author: Jim Hannah, Justice. Tom Glaze, Justice, Annabelle Clinton Imber, Justice,

text:
    Clarence J. WORTH, et al. v. BENTON COUNTY CIRCUIT COURT
    01-1409
    89 S.W.3d 891
    Supreme Court of Arkansas
    Opinion delivered November 21, 2002

      The Evans Law Firm, P.A., by: Marshall Dale Evans and Stephanie Dzur, and Hirsch Law Firm, P.A., by: E. Kent Hirsh, for petitioner.

      Mark Pryor, Att’y Gen., by: Jill Jones Moore, Ass’t Att’y Gen., for respondent.

      Matthews, Campbell, Rhoads, McClure & Thompson, P.A., by: David R. Matthews; Clark & Spence, by: George Spence; Ben Lipscomb and Jim Clark, Rogers City Attorney’s Office; and Robin F. Green, Benton County Attorney, for respondents.
   Jim Hannah, Justice.

Petitioners seek a writ of mandamus, or alternatively a writ of prohibition, to prevent the circuit judge from sitting in this case. This case was previously submitted on June 27, 2002, however, we issued a per curiam on July 5, 2002, ordering the parties to brief five additional issues. Worth v. Keith, 349 Ark. 731, 79 S.W.3d 387 (2002) (Worth IT). This case is now resubmitted with the additional briefing.

Petitioners allege the circuit judge must recuse where he or his family may be beneficiaries of any tax refund or “rollback.” We hold that the trial judge, as a property owner and relative of other property owners affected by the action, does not have an interest of the type that disqualifies a judge. Where a judge has no interest in an action beyond that of the general interest which any other taxpayer or property owner has, he or she does not have a personal or pecuniary interest of the type that disqualifies a judge. The trial judge did not abuse his discretion in refusing to recuse.

Facts

We have before us a consolidated case comprised of three lawsuits that were filed in 1997. Respondents filed a motion to dismiss, which was considered as a motion for summary judgment and granted. This court reversed the trial court in Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000) (Worth I). Then, on May 31, 2001, the petitioners filed a motion to recuse.

The Petitioners filed a motion for recusal, asserting that at the class-certification hearing on February 22, 2001, the trial judge disclosed that he owned real and personal property subject to taxation by taxing units named in the suit, and that this meant he would be a member of the class. They also asserted that the trial judge had family members who might benefit, depending on the outcome of the case. The judge stated that he would opt out. However, the Petitioners argued that the judge and his family would still benefit from any “roll back” that might be ordered. The motion for recusal also included the assertion that the judge’s appearance of impartiality would be affected, that he was a party litigant in this matter, and that he had a pecuniary interest in the outcome of the suit that disqualified him to sit as judge. The trial court denied the motion. This petition for a writ of mandamus, or in the alternative, for a writ of prohibition, followed.

Standard of Review

The decision to disqualify is within the trial court’s discretion, and we will not reverse the exercise of that discretion without a showing of abuse. Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999). An abuse of discretion can be shown by proving bias or prejudice. Massongill, supra; Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).

Recusal

In the motion to recuse before the trial court, the Petitioners argued that the trial judge had an interest in the suit as a person owning affected real estate, and that therefore he was a member of the class, and a party litigant, and could not sit as judge. Petitioners further argued the trial judge’s offer to opt out would be of no import because he would benefit from any roll back that might be ordered, regardless of whether he opted out. The Petitioners also argued that the trial judge had a pecuniary interest in the outcome of the lawsuit and, therefore, he could not sit on the case. The Petitioners then asserted the trial judge’s impartiality was called into question because of his interest in the case, and therefore, he could not sit on the case. The Petitioners also asserted that the trial judge’s impartiality might be called into question because of benefits that might be received by the trial judge’s relatives who owned property. Petitioners finally argued that the benefit received by the judge and his family could be substantial. In Worth II, we asked the parties to address the following additional issues:

1. Whether petitioners waived any alleged disqualification based upon the passage of time;
2. Whether petitioners waived any alleged disqualification based upon acquiescing in allowing the allegedly disqualified judge to preside over the case, including hearings, motions, and so on, without moving for recusal until an adverse ruling was made;
3. Whether the trial judge, having a general interest as a property owner and relative of other property owners possibly affected by the case, had a personal or pecuniary interest of the type that disqualifies a judge;
4. Whether the fact that petitioners complain of bias in their favor as the basis for recusal plays a role in analysis; and
5. Whether the trial judge’s offer to opt out of the class plays any role in this analysis.

Worth, 349 Ark. at 732.

Waiver

The disqualification of a judge may be waived. Miles v. State, 277 Ark. 470, 644 S.W.2d 240 (1982). Waiver will be found by a failure to seasonably object. Nowlin v. Kreis, 213 Ark. 1027, 214 S.W.2d 221 (1948). Further, a failure to bring the matter to the judge’s attention may constitute a waiver. Morrow v. Watts, 80 Ark. 57, 95 S.W. 988 (1906), see also Washington Fire Ins. Co. v. Hogan, 139 Ark. 130, 213 S.W. 7 (1919); Pettigrew v. Washington County, 43 Ark. 33 (1884). In Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995), this court stated: “Nonetheless, respondent waited three months before requesting Judge Lineberger to recuse, and when respondent’s request was denied, he never petitioned this court that Judge Lineberger’s assignment was improper and lacked jurisdiction.” Wilson, 321 Ark. at 74. Thus, disqualification of a judge may be waived.

It has long been the law in Arkansas that a party may not speculate on the outcome and thereafter take advantage of a fact supporting disqualification known but not raised by him until after an adverse decision is rendered. Nowlin, supra; Byler v.State, 210 Ark. 790, 197 S.W.2d 748 (1946); Ingram v. Raiford, 174 Ark. 1127, 298 S.W. 507 (1927); Morrow v. Watts, 80 Ark. 57, 95 S.W. 988 (1906); Pettigrew, supra. Petitioners knew of or should have known the facts giving rise to the alleged disqualification on the day the complaint was filed. It would be a poor use of judicial resources to allow a party to wait four years and then complain. Petitioners did not object to the trial judge hearing the motion for summary judgment wherein he ruled against them, and they may not complain now.

The facts before us show waiver. We must note the passage of over four years coupled with a motion for recusal only after an adverse ruling on a motion for summary judgment. Here, the parties were obviously aware they were prosecuting a case in the county where the alleged illegal exaction occurred, and that the judge sitting in that county, as well as his family members, were most likely inhabitants of that county protected against illegal exaction by Article 16, Section 13, of the Arkansas Constitution. Any alleged right to disqualification was waived.

