note that while Mr. Perroni might have rearranged his federal and state trial schedules at an earlier date, his assertion that he did not recognize an actual conflict between the federal Pirani case, which was scheduled for February 10, 2003, and the state Ross case, which was scheduled for February 11, 2003, until the telephone conference on January 31, 2003, is a question of credibility and should be considered by a trial judge who is not embroiled in a personal dispute with the defendant. Mr. Perroni contended that it “was just decided by Judge Wright just a few days ago [January 31, 2003]” that Mr. Pirani’s federal case was to be tried before his co-defendants’ cases. When Mr. Perroni asked if he should file a continuance with Judge Wright in federal court, Judge Fox responded, “No.” Under Fitzhugh, supra, there is an unresolved issue whether the circumstances of this case would support a finding of sufficient evidence of willful contempt under the statute. Therefore, I would reverse and remand in order that Judge Fox recuse and that a replacement judge be appointed to conduct the hearing.
Because I would hold that the case should be remanded for an impartial tribunal to preside over the contempt proceedings, there is no need to address Mr. Perroni’s third point on appeal involving his right to a jury trial.
V. Conclusion
An analysis of these issues is not given in the majority opinion. Based upon our standard of review regarding the recusal of judges, as well as Canon 3(B)(7), I would hold that Judge Fox did not avoid all appearances of bias when he conducted an independent ex parte investigation to obtain evidence, namely the scheduling order, that had already been presented to him. Because I would hold that Judge Fox should have recused, I would reverse and remand for another judge to preside over the contempt proceedings against Mr. Perroni. Therefore, I would reverse and remand.
As noted above judge Fox had not sought reimbursement for his personal expenses in securing the evidence at the time he ordered Mr. Perroni to reimburse Pulaski County for these expenses.