Ex-Faulkner County clerk ruled eligible for office

Judge: Hold off certifying Faulkner County winner’s vote

CONWAY -- A judge ruled Wednesday that former Faulkner County Clerk Margaret Darter is legally eligible to hold the public office to which she was re-elected Tuesday, despite a recent misdemeanor conviction.

Judge David Clark, ruling in Faulkner County Circuit Court, ordered that Darter's votes not be certified by election commissioners before Monday. That way, the four voters who challenged Darter's eligibility will have time to file an appeal to the Arkansas Supreme Court if they want.

At that point, their attorney -- Chris Burks, who also is counsel for the Arkansas Democratic Party -- said he could ask the high court for an injunction further delaying certification.

Burks said he had to confer with his clients before deciding whether to appeal but said an appeal "is more likely than not."

"We feel the Supreme Court would probably view it [the case] differently than Judge Clark did," Burks said.

Less than nine hours earlier, the Faulkner County Board of Election Commissioners released vote totals showing that Darter, a Republican, had defeated the Democratic challenger, Penny McClung.

With all precincts reporting, unofficial vote totals were:

Darter 25,437

McClung 20,166

Darter sat quietly on a front-row bench during Wednesday's hearing on the four voters' petition to have Darter declared ineligible for office. Those petitioners did not attend the hearing.

Afterward, Darter said she was "of course ... pleased with the ruling."

Darter was nearing the end of her first term as clerk when she pleaded guilty Oct. 11 to a Class C misdemeanor, obstruction of governmental operations. She previously was charged with felony tampering with a public record. As part of her plea agreement, she resigned that same day. The agreement did not preclude her from continuing her re-election campaign.

In a court filing Tuesday, Darter's attorneys, Frank Shaw and Lauren Elenbaas, argued that "a strict, objective review of the relevant misdemeanor statute [to which Darter pleaded] reveals no elements of dishonesty or deceit causing it to be rendered a disqualifying offense."

Shaw and Elenbaas also cited a 2013 Arkansas Supreme Court opinion where the court held that in deciding whether a misdemeanor conviction is an "infamous crime," what matters is "an objective review of the categorical nature of the crime for clear elements of dishonesty or deceit."

What doesn't matter, attorneys said, are "the underlying factual considerations surrounding a conviction or whether the factual circumstances impugn the integrity of the office sought or held."

Shaw and Elenbaas argued that the obstruction charge's statutory language did not contain clear elements of dishonesty or deceit. What matters is the charge to which she pleaded, not the details that led to it, they said.

Clark agreed, saying, "We do not look at her [Darter's] actions," but at the specific charge to which she pleaded. Clark said he didn't think anyone in the courtroom could dispute that Darter's actions were dishonest or deceitful.

"Her actions and how she did [them] are indeed" dishonest, Clark said. "But the crime itself is not," based on the statutory language on which Clark said he had to base his ruling.

Clark said he found his own ruling "to be very mind-boggling" but said his decision reflects the Supreme Court's past holdings.

Burks said he respectfully thinks "the judge misunderstood the law."

State Desk on 11/10/2016

Upcoming Events