Impartiality

As Petitioners argue, this court has stated that the issue of the appearance of impropriety is a basic issue that must be addressed first. Huffman v. Judicial Discipline, 344 Ark. 274, 42 S.W.3d 386 (2001). In Huffman, supra, we discussed the Canons of the Arkansas Code of Judicial Conduct. Canon 2A states:

Canon 2. A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Canon 3E(1) states as follows:

Canon 3. A judge shall perform the duties of judicial office impartially and diligently.
E. Disqualification
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. ...

As we stated in Huffman, both Canons 2A and 3E(1) require a judge to protect the integrity and impartiality of the judiciary. Under Canon 2A, a judge must consider whether any action he or she takes promotes public confidence in the integrity and impartiality of the judiciary. Similarly, Canon 3E(1) requires a judge to recuse when his or her impartiality might reasonably be questioned. As we also stated in Huffman, an independent judiciary is essential for our society.

Against these concerns must be balanced the judge’s duty to hear the cases that come before him or her. There is a duty not to recuse where no prejudice exists. Massongill, supra. If there is no valid reason for the judge to disqualify himself or herself, he or she has a duty to remain in a case. U.S. Term Limits v. Hill, 315 Ark. 685, 870 S.W.2d 383 (1994). There is a presumption of impartiality, and the party seeking disqualification bears the burden of proving otherwise. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998). The Petitioners have failed to show the appearance of impropriety.

Personal or Pecuniary Interest

A personal proprietary or pecuniary interest, or one affecting the individual rights of the judge, is an interest which will disqualify a judge; however, to be a disqualifying interest, the prospective liability, gain, or relief to the judge must turn on the outcome of the suit. Sturgis, supra. Here, the allegation is that the judge stands to gain the refund of taxes that would occur, as well as any roll back that might result. The amount the trial judge would receive is not quantified by Petitioners. The trial judge, as weE as his father, his wife, and his son, also own property in Benton County. The trial judge characterized his son’s property holdings as “substantial.”

The argument is made that the trial judge is disqualified in that he is presiding over a case in which he is related to a party within the fourth degree of consanguinity or affinity. In fact, Petitioners argue that he is a party to the litigation. Article 7, Section 20, of the Arkansas Constitution, provides 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 described by law. . . .” Ark. Code Ann. § 16-13-214 (Repl. 1999). Further, Canon 3E(l)(c) of the Code of Judicial Conduct provides that a judge “shall disqualify himself” when he knows that he or his spouse, parent, or child “has an economic interest in the subject matter in controversy.”

What must be determined is whether the interests noted above rise to the level that requires disqualification. We note that the case cited by Petitioners did not involve illegal exaction. We also may not ignore that the Canons “suggest that a judge disqualify when his impartiality may be reasonably questioned.” Carton v. Missouri R.R., 315 Ark. 5, 10, 865 S.W.2d 635 (1993). The question becomes whether under the facts in the present case, the impartiality of the trial judge may be reasonably questioned. It may not.

More specifically, the issue before us is whether a trial judge is disqualified from hearing an illegal exaction case where he will receive whatever other taxpayers will receive if the suit were to prevail. That clearly is not the situation where a judge has a personal interest in the outcome of the case as in Byler, supra, where the trial judge presided over a murder case in which the victim was the judge’s wife’s cousin.

We deal in this case with taxes that affect each taxpayer in Benton County and the noted school districts. The judge and three members of his family are such taxpayers. This is not a case where the judge is a party in the typical sense. Before a judge is disqualified, the interest must be more than that of an ordinary citizen or taxpayer. Nowlin, supra. This is restated in 1996 in Noland v. Noland, 326 Ark. 617, 932 S.W.2d 341 (1996), where this court stated that a judge must disqualify himself where he has a personal, proprietary, or pecuniary interest or one affecting his personal rights. An action based upon public issues of annexation, for example, including how that annexation might affect a judge’s taxes, is not a suit of a personal nature, but rather one of a general interest in a public proceeding “which a judge feels in common with a mass of citizens.” Foreman v. City of Mariana, 43 Ark. 324, 329 (1884). This is not the type of interest that disqualifies a judge. Id. Where the judge has no interest in the litigation beyond that of a general interest which any other citizen and property owner has, disqualification is not necessary. Osborne v. Bd. of Improvement, 94 Ark. 563, 128 S.W. 357 (1910).

Petitioners cite to Copeland v. Huff, 222 Ark. 420, 261 S.W.2d 2 (1953), and the later case of Sturgis, supra, arguing that any pecuniary interest, however slight, requires disqualification. Both cases merely mention interests and disqualifying interests. Neither case casts light on the nature of a pecuniary interest. Petitioners argue that Article 7, Section 20, is mandatory, and that therefore Judge Keith had no discretion. In essence, Petitioners argue that Judge Keith, as a taxpayer, is a party to the lawsuit because he is an affected taxpayer. The natural consequence of this analysis will be to quickly find there is no judge to try a case of state wide impact where the matter is of general interest.

In Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978), this court stated, “The ‘interest’ which is disqualifying under these provisions is a personal proprietary or pecuniary interest or one affecting the individual rights of the judge, and the liability, gain or relief to the judge must turn on the outcome of the suit.” Mears, 263 Ark. at 833-34; see also, Sturgis, supra; Noland, supra. These and the other cases cited in this matter are not illegal exaction cases.

In Nueces County Drainage and Conservation Dist. No. 2 v. Bevly, 519 S.W.2d 938 (Tex. Ct. App. 1975), the Texas appellate court discussed whether two justices were disqualified as a consequence of ownership of land in the district where liability for taxes was at issue. The case involved enlargement of a drainage ditch. The Texas Constitution, provides, “No judge shall sit in any case [in which] he may be interested. . . .” Article 7, Section 20, in our own Constitution provides similarly:

No 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; or in which he may have been of counsel or have presided in any inferior court.

Ark. Const, art. 7, § 20.

The Texas Court of Appeals, stated that under its Constitution, “[t]he interest of a judge, in order that he would be disqualified, must in general, be a direct pecuniary or property interest in the subject litigation.” Nueces, 519 S.W.2d at 951. The Texas Court of Appeals went on to say that, “[w]here a judge’s pecuniary interest is not specifically affected, a judge is not by reason of being a taxpayer disqualified from sitting in a case although he may have a merely incidental, remote, contingent or possible pecuniary interest in the subject matter of the suit.” Id. The Texas Court of Appeals also stated, “It was recognized early on in Texas jurisprudence that the mere fact that a judge is a taxpayer of a city does not as such work a disqualification of the said judge. It if were otherwise, it would be difficult, if not impossible, to get cases tried.” Id.

The trial judge is simply a taxpayer like any other citizen. On this basis, Petitioners fail to show that the trial judge’s impartiality may reasonably be questioned.

