The attorney for Valerie Thompson Bailey, a Little Rock attorney disqualified in March from running for the bench in the 6th Judicial Circuit, filed a motion Friday for a rehearing at the Arkansas Supreme Court.
The court had issued a decision in the case Wednesday but refused to rule on whether Bailey's disqualification was valid, writing in its majority opinion that the issue was moot because of her timing.
"She offers not one suggestion for what relief this court can grant that would have any practical effect in light of the fact that the ballots have been printed," Justice Donald Corbin wrote.
According to court records, Bailey filed a motion for a rehearing in circuit court in April -- more than a week after a lower-court judge said she was ineligible -- instead of filing an appeal to the Supreme Court. The delay caused her name to be removed from the ballot, which was approved March 21.
In his motion for a rehearing, attorney Sam Perroni wrote that Bailey was never given a chance to explain her reason for filing the appeal in the standard manner through the lower court, adding that her appeal to the Supreme Court was made when the lower courts found in favor of other judicial candidates who had similar administrative suspensions. Perroni wrote that the court improperly interpreted the legal qualifications for "mootness."
"With all due respect, Petitioner had no legal duty to spell out to the Court how it should implement a fair and just remedy to clear an unmistakable wrong," he wrote in the motion filed Friday afternoon. "As representatives of the tax payers (including Petitioner), they had a duty to advise the Court as to its lawful options -- not hide behind mootness as an excuse for saving time and inconvenience."
Supreme Court Communications Counsel Stephanie Harris said the motion would be considered and a decision would be made in the next few weeks on whether to rehear the case.
If the state's high court decided to rehear Bailey's appeal, it likely would be after the election Tuesday and possibly after the 10-day certification window for those election results.
"It is quite rare for the court to grant rehearings," said Ken Gallant, a professor at the University of Arkansas at Little Rock's Bowen School of Law. "The court in its opinion is effectively saying in election matters you must pursue your expedited appeal options virtually immediately."
The court released three other opinions Wednesday in cases of candidate eligibility, ruling that attorney Angela Byrd and sitting judges H.G. Foster and Tim Fox -- whom Bailey would have faced -- were all eligible to be on the ballot despite short suspensions of their law licenses for failing to pay bar dues on time. The court ruled that the suspensions were not the same as losing the ability to practice law, which would come with disbarment.
Amendment 80 of the Arkansas Constitution requires circuit judges to be licensed attorneys in Arkansas for six years before taking office.
In his petition, Perroni cited the opinion by Special Justice Woody Bassett, who was appointed along with two other special justices to hear the cases after three justices recused from participating. Bassett's concurring opinion in the Bailey case agreed with the majority on the mootness because of timing, but stands apart in saying that because of the other three opinions issued Wednesday regarding candidate eligibility, Bailey's name likely belonged on the ballot.
"Since our decision in this case, albeit correct, seems inconsistent with the results in the companion cases handed down today, some clarification is in order," Bassett wrote. "Valerie Bailey meets the requirements of ... Amendment 80 to the Arkansas Constitution and is eligible to be on the ballot as a candidate to stand for election."
Perroni argued in his petition that the court had set a bad precedent by knowing Bailey should have been on the ballot, and not finding a remedy.
"Special Justice Bassett, in his concurrence, speaks of the fear of creating a bad (undefined) precedent as his justification for this Court failing to right a terrible injustice. However, this Court has now created a very real and bad precedent for judicial elections," he wrote.
Laura Labay, a spokesman for the secretary of state's office, said the secretary of state -- named as a defendant in the appeal -- would abide by the court's ruling if it decides to reconsider the case.
Metro on 05/17/2014