CONWAY -- A Faulkner County circuit judge on Monday ordered election officials to tally votes cast for former County Clerk Margaret Darter in her attempt to regain the seat she resigned, but did not determine whether she should be disqualified.
Judge David Clark ordered that officials not certify the election's results until he makes that ruling. He scheduled a hearing for 8:30 a.m. Nov. 9, the day after the election.
Clark's decision to leave the eligibility question unanswered until at least then -- which he said is the best way to avoid a "chilling impact" on the election -- followed technical arguments drawn from previous state Supreme Court rulings concerning whether people convicted of a so-called infamous crime are eligible to run for office.
Darter, a Republican, resigned her seat as county clerk Oct. 12 after she pleaded guilty to misdemeanor obstruction of governmental operations. Darter, however, decided to stay on the ballot, prompting a lawsuit filed by four Faulkner County residents.
Darter faces Penny McClung, a Democrat, on Nov. 8. Early voting began Oct. 24. Through Monday, more than 19,200 ballots had been cast in Faulkner County, according to the county's election commission.
After Clark's ruling, debate spilled into a hallway as attorneys further argued their case before a reporter and traded barbs over issues both central to and removed from the lawsuit.
The extracurricular discussion began after one attorney complained that a Republican state representative, who is also an attorney unaffiliated with the suit, discussed the case with the judge without all of the involved attorneys present.
The Faulkner County battle boils down to whether the petitioners can prove that Darter, by way of her plea, inherently admitted to being "deceitful or dishonest." That, according to previous Arkansas Supreme Court rulings, is one of the standards that make up an "infamous crime," a variety that bars offenders from holding public office.
Darter was initially charged with felony tampering with a public record on accusations that she backdated other elected officials' financial statements that were turned in after the deadline. Her plea was part of a negotiated settlement that included her resigning from office.
During brief testimony Monday, Darter answered mostly yes-or-no questions. Darter said her guilty plea was an admission that she "knowingly" violated the law and that she wasn't acting "truthfully" when she committed the crime.
However, the underlying facts of the criminal case cannot be considered in such a hearing, Clark said, so he did not admit the testimony as evidence and won't consider it in his ruling.
In one of the issues at next week's hearing, Clark wants attorneys to argue the definitions of the verbs "obstruct," "impair" and "hinder" to determine whether those terms naturally include the elements of dishonesty or deceit. Those are the verbs used in the criminal statute Darter pleaded guilty to offending.
Arkansas Constitution Article 5, Section 9 bans people convicted of infamous crimes from holding public office. What that term means specifically, however, is not spelled out and has been frequently disputed.
The Arkansas Supreme Court has set precedent while ruling on infamous crime cases involving elected officials in 2005, 2010 and 2013. The General Assembly codified its interpretation of the term in Act 714 of 2013.
And voters now are deciding on Issue 1, which asks whether to define infamous crime as part of four election-related constitutional amendments.
At times during Monday's hearing, the attorneys interrupted and sniped at one another. After one exchange between attorneys Christopher Burks, who represents the petitioners, and Frank Shaw, who represents Darter, Clark advised them to not engage with each other.
"This isn't junior high," Clark said. "These are legal proceedings."
Clark, when issuing his decision, indicated that he expects the losing party to appeal and said he wanted to avoid his decision influencing voter turnout or behavior.
"It will ensure this court will not have a chilling impact on the election," Clark said.
Before the hearing began, Clark told the court that he would be "more verbose" than usual because the case "affects public confidence in the electoral process."
Clark, who accepted the case after three other judges recused, said he knows each party involved in the suit but does not socialize with them or consider them friends.
"I'm more than willing to hear the case," Clark said, and asked whether any of the parties wanted to request a special judge. No one did.
The post-hearing debate began when Burks, who is also general counsel for the state Democratic Party, complained that state Rep. Douglas House, a Republican, discussed the case with Clark when Burks was not present.
That discussion happened in a public conference room shortly after Clark convened all attorneys involved to clarify part of his ruling, said David Hogue, Faulkner County's civil attorney, who is representing the county's election commission in the suit. Hogue said he was within earshot of the discussion.
House, whose 40th District contains parts of Faulkner and Pulaski counties, said afterward that he attended the hearing on behalf of his client, the Faulkner County Republican Committee, and informed Clark that he would have filed a motion to intervene had the judge disqualified Darter.
"I was here to intervene if I heard a remedy did not include an election," House said he told Clark. House said he might have filed a so-called friend-of-the-court brief, for instance.
House then left the courthouse.
Standing in the courthouse's second-floor lobby, Burks said the meeting was "totally outrageous" and "unethical."
Burks said he was not in the conference room at the time because he walked out after Clark made the clarification, which was to say which attorney must file the next brief in the ongoing matter.
"[House] didn't identify himself in any way in court," said Burks, who called attention to the meeting. "It was very concerning to me when I went back over there to see him talking to the judge, one-on-one, just the two of them in that room."
Burks said he wanted to make it clear that he didn't fault Clark.
"I do not think Judge David Clark has done anything wrong at all," Burks said.
Burks demurred when asked whether he would file a formal complaint against House with the Arkansas Judiciary's Office of the Committee of Professional Conduct.
Hogue said Clark listened to House while "trying to get out of the room."
"It wasn't in the form of advocacy," Hogue said of House's comments.
Metro on 11/01/2016