LITTLE ROCK — The Pulaski County Election Commission has to include a blank for write-in candidates in a circuit judge’s race - allowing voters to enter the name of ousted Pulaski County Circuit Judge Willard Proctor Jr. - because the ballots must go to a printer Monday, the county’s chief deputy attorney told commissioners Friday.
Proctor filed as a write-in candidate Wednesday for his former post and was certified. Proctor also simultaneously filed a lawsuit against Secretary ofState Charlie Daniels to challenge the constitutionality of Arkansas Code 16-10-410, the state law that bars judges who have been removed from office from ever seeking or being appointed to a judicial position. The judicial election is May 18. Early voting is to begin May 3.
Because of the short time frame, and since the Election Commission isn’t a party to Proctor’s lawsuit, Amanda Mitchell, chief deputy county attorney, advised the three member commission in an emergency meeting Friday afternoon that it “doesn’t have any reason to get involved.”
“You don’t have any authority to take him off the ballot,” Mitchell said. “You cannot grant the relief the plaintiff is seeking.”
Under questioning led by Commissioner Phil Wyrick, Mitchell explained that there is no alternative for the commission but to include the blank for any write-in candidate to be named because there is a certified write-in candidate - Proctor. Voters can enter any names they choose, but Proctor is the only one certified. The deadline for write-ins to file in the nonpartisan judicial races was Friday.
“The ballot will have the blank on there regardless,” Mitchell said. “As it stands now, that blank is going to appear on the ballot because the ballot goes to the printer Monday.”
Any challenge to the election would need to be done by other candidates, not the commission, Mitchell said. Voters could also challenge Proctor’s candidacy.
“This board’s job is to conduct an election and not to advocate for one candidate or another,” she said.
The candidates who filed for the post are Wrightsville District Judge Rita Bailey, former Court of Appeals Judge Wendell Griffen and Causley Edwards, a state administrative law judge.
Earnest Sanders, who was appointed by Gov. Mike Beebe to finish Proctor’s term, is ineligible to seek election to the post.
The Arkansas Supreme Court removed Proctor from office in January after ruling that he’d violated ethics codes with his leadership of the Cycle Breakers probation program in his courtroom and had questionable relationships with some probationers. He sued in federal court within a week, seeking to be returned to office to finish out his term and to be allowed to file for re-election.
A federal judge two weeks ago rebuffed Proctor’s challenge to a state law that bars him from seeking re-election. The judge didn’t rule on the merits of Proctor’s legal arguments but said Proctor’s only recourse would be to challenge the Arkansas Supreme Court at the U.S. Supreme Court.
Proctor’s lawsuit filed this week claims lawmakers overstepped their authority by approving a law in 1989 that codified the framework for the state’s judicial disciplinary system.
In his seven-page lawsuit, Proctor is asking Pulaski County Circuit Judge Mackie Pierce to strike down the provision that bars Proctor from the bench. He argues that the law establishes qualifications for judges that contradict the Arkansas Constitution, where the qualifications for judges are delineated. Proctor, elected in 2000, argues that hemeets all the constitutional provisions.
Proctor’s attorney, Chrishauna Clark, has asked for a quick hearing because the judicial election will be within the next two months.
The Arkansas attorney general’s office, which defends lawsuits that involve state constitutional questions, has declined to say what tack it will take in responding to Proctor’s lawsuit, ahead of the agency’s written response to the former judge’s lawsuit.
The Arkansas Constitution lays out 11 qualifications for circuit judge candidates, divided among Amendment 51, governing voter registration, Amendment 80, which sets up the hierarchy of the state courts, and Articles 3 and 5:
Must be a U.S. citizen.
Must be an Arkansas resident.
Must be at least 18 years old.
Must be registered to vote.
Must have been a practicing attorney for six years immediately before assuming office.
Must be a qualified elector from the geographical area from which elected.
Must reside in that geographical area at the time of election and during service, but that area can include any neighboring county when there are no qualified candidates available in the county to be served.
