Angela Byrd’s win in Pulaski County Circuit Court this week settles her place on the May ballot, and sitting Faulkner County Circuit Judge H.G. Foster says that it’s “encouraging,” but the issue is not closed yet.
Byrd and Foster have been subject to lawsuits challenging their candidacy for Faulkner County Circuit Judge (in different elections) on the basis that paying attorney dues late results in a suspension of their license that “breaks the chain” as far as the requirement that circuit court judicial candidates for election or re-election have been licensed attorneys for six continuous years.
On Tuesday, Foster will be at a hearing in Little Rock before Pulaski County Circuit Judge Wendell Griffen, who earlier agreed with Byrd that “suspension of an attorney’s privilege to engage in the practice of law pursuant to her license involves state action that affects important interests of the [license holder] in pursuing a livelihood, and cannot be validly [suspended] without procedural due process.”
In Griffen’s decision, “due process” was the key. Generally speaking, a state can’t deprive a person of “life, liberty, or property, without due process of law.” Due process of law requires that the person being deprived gets notice of what’s being taken and an opportunity to make a case for themselves against the taking.
With the administrative suspension of an attorney’s license for late dues (one day late in Byrd’s case), there is no notice nor is there any hearing. So, Griffen wrote in a memorandum filed on Friday, the suspension of Byrd’s license “without advance notice and … [an] opportunity to be heard before the suspension took effect, denied her due process of law in violation of the Fourteenth Amendment to the U.S. Constitution.”
This part of Griffen’s ruling decided Byrd’s third-party complaint against Supreme Court Clerk Leslie Steen, which argued that the Rules of the Arkansas Supreme Court Governing Admission to the Bar rule creating administrative suspension for late dues was unconstitutional and unenforceable.
Steen testified that administrative suspension for late payment is not a disciplinary action affecting the validity of a law license, and that between 700 and 900 lawyers pay their dues late every year. When they pay their dues late, along with a $100 late fee, their license is reinstated as though the suspension never happened.
In March specially appointed Pulaski County Circuit Judge John Cole ruled that Valerie Bailey, who was running against sitting judge Tim Fox, was ineligible for the same reason, holding that “a suspension is a suspension is a suspension.”
Now Bailey’s attorneys, Nikki Nicolo and Sam Perroni, have moved to have Bailey’s case re-heard before Judge Cole in hopes that he would set aside his March order and put Bailey back on the ballot.
"I think Judge Griffen's decision shows that an issue of law exists as to whether or not an administrative suspension equates to a loss of the attorney's license,” Bailey wrote in an email to the Log Cabin. “Where an issue of law exists and where other remedies are available, a Writ of Mandamus is simply incorrect. “In addition to the six-year licensing requirement, Amendment 80 also requires that these circuit judge positions go to a vote of the People. I am still hopeful that the voters in Pulaski and Perry Counties will choose a judge for themselves instead of having that decision made for them. I am also hopeful that, going forward, I will be treated with the same dignity and fairness which is extended to any other member of the Arkansas Bar."
Perroni also prepared a lawsuit challenging the candidacy of Judge Fox, putting him on both sides of the issue. He disagrees with the decision to remove Bailey from the ballot, but told the Log Cabin and other news sources that ”So, For whatever a man sows, that he shall also reap.”
“First of all, let me say that I am very happy for Mrs. Byrd,” Perroni said on Friday. “I think the voters up there in her area should have a right to decide who ought to be in that circuit judge position. But I think the decision is most unfortunate because it created inconsistent decisions in the same courthouse over the same issue, and that fosters distrust in the judiciary, and that reflects on the entire system, which I think is most unfortunate.
“As a result, it sends a message to the public that the rule was OK until the winds of justice began to blow back on sitting judges. Now we see that perhaps there ought to be a different rule.
“The way I feel about it is the public ought to be reassured that there’s going to be equal application of the law, particularly when it involves a race for the exact same position; either both of them ought to be on the ballot or both of them ought to be off the ballot, period.”