The Arkansas Supreme Court today denied the petition from Circuit Judge H.G. Foster asking the Court to rule on whether Foster was qualified to run as a judge*. Foster asked the Court to weigh in after a lawsuit by Foster’s opponent for a 20th Circuit seat, Doralee Chandler, which argued that Foster should be disqualified from the race because Foster has had his license suspended in the past (the Arkansas Constitution requires judicial candidates to have been a licensed attorney in the state for six consecutive years prior to the day they would take office, or eight years for Supreme Court candidates). Foster asked the Court to weigh in on just what counts as a suspension (Foster’s suspensions were not for disciplinary reasons but for late payment of bar fees). The question doesn’t just impact Foster — Circuit Judge Tim Fox and attorney Angela Byrd have also been slapped with similar lawsuits.
In all three cases, Foster, Fox and Byrd were found to be qualified candidates. In the case of Foster and Byrd, Circuit Judge Wendell Griffen found that the suspensions themselves were invalid because they violated the attorneys’ due process rights, and therefore there was no interruption in their licenses. In the case of Fox, Circuit Judge Sam Bird rejected Griffen’s due process argument and found the suspension itself legitimate, but ruled that an administrative suspension for late payment, unlike a punitive suspension for misconduct, would not disqualify a candidate.
Got all that? All of them could potentially face appeal, so the Supreme Court may end up dealing with this issue eventually. ***UPDATE: I see, belatedly, that John Lyons of the Arkansas News Bureau has reported that North Little Rock voter John Kelly, who unsuccessfully challenged Fox’s eligibility in Circuit Court, has filed a notice of appeal to the Supreme Court.***
Foster suggested that the Court needed to settle the matter once and for all (Attorney General Dustin McDaniel agreed).From Foster’s petition:
Because of the important public interests involved, the possibility of inconsistent findings among the various circuit courts, because of the short time before the election, because it is appropriate that the electorate know at the time of voting whether a candidate is legally qualified to serve, and because Foster’s status to currently serve must be resolved expeditiously, this Court should accept and decide this case on the merits and decide whether or not a suspension for failure to timely pay a license fee disqualifies a person from serving as a judge.
The Court declined, without much by way of explanation. Justices Paul Danielson, Karen Baker, and Courtney Hudson Goodson recused themselves.
The suits against Foster, Fox and Byrd came in the wake of a ruling by specially appointed Judge John Cole that Valerie Bailey, a candidate for the 6th Judicial District seat currently occupied by Fox, was ineligible for office because her license had been suspended for nearly nine years. That Bailey’s suspension was of an administrative nature, rather than for misconduct, didn’t matter, Cole said. “A suspension is a suspension is a suspension,” he said from the bench.
In other words, while there are differences between the situations of Bailey and Fox, the rulings from Cole and Bird in the two cases are at least arguably in conflict. This gets to Foster’s point in the petition: “the possibility of inconsistent findings.” In this case, the findings were inconsistent for two candidates competing against each other. Legal issues aside, the political optics here are very awkward.
Speaking of awkward political optics, the Supreme Court may eventually hear appeals on these various cases, and every single one of the justices has had a license suspension (well, depending on what counts as a suspension!) for late payment of fees in the past, including two, Baker and Goodson, within eight years of joining the Court — which would have disqualified them from running under the theory pushed by the plaintiffs in these lawsuits.
*CORRECTION: An earlier version of this post stated that Foster asked the Court to intervene in the Chandler case. In fact, Foster asked the Court to rule on whether he’s qualified to run for judge or not, which would have in effect nipped the Chandler lawsuit — and potentially the other cases — in the bud.