Must never have been convicted of embezzlement of public money, bribery, forgery or other “infamous crime.”
Must not file as a candidate for nonjudicial governmental office while holding judicial office.
Shall not be allowed any fees or perquisites of office, and shall not hold any other governmental office of trust or profit, except as authorized by law.
Shall not practice law during their terms of office.
1940 PRECEDENT
Proctor argues that the law used to bar him from the bench, Arkansas Code 16-10-410, is illegal since the law doesn’t derive its authority from the state constitution, but rather from the General Assembly.
In Mississippi County v. Green in 1940, the Arkansas Supreme Court bars the Legislature from imposing qualifications on constitutional officers, like judges.
And the high court has upheld that precedent, most recently in a 2005 decision that saw the justices strike down a law they found illegally imposed qualifications on circuit judges that exceeded the constitutional requirements to serve.
In that case, Jodi Raines Dennis, an appointed circuit judge from Pine Bluff, challenged Act 1448 of 2005, which barred appointed judges from running for election in the circuit they were appointed to serve. Dennis claimed the restrictions that barred her from seeking election were illegal because they weren’t derived from the constitution.
“Act 1448 ... did not properly amend the Constitution of the State of Arkansas,” court filings state. “This court should declare that the 85th General Assembly’s actions in attempting to amend the Constitution, without the methods required for such an amendment, are unconstitutional and Act 1448 is therefore void.”
Dennis won first in Pulaski County Circuit Judge Timothy Fox’s courtroom. Fox cited the 1940 Green case, and described the state constitution as a “restraining act” on the authority of the Legislature.
“In enacting Amendment 80 ... to the Arkansas Constitution, the people of the State of Arkansas reserved to themselves the authority to determine the qualifications and terms of justices and judges,” Fox wrote. “Because such authority has been reserved by the people, neither the legislative, executive nor judicial branch has the legal authority to impose additional qualifications on individuals desiring to serve as circuit judge.”
On appeal, the Arkansas Supreme Court also found the 70-year-old ruling applied, striking down the law as unconstitutional, with Chief Justice Jim Hannah writing that “regulation of qualifications in the Constitution acted as a restriction on any legislative power to impose additional qualifications.” “In Arkansas, our Constitution provides the qualifications for judicial candidates, and this court in Green ... held that where an office is created by the Constitution, and qualifications for that office are fixed by the Constitution, the General Assembly lacks the power to add to those qualifications,” Hannah’s ruling states.
The Legislature has not attempted another proscription on judicial qualifications since, state records show.
In the Dennis case, state attorneys argued that Act 1448 was a valid expression of the General Assembly’s authority over the creation and regulation of judicial districts and divisions, which they said included the authority to deny the advantages of incumbency to judges who weren’t elected.
CONSTABLE OPINION
But state attorneys have acknowledged the potency of the 1940 Green decision as recently as last year, Proctor noted in his lawsuit, citing a March 2009 advisory opinionfrom the attorney general’s office in response to a question about enacting regulations and standards for constables, a position established by Article 7 of the constitution. The attorney general cited court precedent that allows the Legislature to establish the duties and responsibilities of constitutional officers if those qualifications aren’t described in the constitution.
“The legislature may exercise its power where the constitution does not prohibit such an exercise,” the nonbinding opinion states.
But the opinion warns the Legislature against attempting to exert too much control over constables, pointing to the Green case.
“Generally speaking, the General Assembly has the authority to set requirements in the nature of training requirements for constables,” the opinion states. “I must advise caution in making the ability to hold the office of constable contingent on satisfying any training requirements because of the potential argument that such action would impermissibly add an additional qualification to a constitutional office.”
Proctor’s lawsuit doesn’t seek to challenge his January dismissal, and the constitution, through Amendment 66, explicitly describes the high court’s authority to suspend or remove judges from office, although the provision does leave the decision to the Legislature on what constitutes grounds for suspension or removal from office.
Front Section, Pages 1 on 03/20/2010