Judge Epley seeks recusal in lawsuit by Eureka Council members against Mayor Joy

Monday, June 2, 2008

EUREKA SPRINGS -- Circuit Judge Alan Epley has asked to have a special judge appointed to hear a lawsuit against Mayor Dani Joy.

In an order dated May 23, Epley stated his intention to recuse from the case, in which Pat Matsukis, Ernst Schrader, and aldermen Kathy Harrison, Rae Hahn, and Eric Scheunemann claimed that the mayor did not have the authority to veto a council decision to select Matsukis to fill a vacant seat on the council.

Epley's order was addressed to the Administrative Office of the Courts, and read as follows:

The undersigned hereby recuses in the above styled cause. The Administrative Office of the Courts is hereby requested to assign another judge. The Court is not recusing for any of the reasons stated in the motion filed by the plaintiffs, but for the reason that it was reported to me that Pat Matsukis was engaging in active campaigning for Mr. Crow in the recent election.

The order refers to an election held May 20, in which Kent Crow defeated Epley for Circuit Judge. Crow will take over in 2009.

Officials at the Administrative Office of the Courts would not discuss the specifics of this case, but they said that after such a recusal request, either another sitting judge or a retired judge would be appointed to hear the case, and the case would be heard in Eureka Springs.

Ordinarily, a special judge might be appointed within two weeks, but the election this year has required Epley to recuse from any case in which Crow was a counsel. Although this situation has created a number of cases requiring special judges, the lawsuit against the mayor might take priority because of the timely nature of the complaint. The council term to which Matsukis aspires ends at the end of 2008.

Defendant's answer

In their motion asking for Epley's recusal, the plaintiffs had cited Schrader as a long-time political opponent of Epley, and a Crow supporter. They also alleged that Epley's brother, Lewis Epley, stood to gain financially because of his ties to the Bank of Eureka Springs, which currently holds the city's accounts.

Epley's decision to recuse ends discussion on that point, but the defendants had already submitted an answer to the plaintiffs' motion for recusal. Ralph Ohm, representing Joy in this suit, said both sides will agree on all the essential facts in the case. A judge will not need to take testimony, interpret evidence, or determine the credibility of witnesses. The case will come down to a "simple fact question that will require the Court to apply the law to these facts."

In responding to the two principal contentions from the plaintiffs, Ohm said the plaintiffs had not shown that the city's finances had any direct effect on Lewis Epley. To say the judge should recuse because of some intangible benefit his brother might receive from the city would be "similar to saying that this Court should recuse because Lewis Epley receives an intangible benefit by having the road in front of his house paved by the City of Eureka Springs."

In response to the plaintiffs' argument that Epley should recuse because Schrader has been a political opponent, Ohm cited an Arkansas Court of Appeals case which said a judge would not have to recuse even if he had ruled against a litigant in a previous case, or if that litigant had filed a formal complaint against the judge.

Ohm concluded in his answer that "this Court should retain jurisdiction over this case and allow this case to proceed to a hearing as soon as practical so that this matter can be resolved promptly for all parties involved in this case."

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