The Faulkner County Election Commission will be defending the ballot as certified by the Secretary of State.
The commission met on Friday and heard an explanation by County Attorney David Hogue of their options in responding to lawsuits filed against the commission and Secretary of State Mark Martin to remove local judicial candidates Angela Byrd and H.G. Foster from the running in the May election.
Hogue told the commission that by answering in a way that will allow him to argue for keeping Byrd’s and Foster’s candidacy, they were "not in any way" endorsing a certain candidate, but rather sticking with the commission’s position in accepting the certified ballot a few weeks ago.
In effect, the commission has little to no discretion in setting the ballot. It is tasked merely with putting the Secretary of State-certified ballot and running a correct and fair election.
The lawsuits Hogue will be arguing against claim that Byrd and Foster were "former attorneys" briefly during the past six years because both were late in paying their Arkansas Bar Association attorney’s dues.
Arkansas Constitutional Amendment 80, enacted in 2001, requires circuit judges to have "been licensed attorneys of this state for at least six years immediately preceding the date of assuming options."
Hogue said that the commission could be neutral, for the petitioners (who seek the candidates’ de-certification from the ballot), or for the respondents in the lawsuit. Professionally, Hogue said that he could argue either side of the issue on behalf of the county, "and nothing about either would be frivolous," but in his opinion, the commission would be best served by maintaining the county’s ballot as they have already acted to set it.
The argument focuses on the language used to define "former attorney" and the scope of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, a relevant part of which states that:
"Failure to pay the annual license fee … shall automatically suspend the delinquent lawyer from the practice of law."
Hogue said that he can "very respectfully disagree" with a 2012 opinion by state Supreme Court Clerk Leslie Steen that "Failure to pay said fee by March 1 automatically suspends the license of the attorney to practice law in the state of Arkansas." This opinion by Steen figured into the Pulaski County Circuit Court decision this year to remove judicial candidate Valerie Bailey from the May ballot.
Rather than suspending the license, Hogue said, it can be argued that paying dues late merely suspends the privilege to practice law.
Further, the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law only apply "to complaints filed and formal complaints instituted against attorneys." In the cases of Byrd and Foster, there have not been any complaints within the purview of the Arkansas Supreme Court Committee on Professional Conduct.
Arkansas Court Rules also provide that paying dues late results in suspension of the privilege to practice law.
In practice, late payment of dues doesn’t have a lasting effect on attorneys, according to multiple sources interviewed for coverage of this issue. Once the late dues are paid, whatever suspensions may have been automatically imposed are lifted as though they never happened.
Hogue said that a hearing should be set for next week, or not long after, and that after a decision or decisions are reached at the Pulaski County Circuit Court the state Supreme Court should affirm or reverse the lower court ruling fairly quickly. The Supreme Court will hear the case without going through intermediate appellate courts under its power to take up questions of constitutional interpretation and construction.
(Staff writer Joe Lamb, can be reached by email at email@example.com or by phone at 505-1277. To comment on this and other stories in the Log Cabin, log on to www.thecabin.net. Send us your news at www.thecabin.net/submit)