Lack of Prejudice /Judge Shopping

This is quite a curious case. The prejudice alleged is bias in the favor of the Petitioners. That is a somewhat remarkable complaint. There is no duty to recuse where no prejudice is shown. Osborne, supra.

This case is now more than five years old. In a case this old, it is apparent that the trial judge has presided over more than a few matters in this case. We must also note that Petitioners had to be aware when they filed their suit that the trial judge likely was a property owner and that the trial judge likely had family who owned property. Yet no action toward disqualification was undertaken until late in the case and after the trial judge ruled against Petitioners on the motion for summary judgment. The logical conclusion that arises from these facts must be that Petitioners concluded that they would now be better served by another judge. That is not a basis for disqualification.- Rather, it appears to be forum shopping, something this court has not chosen to encourage for obvious reasons. Patterson v. Isom, 338 Ark. 234, 992 S.W.2d 792 (1999).

The discussion of the Eighth Circuit Court of Appeals in Little Rock School District v. Pulaski County School District, 839 F.2d 1296, 1302 (8th Cir. 1988) is helpful:

At the outset, we note the irony that most of the major parties to this litigation have at some point moved for the removal of the judge. Not surprisingly, the parties have generally discovered grounds for disqualification at approximately the same time that the District Court has ruled for their adversaries on the merits. The recusal statute does not provide a vehicle for parties to shop among judges. . . .

It appears that in the case before us, Petitioners are shopping for a new judge. Our recusal statute is not a vehicle for parties to shop among judges. On that basis, this petition must be denied.

We also note that the parties were asked to brief the issue of bias. The Petitioners stated in their brief that they did not complain of bias.

Finally, we asked to be briefed on whether the trial judge’s decision to opt out of the litigation has an impact on disqualification. Petitioners instead argued about the judge’s status as a party, his alleged personal interest, and issues already discussed above.

The petition for a writ of mandamus, or in the alternative, for a writ of prohibition, is denied.

Glaze and Imber, JJ., dissent and would grant.

Tom Glaze, Justice,

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. 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 respondents 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.

(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. 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.

Annabelle Clinton Imber, Justice,

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). 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.

       In the hearing on June 7, 2001, counsel for the City ofRogers raised the issue of waiver in arguing that the case had been pending for four years, that rulings had been made by the trial court, and that the case had been appealed to the supreme court. Further, in argument at this same hearing, counsel for Plaintiffs stated: “So, I don’t think that there’s any waiver or any timing issue.”

       In Nowlin, supra, the court stated that, “It would, of course, be better practice for the County Judge not to preside in a case where he had signed the petition as his interest might be more than that of an ordinary citizen or taxpayer, which was the interest discussed in Foreman, et al v. Town of Marianna, 43 Ark. 324 and Osborne v. Board of Improvement, 94 Ark. 563, 128 S.W. 357.” Nowlin, 213 Ark. at 1029.

       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.

       Under these circumstances, the issue of waiver is not relevant.


source: Caselaw Access Project

author: Jim Hannah, Justice.

license: Public Domain

text:
    John T. CHANDLER, Square Deal Auto Sales, Inc., Cloverdale Liquor, LLC., Mega Fireworks, Inc., Baselinechicot Mini-Storage, Budget Tax Service, Corn Insurance Agency, Inc., John P. Corn, Meramec Specialty Company, T.E.A. Enterprises v. The CITY OF LITTLE ROCK, Arkansas
    01-1337
    89 S.W.3d 913
    Supreme Court of Arkansas
    Opinion delivered November 21, 2002

      John P. Corn, for appellant.

      Stephen R. Giles, for appellee.
   Jim Hannah, Justice.

Appellants John T. Chandler; Square Deal Auto Sales, Inc.; Cloverdale Liquor, LLC; Mega Fireworks, Inc.; Baseline Chicot Mini-Storage; Budget Tax Service; Corn Insurance Agency, Inc.; John P. Corn, Meramec Specialty Co., and T.E.A. Enterprises, challenged the City of Little Rock’s (“City”) annexation of unincorporated areas or “islands” surrounded by the Little Rock city limits. The trial court found that the City (“Appellee”) met the statutory requirements for annexation. Appellants argue that Appellee did not meet the statutory requirements for annexation because the disputed area was not needed for proper municipal purposes and because the disputed area was not adaptable for prospective municipal uses. We find no error in the trial court’s findings and, accordingly, we affirm.

Facts

On December 7, 1999, the City of Little Rock passed Ordinance No. 18155, which provided for the annexation of eleven unincorporated areas or “islands” surrounded by the Little Rock city limits. The eleven parcels were identified as islands “A” through “K”. On December 17, 1999, Appellants John T. Chandler; Square Deal Auto Sales, Inc.; Cloverdale Liquor, LLC; Mega Fireworks, Inc.; Baseline Chicot Mini-Storage; Budget Tax Service; Corn Insurance Agency, Inc.; and John P. Corn filed suit to set aside the annexation. Appellants Meramec Specialty Co., and T.E.A. Enterprises filed a motion to intervene on May 1, 2000. On June 13, 2001, the trial court entered an order denying and dismissing Appellants’ complaints to set aside the annexation.

Though several issues were raised at trial, Appellants limit their appeal to the issue of the annexation of the “Coleman property,” which is located within Island “D.” The Coleman family has used the property for agricultural purposes. The Coleman property is within the floodway, although a small portion of the northwest corner is designated in the floodplain in a revised, but yet unapproved, map. Mabelvale Pike runs along the eastern boundary of Island D. Part of Mabelvale Pike is in the City, and part is in Pulaski County. Appellants argue that the trial court erred in finding that the Coleman property met the statutory requirements for annexation.

Standard of Review

In annexation cases, there is a wide latitude for divergence of opinion, and consequently, a high degree of reliance must be placed upon the findings of the trial judge. Holmes v. City of Little Rock, 285 Ark. 296, 686 S.W.2d 425 (1985); Faucett v. City of Atkins, 248 Ark. 633, 453 S.W.2d 64 (1970). Our task is not to decide where the preponderance of the evidence lies, but to ascertain whether the trial court’s findings of fact are clearly erroneous. Ark. R. Civ. P. 52; Town of Houston v. Carden, 332 Ark. 340, 965 S.W.2d 131 (1998); Chappell v. City of Russellville, 288 Ark. 261, 704 S.W.2d 166 (1986); Holmes, supra.

