Blue Hog Report blogger Matt Campbell continues to stir the hornet’s nest on the topic of suspended law licenses. You’ll recall that Campbell noted that in Circuit Judge John Cole‘s recent ruling disqualifying lawyer Valerie Thompson Bailey from challenging Circuit Judge Tim Fox, Cole
wrote said from the bench: “A suspension is a suspension is suspension. It doesn’t matter if it’s administrative or disciplinary.” (Bailey’s license was suspended between 2002 and 2011 because she failed to complete required annual legal education courses, so Cole ruled that she failed to comply with the constitutional requirement that judges be “licensed attorneys of this state for at least six years immediately preceding the date of assuming office”).
If that’s the case, Campbell asked, what about Angela Byrd, who is running for circuit judge in Faulkner County, and who briefly failed to pay her yearly bar dues? Claudia Lauer at the D-G dug up three other candidates who currently have suspended law licenses for failure to pay bar dues: incumbents Circuit Judge Gerald Kent Crow and Circuit Judge Tom Smith, and attorney Jeanette Whatley, running for the First Judicial District Circuit Court seat. Blue Hog’s point: though the situations of Byrd and the others listed above probably amount to minor oversights, Cole’s decision arguably suggests that they are disqualified from running.
Now Blue Hog has done some more digging…and it turns out that Fox himself — the one that Bailey was planning to challenge prior to being disqualified by Cole’s ruling, had an administrative suspension lasting about six weeks in 2013. Oops! Here’s Blue Hog:
In the wake of Judge Cole’s disqualification of Valerie Thompson Bailey, I emailed the Clerk of the Arkansas Supreme Court to check on any past administrative suspension of other judicial candidates. One of the candidates that I asked about was Judge Timothy D. Fox.
A few moments ago, I received the following from the Clerk’s office:
Timothy Davis Fox suspended for non-payment of dues: 3/2/13 – 4/16/13
Oh, my. You mean to tell me that Judge Fox’s license was administratively suspended more recently than Valerie Thompson Bailey’s was? And, as we all now know, “a suspension is a suspension is a suspension,” right? So . . . this is kind of a big deal.Advertisement
Also a big deal? Another line from the same email from the Clerk’s office:
Rhonda Wood suspended for non-payment of dues: 3/2/08 – 3/13/08
Fox of course is running for re-election; Wood is running for the Arkansas Supreme Court, which requires being a licensed attorney for eight years before taking the seat, which would disqualify her if we’re applying Cole’s “a suspension is a suspension is a suspension” standard.
CORRECTION: This item originally stated that that Cole pronouncement — “a suspension is a suspension is a suspension” — was written in the decision. In fact, it was something he said from the bench. According to a local attorney who wrote to alert me of this error, “There is little or no legal/precedential significance even if it was in the opinion, which it wasn’t. Generally, statements of law by trial courts are not binding in future cases.” I’ve reached out to Campbell to get his take.
UPDATE: Campbell responds:
Is it a binding pronouncement of law? No. But it was the stated rationale behind his decision to disqualify Bailey. Also, the general rule is that a second lawsuit on this issue that winds up in Pulaski County (which they all will, since Mark Martin has to be named as a defendant) should defer to Judge Cole’s ruling. See Foster v. Hill, 372 Ark. 263, 275 S.W.3d 151 (2008) (stating, “This court has warned that permitting attempts by courts to exercise jurisdiction on an issue upon which another court has already acted would ‘paralyze justice'”). So, while Cole’s statement isn’t itself binding law, his decision is, at least in the Sixth Judicial District until an appellate court rules on the issue, and his statement is part and parcel of that decision.