Incumbent Tim Fox is a valid candidate for Pulaski County circuit judge, a specially appointed judge ruled on Monday, rejecting the contention that Fox’s failure to pay his annual licensing fee on time resulted in a suspension that should disqualify him from re-election. Fox is unopposed in next month’s judicial races.
And while Circuit Judge Sam Bird ruled that Fox’s law license had been suspended for the 45 days last year and that the $200 fee was past due, the Little Rock jurist also rejected Fox’s argument that the suspension procedure used by Supreme Court clerk Les Steen was unconstitutional,so it shouldn’t have been applied to him.
Bird reached his decision after about 90 minutes of deliberation after a 5½ hour hearing that included testimony from Fox and Steen, as well as state and local election officials who warned that any effort to restructure the May 20 ballot three weeks before early voting begins could devastate the local election process.
On the witness stand on Monday, Fox, first elected in 2002, blamed an administrative error for his dues being late. Pulaski County pays the license fee for all of the 17 judges, he said. Fox told Bird that when he learned that the dues had not been paid on time he made sure sufficient payment was made within 30 minutes.
Bird said there’s no way the Arkansas Supreme Court, the author of the court system’s rules, ever intended a license suspension for late payment to have the same impact as a suspension for misconduct. If that’s what the justices wanted, they “could have clearly and unambiguously said so,” Bird told the sides.
“The Supreme Court does not want the licenses of attorneys, it wants your money,” the retired Court of Appeals judge said. “Rule 7C [the late fee rule] is not the poster child for clarity. It’s fuzzy to the point of being vague.”
The rule, part of the bar admission rules, does give late-paying lawyers an opportunity to end their suspension by paying a $100 delinquency fee, which Fox did, Bird said. The only time that rule allows for a license suspension that could disqualify a judicial candidate is when the lawyer is at least three years in licensing-fee arrears, Bird said.
As evidence of the high court’s intention to distinguish between the administrative and punitive suspensions, Bird pointed to rules that require the clerk to keep a list of suspended and disbarred lawyers. But the rule doesn’t require the clerk to put late-paying lawyers on that list as long as they are fully paid within three years, he said.
The practice of the Supreme Court clerk in interpreting the rules to distinguish between suspensions - allowing reinstatement for the $100 penalty - is legal, in part because it’s been the practice for more than 30 years, predating Steen’s 27-year tenure as clerk, Bird said.
It’s been the accepted practice for so long now that for Bird to change the way the rule is applied would be unconstitutional because Arkansas’ lawyers have come to rely on the clerk’s interpretation, the judge said. He estimated, based on the clerk’s testimony, that 10 percent of all of the lawyers in the state regularly pay late ever year.
“The bar and the bench have come to rely on that distinction,” Bird said. “This is evidenced by the fact that 700 to 900 lawyers every year … just don’t get excited by [alate-payment suspension]”
Fox’s candidacy had been challenged by 54-year-old John Kevin Kelly of North Little Rock, who argued that Fox’s suspension amounted to a lapse in licensing that caused him to run afoul of a constitutional requirement that all judicial candidates be licensed continuously for at least six years before taking office.
Fox, licensed since 1981, is the third of four judicial candidates whose credentials to hold office have been challenged in court. His opponent, Department of Education attorney Valerie Thompson Bailey, was disqualified last month and removed from the ballot by another judge, John Cole of Sheridan, who ruled her administrative suspension meant that she did not meet the licensing requirement. Cole ruled that there are no differences between administrative and punitive suspensions.
Bird’s ruling, which will be codified in the coming days in preparation for an appeal, has the same effect as a decision last week by Circuit Judge Wendell Griffen in the case of Angela Byrd, a judicial candidate from Conway who was 36 hours late with her dues this year.
Griffen pronounced Byrd’s candidacy valid but reached his conclusion through a different legal analysis, ruling that an attorney could not be suspended from practicing law for late payment without being given notice that the sanction was coming and an opportunity to challenge the penalty.
Griffen said late-paying attorneys were owed the due process of the Constitution because the government’s need to collect its bills was not sufficient reason to deprive a lawyer of his means of earning a living without providing an opportunity to contest the sanction.
The judge also drew a distinction between a license suspension and the suspension of an attorney’s ability to practice law. A late-payment suspension does not impact a lawyer’s licensing, just his ability to practice, he ruled.
Griffen is scheduled for a second hearing on the issue at 9:30 a.m. today when he hears a challenge to the judicial candidacy of H.G. Foster of Conway, an interim circuit judge, who has paid his dues late four out of the past six years.
Foster has also petitioned the high court to intervene directly, rather than waiting to decide the question on appeal. None of the rulings issued by the circuit judges carry any weight beyond their respective courts.
Front Section, Pages 1 on 04/15/2014