Faulkner County Circuit Judge H.G. Foster has petitioned the Arkansas Supreme Court to decide his candidacy for re-election.
Foster, along with judicial candidate Angela Byrd who is running in another local race, is the subject of a lawsuit to remove his candidacy because of late payment of attorney’s dues.
On Monday, Foster filed in the Arkansas Supreme Court a writ of quo warranto. In effect, Foster’s legal action requests that the Supreme Court rule on the legitimacy of his judgeship, and to make a ruling applicable to every other judge and judicial candidate in the same situation.
Typically, a writ of quo warranto is used to call an official before the court in an attempt to remove them from office.
Foster’s action is "an unusual form of quo warranto" according to Little Rock attorney Jeff Rosenzweig, who prepared it, but Rosenzweig said on Tuesday that he thinks the Court will decide it is a correct use of the legal doctrine "depending on how narrowly or how broadly they interpret the law" effecting it.
"We thought that with the election coming up … it might be appropriate to give the Supreme Court the opportunity to rule on these [cases involving late attorney dues] more quickly; to get a decision and not have possibly inconsistent decisions in the lower courts and not have delay," he said.
"This writ was presented as an opportunity to get the option before the Supreme Court to decide it more quickly if they want to do it — they don’t have to, but they can’t just reach out. Someone has to present it to them, and that’s what we’ve done."
If the Supreme Court decides to consider the writ, it will consider Foster’s argument as to why he should remain on the ballot:
"Rule VII (C) of the Rules Governing Admission to the BAR provides, in part, that 'Failure to pay the annual license fee provided in subsection A of this Section shall automatically suspend the delinquent lawyer from the practice of law in Arkansas.' Such suspensions are not suspensions under the Procedures of The Arkansas Supreme Court Regulating Professional Conduct of Attorneys At Law. Under Section 22 of the Procedures 'former attorneys' include those lawyers 'on suspension pursuant to these Procedures.' Thus, suspension fornonpayment of license fees does not render that person a 'former attorney.'"
Arkansas Attorney General Dustin McDaniel responded to Foster’s petition for the writ on Monday, writing in his response that he agrees that the writ is properly considered by the Court and that he agrees with Foster that late fee payment does not bring about a suspension of an attorney’s license for the purposes of determining judicial candidacy.
Rosenzweig said that he expects the writ and arguments as to why Foster’s candidacy to stand to be challenged by the petitioners in his and other cases who seek to have them removed.