Statutory Requirements for Annexation

A city may annex lands which are either (1) platted and held for sale or use as municipal lots; (2) whether platted or not, if the lands are to be sold as suburban property; (3) when the lands furnish the abode for a densely settled community or represent the actual growth of the municipality beyond its legal boundary; (4) when the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or (5) when they are valuable by reason of their adaptability for prospective municipal uses. Ark. Code Ann. § 14-40-302(a) (Repl. 1998). The five criteria of Ark. Code Ann. § 14-40-302(a) are to be considered in the disjunctive, and the annexation of the land is proper when the proof sufficiently complies with any one of the conditions. Holmes, supra; Faucett, supra. If a part of the proposed area does not meet one of the five requirements, the annexation of the entire area is void in toto. Carden, supra; Gay v. City of Springdale, 298 Ark. 554, 769 S.W.2d 740 (1989) (Gay II); Chappell, supra. The burden of proof in an action to prevent annexation is placed on the remonstrants to prove that the area should not be annexed. Carden, supra; Gay II, supra.

Appellants argue that the Coleman property does not meet any of the five criteria of Ark. Code Ann. § 14-40-302(a). Further, Appellants argue that the highest and best use of the Coleman property is for agricultural purposes. Both Appellants and the Appellee agree that the first three criteria, as set out in Ark. Code Ann. § 14-40-302(a), are inapplicable to the present case. At issue are the fourth and fifth requirements of Ark. Code Ann. § 14-40-302(a). Accordingly, we will limit our discussion to the disputed statutory requirements.

Lands Needed for Proper Municipal Purposes

Appellants argue that there is no need for police and fire regulation of the Coleman property. Appellants cite testimony from Stuart Thomas, Assistant Police Chief of the Little Rock Police Department, who testified that he had worked for the City for twenty-two years, and that as of December 21, 2000, he knew of no incidents where the Little Rock Police Department was called to the Coleman property. Buddy Coleman, owner of the Coleman property, testified that he had called the sheriff once after he discovered that children were shooting BB guns at his cows.

Fire Marshal Lane Kinder of the Little Rock Fire Department testified that he had worked for the fire department for thirty-one years and knew of only one incident where the fire department went to the Coleman property. He stated that the fire department was called to the Coleman property after a hay barn had caught on fire. Appellants pointed out that the portion of the property where the barn was located was within the city limits of Little Rock.

Further, Appellants argue that there is no need for the extension of any other municipal purposes, i.e., water and sewer service, to the Coleman property. Jim McClelland, a civil engineer and expert witness for Appellants, testified that he knew'of no municipal services necessary for the Coleman property.

Appellee argues that the testimony of Assistant Chief Thomas and Fire Marshal Kinder, as well as the testimony of county officials, shows that the Coleman property meets the requirements for annexation. Appellee states that, according to the testimony of Assistant Chief Thomas, the annexation of the Coleman property would improve police call response time. Thomas explained that 911 calls are identified and routed by caller location. He testified that if a call were made about an incident occurring on the Coleman property, the call would register as a county address, and thus, the call would be routed to the Pulaski County Sheriff’s Department.

On the other hand, Thomas testified that if a call were made from a City address about an incident occurring in the county, the call would be routed to the Little Rock police, which would then transfer the case to the county sheriff. Thomas also testified that Little Rock police units frequently drive past the Coleman property, and that it would cost the City no more to serve that area upon annexation.

Appellee states that the uncertainty concerning the City boundary around the Coleman property creates a confusing situation for the fire department. Kinder testified that whether the fire department from the City or the fire department from the county responded to a fire on the Coleman property would depend on the exact location of the fire on the property. In addition, Coleman testified that if there were a fire on his property that his employees could not handle, then he would call the Little Rock Fire Department.

The trial court found, through the testimony of city and county fire and police officials, that the City satisfied the fourth requirement of Ark. Code Ann. § 14-40-302(a), that the lands would be “needed for any proper municipal purposes such as for the extension of needed police regulation.” The trial court noted that the City pointed out in its brief that the emergency clause of Act 314 of 1979, which was codified as Ark. Code Ann. § 14-40-501 (Repl. 1998), states that small, unincorporated islands within city limits cause “great confusion to the public and also great expense to municipalities in having to run vital services around these islands.”

The trial court also noted that the sale of fireworks within the city limits is prohibited by ordinance; however, due to the fact that the Coleman family leases the northwest corner of their property for the sale of fireworks, fireworks can be sold in the center of the City.

The trial court found that the extension of needed police regulation to the Coleman property, as well as the sale of fireworks on the Coleman property, justified the annexation under Ark. Code Ann. § 14-40-302(a)(4) (Repl. 1998). The trial court’s findings regarding Appellee’s need to annex the Coleman property for proper municipal purposes are not clearly erroneous.

Adaptability for Prospective Municipal Uses

Appellants argue that Appellee has not met the fifth statutory requirement of Ark. Code Ann. § 14-40-302(a), that the property is adaptable for prospective municipal uses, because annexation of the Coleman property is prohibited pursuant to Ark. Code Ann. § 14-40-302(b)(l) (Repl. 1998). Ark. Code Ann. § 14-40-302(b)(1) provides, in part:

(b)(1) Contiguous lands shall not be annexed when they . . .:
(A) Have a fair market value at the time of the adoption of the ordinance of lands used only for agricultural or horticultural purposes and the highest and best use of the lands is for agricultural or horticultural purposes ....

Ark. Code Ann. § 14-40-302(b)(l) (Repl. 1998).

At the time of the adoption of the ordinance, the Coleman property was being used for agricultural purposes. Appellants argue that the highest and best use of the Coleman property is for agricultural purposes. Appellants and Appellee agree that the City plans to use the Coleman property for open space or parks.

Appellants argue that the testimony of county and city officials, as well as the testimony of expert witnesses, indicates that the Coleman property can be used only for agricultural purposes. Jim Narey, Flood Plain Manager for Pulaski County, testified that the Coleman property is currently located entirely in the floodway. In deposition testimony read for the record, Jim Lawson, Director of Planning and Development for the City, testified that City policy provides that permanent structures cannot be built in the floodway. Bryan Day, Director of Parks and Recreation, testified that the City had no money to buy park property. Tom Ferstl and Bob McCarley, Appellants’ expert witnesses in real estate, testified that it would not be economically feasible to use the Coleman property for anything other than agricultural purposes. Jim McClelland, a licensed engineer testifying for Appellants, stated that it would not be economically feasible to do anything with the property other than leave it as pastureland. Buddy Coleman testified that, in his opinion, the highest and best use of the property was for agricultural purposes. Coleman also testified that he had made efforts to develop the property in the past, but none of his efforts had been successful due to restrictions placed on developing the property.

