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Circuit court affirms Foster's candidacy

Posted: April 15, 2014 - 1:58pm

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.

 

 

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Free agent
206
Points
Free agent 04/15/14 - 09:04 pm
0
0
It shouldn't be that way

I don't think it's right to have a rule that states that a candidate for any elected position should have a specific degree, or have been previously licensed in a specific profession. The only thing that a law like this does is create a monopoly by the legal profession of judicial seats. We're suppose to be a government by, for, and of the people; not of the lawyers. If the people of Arkansas want to elect a person whose law license has expired to a judges seat, or even a person who has never practiced law, then so be it. As long as they're a US citizen of legal age, who meets the legal requirements to hold any other public office, then they should be allowed ballot access to a judicial seat regardless. Let the people of Arkansas decide who they want as their judge, not the legal professionals and lobbyists. Someone please tell me why I'm wrong.

Citizen of Conway
196
Points
Citizen of Conway 04/16/14 - 07:33 am
0
0
Come On Now Free Agent

Would you really want a case you were involved in settled by someone who had no knowledge of the law? Would you go to a doctor with no medical training? Would you go to a CPA who couldn't do math? Some positions require a minimum level of knowledge.

Arkansas has no minimum requirements for county coroner. In many counties the coroner is a wrecker driver or funeral home employee. Thank goodness Faulkner County placed its own requirements. A few years back there were signs all over Perry County before the election that said "Vote (name withheld) for CORNER" If you can't even spell it, you shouldn't be it.

Jollymusician
231
Points
Jollymusician 04/16/14 - 07:53 am
0
0
Can of worms

If the state supreme court rules against the candidates and states that their suspension disqualifies them from running, then every judge since the amendment went into effect needs to be examined for this issue. If certain judges are found to have missed their due payments before filing their candidacy, then all the cases they presided over will be looked at and potentially voided. This will cause criminals to be released and other civil judgments to be also voided. While the candidates who filed these lawsuits had somewhat good intentions when they filed, these lawsuits have the potential to be very devastating to the state.

357
1874
Points
357 04/16/14 - 12:09 pm
1
0
Now, now, Free Agent is

Now, now, Free Agent is allowed to express his opinion on this forum whether it's an informed one or not.

Bad boy
993
Points
Bad boy 04/16/14 - 03:47 pm
2
0
Like.

I would like to think they can keep up with the laws better than when they need to take care of personal cost. If they forget to pay fees and dues they might forget murder carries a life or death sentence and give someone probation. Do you need someone that can't take care of their personal life making rulings that could effect yours. Think about that. Did they sentence or pass a judgement while their license was suspended? We could already have trouble. H. G. is a great guy. I credit him with being part of a team that saved my life. As for Byrd. I'll leave that one alone.

GM
345
Points
GM 04/16/14 - 06:11 pm
0
0
If there is a silver lining to all this ...

... maybe it is that a few more people will pay better attention to judicial elections. It is in everyone's best interests for the most competent people to be elected to these positions. So often, people skip over picking a candidate in a judge's race because they haven't bothered to learn anything about either candidate.

Zweck
2676
Points
Zweck 04/16/14 - 06:36 pm
0
0
I want

I want a judge who knows law not a hotshot who was most popular guy or gal in the county. I had one issue where the honorable Judge Reynolds saw it the right way. If it had been a random person without a degree I shudder to think of what my ex would have gotten away with. You don't have to like lawyers but you want one if your on the right side of the law!

Raving Bear
632
Points
Raving Bear 04/16/14 - 09:00 pm
1
0
I want someone who believes

I want someone who believes in justice and equity. I've sat in H.G. Fosters court room and heard him muttering, "is it just" or, "is it equitable". That approach to the bench means a lot to me. That approach combined with common sense is all a judge really needs 99% of the time.

To bad Troy Braswell doesn't believe in either justice or equity. At least not when his political aspirations can be furthered by ignoring them.

libertas
173
Points
libertas 04/16/14 - 09:55 pm
1
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Raving Bear

Judge Foster let his license lapse two months at a time four out of the last six years. Judge Foster, like Mr. Braswell, was a former prosecutor that put offenders in prison for not following the law but he sat as a judge knowing his license was suspended. That puts the validity of those rulings into question. A lawyer's license has to be renewed the same time every year, it is not a surprise.

If you follow the money you'll find the same sources are funding both sides.

Raving Bear
632
Points
Raving Bear 04/17/14 - 07:00 am
1
0
As it sits now until the

As it sits now until the State Supreme Court weighs in, an administrative suspension is not the same as their law license being revoked. They remained lawyers. Its like not paying your personal property taxes on time and paying the late fee.

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