Describing a previous judge's contrary holding that "a suspension is a suspension is a suspension" as showing "the difference between a truism and the truth," Pulaski County Circuit Judge Wendell Griffin has affirmed local Circuit Judge H.G. Foster's candidacy for re-election.
Foster's candidacy was challenged because he paid his attorney's dues in 2013 past the March 1 due date. In March, a similar challenge to the candidacy of a Pulaski County judicial candidate, Valerie Bailey, succeeded at the circuit court level there. In light of that ruling, the candidacy of Foster and local judicial candidate Angela Byrd and sitting Pulaski County Circuit Judge Tim Fox were challenged in separate lawsuits.
As of Tuesday, Foster, Byrd and Fox will all remain on the ballot, though it's likely that appeals to the state Supreme Court will settle the matter on way or the other before the election.
Jeff Rosenzweig, one of Foster's attorneys, elicited testimony from state Supreme Clerk Leslie Steen that paying attorney's dues late is a different kind of suspension of a law license than a disciplinary suspension, and that once the dues are paid late, along with a $100 late fee, the suspension is lifted as though it never happened.
The language at the core of the challenges is Amendment 80 to the Arkansas Constitution, which says, in relevant part, that a candidate for circuit court judgeship must have been a licensed attorney for six consecutive years prior to taking office, which in this case would be Jan. 1, 2015. Basically, the parties moving to have candidates removed from contention for late payment have argued that the language of Amendment 80 and other rules governing admission to the Arkansas Bar Association and state Supreme Court rules of professional conduct state plainly that an attorney's license is "automatically suspended" after the March deadline when dues are not paid, effectively "breaking the chain" of uninterupted status as a licensed attorney.
Griffen said he'd heard "much talk about a suspension ... [but] one has to have a license to be suspended. ... A suspended license is a license — it is not a non-license — and I know that is a double negative, but it is very easy to say 'a suspension is a suspension is a suspension;' [and] that shows the distinction between a truism and the truth. ... These are very, very different kinds of things from 'unlicensed.'"
Speaking not strictly to plain language of the applicable rules and statutes given Steen's testimony that between 700 and 900 Arkansas attorneys pay their dues late per year, Griffen added that, "It strains credulity that the [state] Supreme Court would have blindly allowed people who are Constututionally disqualified as judges [to serve] and [then] decided at this late date, 'Oops, we have ... unlicensed lawyers running around as judges.'"
Griffen also decided that the law providing for "automatic suspension" of an attorney's license for late payment of dues was an unconstutional deprivation of due process — a legal doctrine that basically guarantees a person being deprived of a life, liberty or property interest from having that interest stripped from them without fair notice and a right to make a case for themselves at a hearing.
In the hearing, Lucien Gillham, attorney for Foster's challenger Doralee Chandler, argued that there was no "taking" of a Consitutionally protected interest when an attorney well knows that paying dues late results in a suspension, and pointed to a New Jersey state court case in which it was held that a real estate license lapsed for non-payment of dues was a voluntary surrendering of that license.
"Unfortunately there is no" state law on this point, Gillham said in the hearing.
After deciding that the Constitutional due process claim was valid, Griffen said that he knew "my higher-ups" would be looking at the case, presumably alluding to appeallate courts.
Chandler said after the hearing that she and Gillham would confer and decide whether they would file an appeal. Chandler said that she "very respectfully disagreed with Judge Griffen" as to the legal and constitutional decisions entered on Tuesday.