Appellee argues that the trial court made specific findings that the Coleman property is more valuable for its prospective use as a city park than for its current use as a cow pasture. Day testified that the Coleman property has been included in the City’s Fourche Bottoms Natural Project as an extension of the 1400 acres immediately to the east across Mabelvale Pike, which was annexed in 1996, and is now owned by the City for a proposed chain of parks. The Project will eventually feature natural areas, canoe rentals, and hiking trails through the Coleman property. Dwight Pattison, an independent fee appraiser and city planning consultant, testified that the Coleman property would be best used for industrial and recreational purposes. Pattison testified that soil samples taken from the Coleman property reveal a relatively low quality soil for agricultural purposes. He also testified that many city parks are encumbered with floodplain and floodway designation. Pattison further testified that the soccer fields at Burns Park in North Little Rock were constructed at elevations in the flood-way, which were virtually identical to the floodway elevations of the Coleman property.

After hearing expert testimony from both sides, the trial court determined that the best use of the Coleman property was industrial and recreational, not agricultural. In its findings, the trial court noted that the property is surrounded by the most populous city in the state. The trial court also noted that the property is within walking distance of the University of Arkansas at Little Rock, and that two major shopping centers and other businesses are nearby. The trial court found that the Coleman property was the only parcel in the annexation which is presently used for agricultural purposes. The trial court stated: “It is somewhat ludicrous to state that the highest and best use of any property located where the Coleman property is located - in the geographic center of the City - is agricultural.”

The trial court acknowledged that the Coleman property is used for agricultural purposes by the present owners. However, the trial court noted that in Gay II, we stated that “[t]he fact that land is agricultural and the owner does not want it developed does not determine its fate as to annexation.” Gay II, 298 Ark. at 558. We also stated that “[i]t is proper for a city to annex property if it is needed for the purpose of making improvements and if the value of the land is derived from actual and prospective use for city purposes.” Id.

The trial court acknowledged that much of the Coleman property is in the floodway, and strict federal guidelines apply to any development of floodway land because of flood control. The trial court further acknowledged that structures cannot be built on property located in the floodway, and that property located in the floodway is not suitable for much development. In light of this, the trial court found that many of the City’s parks, i.e., Boyle Park, and North Little Rock’s parks, i.e., Burns Park are located within the floodway.

The trial court also pointed out that the Coleman property has been on the City’s park plan for nearly a century. In Lee v. City of Pine Bluff, 289 Ark. 204, 710 S.W.2d 205 (1986), we stated that “[s]imply because land is in a flood plain does not exclude it from consideration for annexation.” Lee, supra. Further, we stated that “[i]f a city could not encompass a flood plain, it would mean its legal boundary could not be extended beyond a low lying area, creek or swampland, although the growth of the urban area continued on the other side; or it would mean the city limits would somehow have to jump or go through the flood plain.” Id.

We note that part of the Coleman property is in the floodplain, and part is in the floodway. Though Lee discussed property located only in the floodplain, we believe that the reasoning in Lee applies to the present case. The trial court found that many of the City’s parks, i.e., Boyle Park, and North Little Rock’s parks, i.e., Burns Parks are located within the floodway. We find it persuasive that parts of Burns Park were constructed at elevations in the floodway, which were virtually identical to the elevations in the floodway of the Coleman property. Land should not automatically be excluded from consideration for annexation simply because it is located in the floodway.

The trial court heard testimony and viewed exhibits regarding the use of the Coleman property and determined that the best use of the property would be industrial and recreational, not agricultural. The trial court’s findings regarding the best use of the property are not clearly erroneous.

As stated previously, if a part of the proposed area for annexation does not meet one of the five statutory requirements for annexation, the annexation of the entire area is void in toto. See Carden, supra; Gay II, supra; Chappell, supra. In the present case, Appellants argued that the trial court erred when it found that a portion of Islands A through K, specifically, the Coleman property within Island D, failed to meet the statutory requirements for annexation. The order of the trial court in annexation cases will be upheld unless it is clearly erroneous. Ark. R. Civ. P. 52; Carden, supra; Chappell, supra; Holmes, supra. We cannot say that the findings by the trial court in the present case are clearly erroneous. Accordingly, we affirm the trial court’s order dismissing Appellants’ complaints to set aside the annexation of Islands A through K.

Affirmed.

Imber, J., not participating.

       Jim Narey, Flood Plain Manager for Pulaski County, testified that “[t]he floodway is a channel of the river or stream that is used to help displace the base flood, sometimes called the hundred-year flood, so as not to affect a designated amount of rise in the surface elevation of the water.” The floodplain, Narey testified “are lands generally adjacent ... to streams, rivers, creeks that are subject to be inundated by water from any source.”

       Island D consists of small parcels of property containing several buildings which house retail businesses on the eastern boundary, as well as approximately 100 acres of property which belong to the Coleman family. Since the dispute is based primarily on the Coleman property, and not the other small parcels of land located within Island D, for convenience, we will refer to the property as the “Coleman property.”

       At the time the complaint was filed in the present case, Ark. Code Ann. § 14-40-302(a) (Repl. 1998), applied. The 2001 amendment to Ark. Code Ann. § 14-40-302(a) did not alter the statutory requirements for annexation.


author: Jim Hannah, Justice. Annabelle Clinton Imber, Justice,

text:
    Clarence J. WORTH, et al. v. CITY of ROGERS, et al.

    01-1048
    89 S.W.3d 875
    Supreme Court of Arkansas
    Opinion delivered November 21, 2002

      The Evans Law Firm, P.A., by:’ Marshall Dale Evans; Hirsch Law Firm, P.A., by: E. Kent Hirsch, for appellants.

      Matthews, Campbell, Rhoads, McClure, Thompson & Fryauf, P.A., by: David R. Matthews; Robin Green; Jim Clark; Clark & Spence, by: George Spence, for appellees.
   Jim Hannah, Justice.

This is an action pursuant to Article 16, Section 13, of the Arkansas Constitution to protect the inhabitants of Benton County, the City of Rogers, Rogers School District No. 30, Bentonville School District No. 6, and Siloam Springs School District No. 21 from the enforcement of an illegal exaction. Appellants Clarence J. Worth, et ah, appeal an order of class certification under Ark. R. App. P. — Civ. 2(a)(9). Appellants allege that the trial court erred in permitting citizens to opt out from the class, that the trial court erred in failing to prohibit communication and solicitation of the class, and that the trial court erred in denying a motion for recusal. The Appellees agree that the opt-out provisions of Rule 23 are not applicable to the injunctive relief Appellants seek, which is the “roll back” of millage rates for ad valorem tax. The Appellees allege that the relief sought by Appellants requesting a refund of ad valorem taxes to taxpayers in the amount overcharged by the noted taxing units should be subject to opt out allowed under Rule 23. Appellees cross-appeal, asserting the trial court erred in restricting attorneys from making public statements about opting out of the class.

