Circuit Judge H.G. Foster on Monday asked the Arkansas Supreme Court to decide whether administrative suspensions for nonpayment of annual license fees prevent judges from holding office.
Foster has had his license temporarily suspended four times since 2009 for nonpayment of annual bar dues, “due to oversights and misunderstandings,” according to the petition.
Foster named Attorney General Dustin McDaniel and Secretary of State Mark Martin as respondents. Mc-Daniel is tasked with pursuing writs such as Foster’s for the state and Martin with administering election laws, according to the petition.
The attorney general’s office responded to the petition Monday afternoon, stating that the court should find the suspensions do not bar a candidate from seeking a judicial seat.
A lawsuit filed last week against Foster, who was appointed to the 20th Judicial Circuit by Gov. Mike Beebe in January 2013, states that he should be disqualified from running for another judicial seat in that circuit in May because of the suspensions.
Another suit filed last week sought to disqualify Angela Byrd of Conway, another candidate for Faulkner County circuit judge with past suspensions. Byrd also responded Monday.
Jeff Rosenzweig, Foster’s attorney in the case, said there have been at least three other lawsuits on the issue this year and that he filed the petition to avoid the issue “kicking around in all these different courts.”
“What we were wanting to do is get it resolved as quickly as possible, sooner rather than later,” Rosenzweig said.
Rosenzweig said he hoped the court could decide the issue as quickly as next week so voters would know who is qualified to hold office before the May 20 judicial elections.
Benton attorney Lucien Gillham filed the lawsuit against Foster last week on behalf of Doralee Idleman Chandler, who is running against Foster for the judgeship vacated by Rhonda Wood, who was elected to the Court of Appeals. Judge Amy Brazil was appointed to fill the vacancy until the election and is barred from running for the seat.
Chandler’s lawsuit states that Foster does not meet the criteria for office under Amendment 80 of the Arkansas Constitution because his license had been suspended for nonpayment of dues.
Amendment 80 states that circuit judges must have been “licensed attorneys” for at least six years “immediately preceding the date of assuming office.” Appeals court judges and Supreme Court justices must be licensed for eight years, while district judges must be licensed for four before holding office.
Foster’s license has been suspended for a total of 216 days since 2009. The last suspension was for 11 weeks last year for not paying his $200 dues until May 17, according to the lawsuit.
Rule VII of the Arkansas Rules Governing Admission of the Bar states that “failure to pay the annual license fee … shall automatically suspend the delinquent lawyer from the practice of law in Arkansas.”
Gillham did not return a phone message left with his office.
Beebe spokesman Matt DeCample said that whether the suspensions are a disqualifying factor is a matter for the courts. DeCample said the governor’s office gathers information on an attorney’s current status from the Office of Professional Conduct before they are appointed and that the governor is sometimes informed of previous suspensions. The governor was aware of Foster’s suspensions when he was appointed, but the issue had been resolved and he was in “good standing,” DeCample said.
“If there is a short delay on a payment that leads to a temporary status change, that does not disqualify them from an appointment,” De-Cample said.
Rosenzweig said Foster is qualified - for his current office and the seat he is seeking - and that “inadvertently not paying law dues on time is not a suspension that affects the licensure in a way that an ethics suspension would.”
Rosenzweig said he filed a petition for a “writ of quo warranto” because it provided a direct avenue to the Supreme Court, bypassing the lower courts.
Under the state constitution, the Supreme Court has original jurisdiction to issue writs of quo warranto involving people holding judicial office.
According to Black’s Law Dictionary, “quo warranto” means “by what authority” and is used “to inquire into the authority by which a public office is held or a franchise is claimed.”
Assistant Attorney General Colin Jorgensen wrote in the state’s response that thecourt should hold that the administrative suspension for nonpayment “does not disqualify the attorney from eligibility to hold a judicial position pursuant to Section 16 of Amendment 80 to the Arkansas Constitution.”
Jorgensen wrote that Rule VII results in the attorney’s suspension from the “practice of law” and not a suspension of the attorney’s license. The court can resolve the issue by “formalizing the current practice” of nullifying the suspension with receipt of late payments.
“The court, and the court’s clerk, have consistently treated belated payment by attorneys as a retroactive cure, and the records for attorneys thereafter show no history of any suspension related to late dues payments,” Jorgensen wrote.
If the court finds that Rule VII results in suspension of the attorney’s license, a person who is found ineligible for office for nonpayment of dues “is likely to bring a meritorious due process challenge against Rule VII and the court,” Jorgensen wrote.
Cynthia Gray, the Chicago-based director of the American Judicature Society Center for Judicial Ethics, said the issue does not come up very often because “most judges, like most attorneys, pay their dues [on time].”
The center - part of the nonpartisan, independent American Judicature Society - compiles and provides information on judicial ethics and discipline.
Gray said there have been at least three cases before the Arkansas Judicial Discipline and Disability Commission in which judges have been admonished for nonpayment of dues.
In November 2004, the commission issued a letter of admonishment to Judge Edwin Alford, who was serving as a district judge in Howard County and had his law license suspended from March 1 to June 4 for nonpayment. The commission found Alford violated two canons of the Arkansas Code of Judicial Conduct.
The commission cited the same canons in letters of admonishment in January 1995 to Judge Scott Adams of Morrilton and Judge Max Harrison of Blytheville. Adams failed to pay his dues in 1992, 1993 and 1994, while Harrison failed to pay dues for 1990, 1991, 1992, 1993 and 1994.
David Sachar, the executive director of the commission, said he could not comment on whether there were any ongoing cases involving nonpayment of dues.
While Foster was asking the Supreme Court to intervene, Byrd was arguing that she should be allowed to seek office.
Suspensions for failing to pay licensing fees on time are illegal because the affected lawyers get insufficient warning their law licences are in jeopardy, Byrd argued Monday in court filings. Bar records show Byrd’s license was suspended for a day this year and for as long as two weeks in 2012.
Byrd responded Monday to the lawsuit seeking to disqualify her by suing the clerk of the Arkansas Supreme Court, claiming that the high court’s rules on admission to the bar violate constitutional guarantees of due process. The rules are flawed because they don’t require proper notice to lawyers or allow for a hearing before suspension is imposed, she argued.
The clerk, Les Steen, who’s retiring in July after 30 years at the post, administers the licensing process, according to Byrd’s six-page filing.
Represented by attorney Robert Newcomb, Byrd argues that an attorney’s law license can’t be taken away without giving the lawyer adequate warning of the potential suspension and allowing a hearing for the lawyer to contest the sanction.
Byrd wants the Supreme Court to declare Rule VII unconstitutional and force the plaintiff suing to get her off the ballot, Lonnie Williams, to pay her expenses for responding to the lawsuit.
Information for this article was contributed by John Lynch of the Arkansas Democrat-Gazette.
Front Section, Pages 1 on 04/08/2014