LITTLE ROCK — A past administrative suspension does not make a lawyer or judge ineligible to run for a judgeship in Arkansas, the state Supreme Court said Wednesday.
The court also said a Supreme Court rule requiring the automatic administrative suspension of a lawyer or judge who fails to pay state license fees on time is unconstitutional.
But the court dismissed an appeal by a former judicial candidate who was struck from the ballot because of a past suspension, saying it was too late to provide a remedy in her case.
The issue initially arose with a voter’s lawsuit challenging the eligibility of lawyer Valerie Thompson Baily of Little Rock to challenge the re-election bid of Pulaski County Circuit Judge Tim Fox. Special appointed Circuit Judge John Cole ruled in March that Bailey was not qualified because of a past administrative suspension within the past six years.
Cole cited Amendment 80 to the Arkansas Constitution, which states that a circuit judge must have been a licensed Arkansas attorney for six years immediately before taking office.
That ruling was followed by lawsuits challenging the qualifications of three other candidates: Fox; lawyer Angela Byrd of Conway, who is seeking a judgeship in the 20th Judicial District; and Circuit Judge H.G. Foster of Conway, a candidate for a different 20th District judgeship. All three have had administrative suspensions within the past six years.
Special appointed Circuit Judge Sam Bird ruled that Fox was qualified, while Pulaski County Circuit Judge Wendell Griffen not only found Byrd and Foster qualified but also ruled that the state Supreme Court’s rule on administrative suspensions was unconstitutional because it violated due-process rights.
Bailey appealed the ruling against her, and voter John Kelly, who had challenged Fox’s qualifications, appealed the ruling against him. Leslie Steen, the clerk of the state Supreme Court, appealed Griffen’s rulings that the law requiring administrative suspensions for late payment of fees was unconstitutional.
Supreme Court Justices Paul Danielson, Karen Baker and Courtney Goodson recused from the case. Gov. Mike Beebe appointed special Justices Raymond Abramson, Woody Bassett and Todd Turner to replace them.
On Wednesday the high court upheld the ruling that Fox was qualified, finding that Fox “remained a licensed attorney during the period of his suspension and his license was not terminated.”
Justice Donald Corbin dissented, saying a plain reading of Amendment 80 indicates that lawyers who have been suspended in the past six years cannot run for positions as circuit judges.
“Because the majority has tortured the meaning of ‘suspend’ in such an absurd way, a lawyer who is suspended, either administratively or for misconduct, may now qualify as a judicial candidate,” Corbin wrote in his dissenting opinion.
The Supreme Court also upheld the rulings that the rule on administrative suspensions is unconstitutional, finding that it “provides for an automatic suspension of a lawyer’s license without procedural due process.”
Corbin and Justice Josephine Hart wrote in separate dissenting opinions that it was not necessary to consider the issue of constitutionality.
The high court dismissed Bailey’s appeal, saying it was moot because the ballots for the May 20 nonpartisan judicial election have been printed and early voting has begun.
Bassett wrote in a separate opinion that he concurred in the decision to dismiss Bailey’s appeal even though the result may appear to be unfair to Bailey.
“The court’s decision in this case may be viewed by the appellant and others as unfair or inconsistent with the outcomes of the three companion cases decided contemporaneously with this one,” he wrote. “I understand and acknowledge that. But sometimes the law cannot provide a remedy to make something right, and this is one of those rare and unfortunate cases.”
Bailey said Wednesday she was shocked that the court failed to “apply its reasoning across the board.” She said she appreciated Bassett’s comments but disagreed with the statement that there was no available remedy.
“They could have declared that position vacant and ordered a special election,” she said. “They could have moved the election back to November. They could have used paper ballots in Pulaski and Perry counties.”
Jeff Priebe, attorney for voter Kristen Hulse, who filed the lawsuit that led to Bailey’s disqualification, said Wednesday, “I agree with the Arkansas Supreme Court.”
Asked about Bailey’s complaint that it was unfair for her to be disqualified while other candidates with past suspensions were not, Priebe said he was not involved in the other cases and could not comment on them.