We hold that, under the terms of Article 16, Section 13, of the Arkansas Constitution, the parties to an illegal-exaction suit include all citizens of the county, city, or town affected by the illegal exaction. Because all citizens are parties to the constitutionally created class, the right to opt out as developed under Ark. R. Civ. P. 23, is not applicable in an illegal-exaction suit. We further hold that communication with the affected citizens must be unfettered to determine whether any alleged illegal exaction may have been voluntarily paid, and therefore, not subject to suit under Article 16, Section 13.

Appellants also attempt to appeal the denial of their motion to recuse. The appeal before us is an interlocutory appeal from an order granting a motion to certify a class as allowed under Ark. R. App. P. — Civ. 2(a)(9). The issue of the denial of the motion to recuse may not be heard on this interlocutory appeal. In any event, the issue is moot here because the issue of recusal is the subject of a Petition for Writ of Mandamus, or in the alternative, for Writ of Prohibition, which is presently pending before this court.

Facts

On April 25, 1997, Appellants filed a lawsuit in Benton County alleging that taxing units, including Benton County, City of Rogers, Rogers School District No. 30, Siloam School District No. 21, and Bentonville School District No. 6, were required to make calculations for “roll back” of millage rates for ad valorem taxes under Amendment 59 of the Arkansas Constitution, and that they had not done so. On May 2, 1997, Appellants filed a separate action alleging that the noted taxing units had not “rolled back” the millage rates for ad valorem taxes required after a countywide reappraisal. These two suits were consolidated by an order dated January 23, 1998. Appellees filed a motion to dismiss the consolidated action, which was treated as a motion for summary judgment. The motion was granted. This court reversed that decision and remanded the case for further proceedings in Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000) (Worth I). Thereafter, on May 2, 2001, the case of Larry Timmons v. Benton County, Benton County Case No. CIV-97-361-2 was also consolidated with the two above noted cases.

Appellants below are requesting that the trial court determine if a “roll back” is required, and if so, the Appellants are requesting that the trial court order a refund of ad valorem taxes to taxpayers in the amount overcharged by the noted taxing units, less cost, expenses, and a reasonable and adequate attorney’s fee as determined by the trial court.

On June 22, 2001, the trial court entered a class certification order. It provides an opt-out choice to the class members, as set out in a Notice attached to the certification order. It also prohibits counsel for the Appellees from contacting class members or making public statements about opting out and not opting out.

Standard of Review

This court reviews class certification under an abuse-of-discretion standard. Cheqnet v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995). An abuse of discretion can be shown by proving bias or prejudice. Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999); Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).

Opt Outs

Appellants allege that the trial court erred in allowing opt outs. We hold that in an illegal-exaction case, taxpayers may not opt out of the suit. The right of opt out as developed under Rule 23 does not apply to illegal-exaction suits. Under Ark. R. Civ. P. 23, class members may opt out of a class action if they are not satisfied with the complaint or remedies asserted. USA Check Cashers of Little Rock, Inc. v. Island, 349 Ark. 71, 76 S.W.3d 243 (2002). USA Check Cashers involved a class action created under Ark. R. Civ. P. 23. In a class action established under Rule 23 of the Federal Rules of Civil Procedure, class members have an absolute right to be excluded from the case if they exercise that right within the time allowed under Rule 23(c)(2). Sarasota Oil Co. v. Greyhound Leasing and Fin. Corp., 483 F.2d 450 (10th Cir. 1973). If, in a class action created under Rule 23, a forum state wishes to bind the rights of an absent plaintiff concerning a claim for money damages or similar relief at law, the State must provide minimal procedural due process, which includes, at the least, that an absent plaintiff be provided an opportunity to remove himself or herself from the class by executing and returning an “opt out” or “request for exclusion” form to the court. Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).

Rule 23 creates a suit involving a class that is comprised of many claims, often small claims, and the class-action suit is created to avoid the problems such claims typically present, such as procedural complexities involving numerous joinders, wholesale intervention, and large numbers of lawsuits which would be inefficient and unmanageable. BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000). This court further noted in BNL Equity that without a class action, “numerous meritorious claims . . . might go unaddressed” because alone they are too small to prosecute. See BNL Equity, 340 Ark. at 361. The rationale of the class action is to manage litigation involving numerous class members who would otherwise all have access to court via individual lawsuits. Croyden Assoc. v. Alleco, Inc., 969 F.2d 675 (8th Cir. 1992). To bring a class action under Rule 23, it must be found to be a superior means as opposed to pursuing individual remedies. Drew v. 1st Fed. Sav. & Loan Ass’n. of Ft. Smith, 271 Ark. 667, 610 S.W.2d 876 (1981). A class action under Ark. R. Civ. P. 23 binds together for litigation a number of claims of individuals because they are similarly situated, and because their claims can best be litigated under a class action established under Rule 23. BNL Equity, supra.

However, although an illegal-exaction case is a class action, it is not a class action established under Rule 23. It is created by our Constitution. Article 16, Section 13, of the Arkansas Constitution provides:

Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.

Ark. Const. Art. 16, § 13. Our common law makes an illegal-exaction suit under Article 16, Section 13, of the Arkansas Constitution a class action as a matter of law. Frank v. Barker, 341 Ark. 577, 20 S.W.3d 293 (2000); City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982). An illegal-exaction claim is by its nature in the form of a class action. Hamilton v. Villines, 323 Ark. 492, 915 S.W.2d 271 (1996). An illegal-exaction suit is a constitutionally created class of taxpayers, and suit is brought for the benefit of all taxpayers.

Unlike a class action created under Rule 23, an illegal-exaction suit does not bind together the claims of a number of persons in order to more effectively litigate the claims. Because individual claims that might be compromised are not at issue, the concerns about allowing opt outs are not present. A taxpayer either participates in the illegal-exaction suit already filed, dr in no lawsuit on the illegal exaction. By the terms of the Arkansas Constitution, Article 16, Section 13, every inhabitant of the area affected by the alleged illegal exaction is a member of the class. Every citizen who is an inhabitant of the affected area is regarded as a party to the illegal-exaction lawsuit and is bound by the judgment. Cash, supra; Rigsby v. Ruraldale Consol. Sch. Dist. No. 64, 180 Ark. 122, 20 S.W.2d 624 (1929). As this court stated in McCarroll v. Farrar, 199 Ark. 320, 134 S.W.2d 561 (1939), if an illegal-exaction suit were not a bar to another suit, one citizen after another might institute suit for himself or herself, and this could continue until every citizen in the state had sued. The doctrine of res judicata applies. McCarroll, supra.

