LITTLE ROCK -- A circuit judge who wouldn't recuse from a case involving an attorney who supported the judge's campaign rival will now have to entertain the possibility of recusal again, according to a Wednesday ruling.
The Arkansas Court of Appeals reversed a 2014 decision by White County Circuit Judge Tom Hughes in which he denied a motion to remove himself from hearing an insurance probate case in which the plaintiff was represented by an attorney who believed Hughes was biased against him.
The judge later issued orders sealing allegations made against him by the attorney and preventing those involved in the case from publicly discussing the allegations.
In an opinion written by Court of Appeals Judge Mike Kinard, the court found there was enough substance to Searcy attorney James Simpson's allegations the judge was prejudiced about him to warrant a hearing on whether Hughes should remove himself from the case.
With no dissenting opinion, the court stopped just short of finding Hughes should have recused, saying such a decision "is initially a matter within the trial court's discretion."
Simpson represented Roger Ferren in a probate case concerning the estate of Ferren's wife after her death.
Simpson filed a motion for Hughes to recuse, arguing there was "both apparent and actual bias" against him and Hughes' impartiality was "brought into question."
According to the Court of Appeals opinion, Simpson contended Hughes publicly called Simpson "an obscene name," suggested Simpson thought he deserved special treatment because of the law firm he works for, and "blamed the attorney for the judge having an opponent in his recent bid for reelection."
The opinion added Simpson accused Hughes of being angry with him because his work in a previous case "resulted in the judge being cast in a negative light" and prompted a complaint against Hughes with the Judicial Discipline and Disability Commission.
David Sachar, the director of the commission, said Wednesday no complaints against Hughes have resulted in sanctions, but couldn't reveal whether or not any such complaints were pending or had been dismissed.
The Court of Appeals opinion said Simpson's motion seeking Hughes to recuse accused Hughes' wife -- a local attorney -- of telling a friend of his she was "going to get Simpson" for a "perceived 'slander'" after Simpson had written a letter that favored Hughes' election rival.
Hughes, who was first elected to his post in 2008, was challenged by Searcy attorney Carla Fuller and defeated her in the May 2014 election.
Simpson's firm contributed money to Fuller's campaign, which spent $29,415, compared with the $34,638 spent by Hughes in his re-election bid.
After Simpson's effort to seek Hughes' recusal, Hughes entered an order redacting the contents of Simpson's filings, which included affidavits and other evidence.
The judge ordered Simpson and others involved in the case not to discuss publicly any of the redacted information.
Hughes, Simpson and Ferren didn't return calls seeking comment Wednesday.
Simpson's attorney, Brett Watson, said he couldn't comment on the case because of Hughes' no-discussion order, but noted in his experience, decisions like the ones in this case are rare.
"It's irregular, unusual for attorneys to file a motion asking [a judge] to recuse," Watson said, noting in regard to the no-discussion order "generally speaking, it's not that unusual in cases where you have Social Security numbers and medical records being tossed around ... you might have these large blanket types of sealings of the record."
John DiPippa, a dean emeritus at the law school at the University of Arkansas in Little Rock, also said the case is unusual.
"In a context like this, where a lawyer is saying I want to remove this judge because 'I don't think he likes me,' it's probably pretty rare," DiPippa said. "Typically, things don't get to that point. Either the judge steps out early, or lawyers avoid the court."
DiPippa said orders to seal documents and orders against public discussion aren't unheard of in criminal cases with sensitive information or in some domestic cases. But he said such decisions raise concerns over the public's right to know what is happening in courts.
"Without knowing's what's in [Simpson's arguments], it's got to be pretty bad for it to reach this point. There are some serious First Amendment problems with [Hughes'] orders," DiPippa said.
"If it says anything, it's an argument against electing judges, because judges are human beings. It's a natural reaction to to not be warm to someone who has roundly criticized you. ... These things happen. It's another reason why we ought to have a better system [for picking judges] than have judges run for a position like this."
Tom Larimer, the head of the Arkansas Press Association, agreed with DiPippa that Hughes' decisions should concern those interested in transparency in the courts.
"Obviously there's some very inflammatory information in there that, were it to be aired publicly, could do some damage professionally," Larimer said. "I don't know but we'll never know that because they won't release that."
NW News on 09/20/2015