Reform Recusal in Arkansas

Issue: We are drawing attention to the need for judicial reform, to establish a fair process for ensuring judges recuse, when the appearance of bias or actual bias arises. We are working with advocacy groups to raise awareness of how judicial bias impacts minorities, gun rights advocates, veterans and disabled children. Whether you sign anonymously or proudly display your name, let your voice be heard.

Arkansas' antiquated approach to recusal does not provide the minimal due process rights that should be afforded to every person. Approximately 35 other states have (at a minimum) a two step process to address recusal: (1) recusal requests are presided over by a different judge and (2) interlocutory appeals of recusal are available by writ. Arkansas has neither process in place. This leaves the issue of recusal up to the "conscious of the court" and direct appeal takes years. While most Arkansas judges serve with honor, rules are necessary to safeguard people from the small portion of bad actors that exist. More importantly, bias often operates unconsciously which makes recusal safeguards vital to due process.

Overview
Our U.S. Supreme Court ruled that “judicial integrity is a state interest of the highest order.” White I, 536 U.S. at 793 (2012). Despite this, Arkansas Courts consistently side-step recusal issues to rule on underlying errors of law and fact. That results in higher courts not clarifying or developing law on the recusal issue.

When bias or the appearance of bias is established, a judge’s failure to disqualify himself is a violation of the Due Process Clause of the U.S. Const. and its orders must be vacated. United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996). A biased judge is a structural error not subject to harmless error analysis. State v. Kuenzi, 2013 Wisc. App. LEXIS 694(7th Cir. 2013).

It is therefore vital to due process that higher courts, in every state, have clear and aggressive recusal laws for citizens to rely on.