An opt out pursuant to Rule 23 is not possible in an illegal-exaction lawsuit. The Arkansas Constitution makes each taxpayer a party. What is at issue in an illegal-exaction case is whether the governmental entity violated Article 16, Section 13. On the other hand, what is at issue in a typical class-action case, such as a tort class action, is the rights of the various members of the class against the defendant. Under an illegal-exaction lawsuit, the reasons for allowing Rule 23 opt outs are not present. All taxpayers are parties as a matter of law. Whatever illegal exaction has occurred and whatever amount of money may be at issue will be unaffected by a decision of a citizen to participate or not to participate in the illegal-exaction suit. The exaction is either illegal, or it is not. Thus, while desire not to participate in the typical tort class action will except a class member from such a suit, it will not except one from a suit based upon illegal exaction. Nor will the desire to retain separate counsel to obtain a better outcome allow for an opt out. If citizens were able to opt out, they would not be able to prosecute their suits individually because, as discussed above, they would be precluded by res judicata.

A suit in illegal exaction long predates Rule 23. An illegal-exaction suit is one brought “necessarily for the benefit of all taxpayers . . . and might as well be prosecuted in the name of one [taxpayer] as of another.” Laman v. Moore, 193 Ark. 446, 100 S.W.2d 971 (1937). In Laman, Laman was granted permission to intervene and be added as a plaintiff. Laman, supra. The original plaintiff objected, arguing that the only proper proceeding for Laman was for him to bring a separate and independent action. Id. This court stated:

The objection was and should have been overruled. The suit was brought by a resident taxpayer to prevent the alleged unlawful expenditure of funds belonging to the city, and, by including another resident and taxpayer of the city as a party plaintiff, did not change the nature or purpose of the suit. The suit as originally brought was necessarily for the benefit of all taxpayers of the city. . .

Laman, 193 Ark. at 447-48.

Any judgment entered will be entered for the benefit of all taxpayers. As noted previously, a person who opted out in an illegal-exaction suit would have no right to proceed alone because he or she would be foreclosed by res judicata. What is at issue is whether an illegal exaction occurred, not whether a given citizen has been wronged. What is sought in an illegal-exaction case is return of taxes wrongfully collected. Relief may be an order that the taxes be refunded. Cash, supra. A personal judgment is not entered. Id.; see also, Laman, supra. While there is no right to opt out in an illegal-exaction lawsuit, it is well settled that voluntary payment of taxes cannot be recovered in an illegal-exaction suit. Elzea v. Perry, 340 Ark. 588, 12 S.W.3d 213 (2000).

Article 16, Section 13, of our Constitution is self-executing and requires no enabling act or supplemental legislation to make its provisions effective. Chapman v. Bevilacqua, 344 Ark. 262, 42 S.W.3d 378 (2001); Samples v. Grady, 207 Ark. 724, 182 S.W.2d 875 (1944). Even though Article 16, Section 13 is self-executing, this court has stated that the legislature may regulate the procedure in illegal-exaction cases so long as the constitutional guarantees set out in Article 16, Section 13, are not abridged. Carson v. Weiss, 333 Ark. 561, 972 S.W.2d 933 (1998); Cash, supra. With regard to procedure in illegal-exaction cases, this court has stated that Ark. R. Civ. P. 23 may serve as a procedural guide. Carson, supra. However, an illegal-exaction case is not governed by Ark. R. Civ. P. 23. Frank, supra. Rather, Rule 23 contains provisions that may be helpful in guiding a trial court in managing illegal-exaction cases.

Rule 23 may act as a procedural guide in illegal-exaction cases as to notice. Notice is required in an illegal-exaction suit. In an illegal-exaction suit, what is first at issue is whether an illegal exaction has occurred. If an illegal exaction is found, the trial court must then determine whether the taxes were collected under protest or whether they were voluntarily paid. It is settled law that voluntarily paid taxes are not subject to an illegal-exaction suit. Holye v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998). We have always followed the common-law rule prohibiting recovery of voluntarily paid taxes. Elzea, supra; Cash, supra; Thompson v. Continental So. Lines, 222 Ark. 108, 257 S.W.2d 375 (1953).

Taxes paid afer the filing of a complaint in illegal exaction are considered to be paid under protest. Elzea, supra. Because we follow the common-law rule prohibiting the recovery of voluntarily paid taxes, nothing prohibits a taxpayer from declaring that he or she voluntarily paid the taxes even after the filing of the complaint. This arguably has the same effect as opting out, except one who voluntarily pays the tax may not later bring the same illegal-exaction suit. Taxes paid voluntarily are not subject to an illegal-exaction suit. The taxpayers should be provided with a notice that is the best practicable, that is reasonably calculated under all the circumstances to apprise the taxpayers of the pendency of the suit, and that describes the suit and affords the taxpayers the necessary notice so that the parties may determine whether the taxes were voluntarily paid. The notice must also apprise taxpayers of the suit in the event they wish to be made a named party to have a more direct say in the remedy, whether it might be a refund or a roll-back. A declaration of voluntary payment might stop some portion of a refund, but it would not affect a roll-back, which by its nature affects all taxpayers. Further, taxpayers should be apprised of the suit in the event they may wish to become a named party because of concerns they may have that the suit is collusive between the existing parties. See Samples, supra.

Communication

Both the Appellants and the Appellees assert error in the trial court’s decision regarding contact with the class members. As already noted, while an illegal-exaction lawsuit has some attributes that make Rule 23 type procedure helpful in managing the case, it is not a typical class action. Because there is no right to opt out, the concerns about communication are not present. Communication. in an illegal-exaction case will not affect numerosity, superiority, typicality, or adequacy, because the issue is not whether individual claims are similar, and as such, they may be considered together. There is but one claim, which is whether the tax constitutes an illegal exaction. Because we follow the common-law rule prohibiting the recovery of voluntarily paid taxes, contact with citizens should occur to determine whether the taxes were paid involuntarily or voluntarily. The concern is whether coercion is being used.

Appellants also attempt to appeal the denial of their motion to recuse. The appeal before us is an interlocutory appeal from an order granting a motion to certify a class as allowed under Ark. R. App. P. — Civ. 2(a)(9). In an appeal from an order granting a motion for certification as a class, the only issues that may be considered on appeal are those issues regarding whether the judge abused his or her discretion in certifying the class under Ark. R. Civ. P. 23. Ark. State Bd. Of Educ. V. Magnolia Sch. Dist. #14, 298 Ark. 603, 769 S.W.2d 419 (1989). The issue of the denial of the motion to recuse may not be heard on this interlocutory appeal.

We reverse and remand the case to the trial court for further action consistent with this opinion on issues of how the class will be handled.

Affirmed in part and reversed in part.

Glaze and Imber, JJ., concurring.

