State Supreme Court seen as ultimate decider of judicial eligibility issue

LITTLE ROCK — Despite a circuit judge’s ruling last week that automatic, administrative suspensions of attorneys is unconstitutional, controversy over the issue is expected to continue until the state Supreme Court weighs in.

Several recent lawsuits challenge the qualifications of judicial candidates in Arkansas under Amendment 80 to the state constitution, which states that a circuit judge must have been a licensed attorney in the state for six years before taking office.

In the first of the challenges, special appointed judge John Cole ruled last month that Little Rock lawyer Valerie Thompson Bailey was not qualified to challenge the re-election bid of Pulaski County Circuit Judge Tim Fox because of an administrative suspension within the past six years. Challenges soon followed against other judges, including Fox.

But last week, Pulaski County Circuit Judge Wendell Griffen ruled that a past administrative suspension does not bar Conway lawyer Angela Byrd from seeking a 20th Judicial District judgeship, as a voter had alleged in a lawsuit.

A Supreme Court rule requires an administrative suspension of a lawyer who fails to pay state license fees on time. Griffen said that the rule is unconstitutional.

“Rule VII(C) affects the property interest of an attorney that accompanies the privilege of practicing law conferred by a law license to the extent that it automatically suspends the ability to practice law because of a delinquent license fee without providing an affected lawyer prior notice and opportunity for hearing,” Griffen said in the ruling. “Because Rule VII(C) violates procedural due process, it is unconstitutional, unenforceable, and must be enjoined.”

Does that resolve the matter? Hardly. Stephanie Harris, communications counsel for the Supreme Court, said the Supreme Court clerk’s office is not bound by a ruling from a lower court.

“The Supreme Court clerk’s office doesn’t take direction from the trial courts,” she said.

There is also the issue of conflicting rulings at the circuit court level. Cole said an administrative suspension is grounds for disqualification; Griffen said it is not. Other judges could reach other conclusions in the cases still pending.

Bailey has asked Cole to reconsider his ruling in her case, and last week she told the Arkansas News Bureau she plans to amend her motion to incorporate Griffen’s ruling. But she admitted that Griffen’s ruling is not binding on Cole.

“It does not affect his decision as far as a precedent or a mandatory authority, of course,” she said. “But I certainly hope it weighs in my favor as far as fairness and equity.”

Bailey’s attorney in her case, Sam Perroni, is also the attorney who filed the challenge to Fox’s qualifications, on behalf of voter John Kelly.

“If we’re going to have equal application of the laws to people in this state, then either both of these people ought to be on the ballot or both of them ought to be off the ballot, period,” Perroni said.

Fox did not return a call seeking comment for this report. A hearing in the lawsuit challenging his qualifications is set for Monday at 1 p.m. in Pulaski County Circuit Court before yet another judge — special appointed judge Sam Bird.

Circuit Judge H.G. Foster of Conway, who is seeking a different seat on the 20th Judicial Circuit than the one Byrd is seeking, is the subject of a challenge from his opponent in the race, lawyer Doralee Chandler of Conway. Foster has petitioned the state Supreme Court to rule that he is qualified despite four administrative suspensions for late fees in the past six years; so far no hearing has been scheduled on his petition.

With the nonpartisan judicial election set for May 20, Bailey said she hopes the controversy lands before the state’s highest court soon.

“I hope it will get in front of the Supreme Court as soon as possible. I hope that one of these cases will get before the Supreme Court, because in general the law needs to be clarified,” she said.