Annabelle Clinton Imber, Justice,

concurring. I agree with the majority’s conclusions but write separately because this case presents us with the opportunity to clarify to what extent the notice provisions of Rule 23(c) serve as a rule of procedure in an illegal-exaction lawsuit. Rule 23(c) provides in pertinent part:

(c) Notice. In any class action in which monetary relief is sought, including actions for damages and restitution, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall: (1) describe the action and the members’ rights in it; (2) advise each member that the court will exclude the member from the class if the member so requests by a specified date; (3) advise each member that the judgment, whether favorable or not, will include all members who do not request exclusion; and (4) state that any member who does not request exclusion may, if the member desires, participate in the litigation, either in person or through counsel.

Ark. R. Civ. P. 23(c) (2002).

(1) Notice Shall Describe the Action and the Members’ Rights in It

The first requirement of notice applies in an illegal-exaction lawsuit because all class members should be notified of the nature of the action and their rights in it. This does not change simply because the class arises by virtue of Article 16, section 13 of the Arkansas Constitution.

(2) Notice Shall Advise Each Member That the Court Will Exclude the Member from the Class If the Member So Requests by a Specified Date

The second requirement does not directly apply to an illegal-exaction lawsuit. The majority correctly concludes that taxpayers cannot opt out of an illegal-exaction suit. However, this court recognizes the common-law voluntary-payment rule, i.e. “[w]hen one pays money on demand that is not legally enforceable, the payment is deemed voluntary. Absent fraud, duress, mistake of fact, coercion, or extortion, voluntary payments cannot be recovered.” Douglas v. Adams Trucking Co., Inc., 345 Ark. 203, 212, 46 S.W.3d 512, 518 (2001). We have consistently applied the voluntary-payment rule to cases of illegal exaction:

The reasoning underlying the common-law [voluntary-payment] rule is that governmental entities budget annually and ordinarily spend revenues within each tax year. When the government is on notice that it may be required to refund those taxes, it can make allowance for a possible refund. See Mertz v. Pappas, 320 Ark. 368, 896 S.W.2d 593 (1995) (citing Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d at 578 (1995)). However, if the governmental entity allowed refunds for taxes voluntarily paid in previous years, current and future funds might be required to make the refund and governmental operations would be jeopardized. Id.

Oxford v. Perry, 340 Ark. 577, 582, 13 S.W.3d 567, 570 (2000).

In the instant case, or in any case of an illegal-exaction lawsuit, a taxpayer can declare that he or she has paid the taxes in question voluntarily and waives any right to a refund. Because the taxing unit is not required to refund taxes voluntarily paid, the refund that would have been due to the taxpayer would not be included in the common fund in the event that the plaintiffs prevail in the action. Therefore, while it would be incorrect to tell a taxpayer that he or she can opt out of an illegal-exaction lawsuit, it would be proper to inform a taxpayer of the right to waive a refund.

(3) Notice Shall Advise Each Member That the Judgment, Whether Favorable or Not, Will Include All Members Who Do Not Request Exclusion

The third requirement of notice applies to an illegal-exaction lawsuit, although the reference to all members “who do not request exclusion” is irrelevant. As has already been mentioned in connection with Rule 23(c)(2), there is no right to opt out of an illegal-exaction suit. Thus, the notice required by Rule 23(c)(2) must advise each member that the judgment will include all members of the class, none of whom may opt out. In other words, all class members have the right to know that the action will be binding on them. This is even more important in an iEegal-exaction case because, as the majority points out, the class members would be foreclosed by the doctrine of res judicata from filing individual suits later to assert their rights for the same aEeged iEegal exaction.

(4) Notice Shall State That Any Member Who Does Not Request Exclusion May, If the Member Desires, Participate in the Litigation, Either in Person or Through Counsel

The fourth notice requirement also applies to an iEegal-exaction lawsuit because the class members need to be informed of the right to intervene and participate in the litigation if they conclude their rights are not being adequately protected by the named class representatives or class counsel. Once again, the reference to any member “who does not request exclusion” is irrelevant in the context of an iEegal-exaction case.

Glaze, J., joins in this opinion.

         Numerosity, superiority, typicality, and adequacy are not considered in an illegal-exaction suit. Those issues go to the question of whether a class can be certified. In an illegal-exaction suit, the suit is a class action as a matter of law. Frank, supra.


author: Per Curiam.

text:
    Edward Henry BUIE v. STATE of Arkansas
    CR 02-1195
    89 S.W.3d 929
    Supreme Court of Arkansas
    Opinion delivered November 21, 2002

      John C. Goodson, for appellant.
    No response.
   Per Curiam.

Appellant Edward Henry Buie, by and through his attorney John C. Goodson, has filed this motion for rule on the clerk. We deny the motion.

Appellant was convicted in the District Court of Hot Springs, Garland County, Arkansas, of driving while intoxicated^ — first offense, improper lane change, and refusing a chemical test. He timely appealed each of these convictions to the Garland County Circuit Court. A jury trial was scheduled for June 26, 2002, with a readiness hearing scheduled for June 18, 2002. Appellant failed to appear at the readiness hearing, and the trial court subsequently dismissed his appeal on June 20, 2002. On July 3, 2002, Appellant filed a motion for new trial. This motion was denied by the trial court on July 7, 2002.

Appellant attempted to lodge a notice of appeal from the trial court’s order denying the new trial by sending a facsimile of the notice to the Garland County Clerk’s office on August 8, 2002. According to Appellant’s counsel, the clerk’s office contacted him the following day requesting verification of the facsimile sent on August 7. The clerk’s office did not receive the notice of appeal on August 7, because their facsimile number had changed; thus, the notice was not received until August 8, the thirty-first day following the entry of the trial court’s order. Thereafter, the clerk of this court refused to lodge the transcript of this matter, because the notice of appeal had not been timely filed.

This court has held that we will grant a motion for rule on the clerk, which we will treat as a motion for belated appeal, when the attorney admits that the notice of appeal was not timely filed due to an error on his part. See, e.g., Brazil v. State, 332 Ark. 74, 959 S.W.2d 55 (1998) (per curiam); Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam). In the instant matter, however, the attorney does not admit fault that the notice of appeal was not timely filed due to an error on his part. It is well settled that a statement that it was someone else’s fault or no one’s fault will not suffice. Jones v. State, 334 Ark. 236, 973 S.W.2d 483 (1998) (per curiam); Brazil, 332 Ark. 74, 959 S.W.2d 55. Accordingly, we must deny Appellant’s motion.

We order Appellant’s attorney to file within thirty days from the date of this per curiam order a motion and affidavit accepting full responsibility for not timely filing the notice of appeal, and upon filing same, the motion for belated appeal will be granted and a copy of this opinion will be forwarded to this court’s Committee on Professional Conduct. See Brazil, 332 Ark. 74, 959 S.W.2d 55.

Motion denied.