Circuit Judge Sam Bird yesterday ruled that Circuit Judge Tim Fox is an eligible candidate for re-election. A lawsuit was filed earlier this month alleging that Fox should be disqualified because of a suspension in his law license in 2013 for failure to pay bar dues. The Arkansas Constitution requires judicial candidates to have been licensed attorneys in the state for six consecutive years prior to taking the seat (eight for Supreme Court judges). Bird ruled that an administrative suspension for late payment, unlike a punitive suspension for misconduct, would not disqualify a candidate.
This was one of the copy-cat lawsuits following the disqualification last month of Valerie Thompson Bailey, who planned to challenge Fox for a 6th Judicial Circuit Seat. Bailey’s license had been suspended for failing to complete a required annual legal education course. That Bailey’s suspension was of an administrative nature, rather than for misconduct, didn’t matter, presiding Judge John Cole said. “A suspension is a suspension is a suspension,” he said from the bench.
Bird’s ruling, in other words, sharply differed from Cole’s. Though the situations of Fox (suspended for late payment for around 45 days) and Bailey (who voluntarily let her license lapse for almost nine years while she dealt with a family matter) were different, the political optics here are a bit awkward, with two potential candidates receiving two different rulings on administrative suspensions.
Bird’s ruling comes on the heels of Circuit Judge Wendell Griffen‘s ruling last week on a similar lawsuit against attorney Angela Byrd. Griffen found that the suspension itself was invalid because it violated Byrd’s due process rights. Bird rejected this argument yesterday. Thus, while both Griffen and Bird found the candidates before them eligible, they arrived at their conclusions via different legal interpretations.
Griffen is hearing a similar challenge against Judge H.G. Foster this morning, who has had four suspensions for failure to pay bar fees in the last six years. Presumably Griffen will invalidate the suspensions against Foster and uphold his candidacy for a different 20th Circuit seat based on the same grounds as the Byrd case.
Both Foster and Attorney General Dustin McDaniel have asked the state Supreme Court to settle this kerfuffle once and for all (there are plenty more potential lawsuits floating out there). Complicating matters, two Supreme Court judges have had suspensions themselves* (or not, if the rulings of Griffen and/or Bird stand!) for failure to pay bar dues within the time frame that would have disqualified their candidacies for the Supreme Court under the theory pushed by plaintiffs challenging Byrd, Foster and Fox.
*A previous version of this post reported that three Supreme Court judges have had administrative suspensions themselves that might affect their eligibility to hold office. The original post on the eligibility question of Supreme Court justices has been updated to remove Chief Justice Jim Hannah from among the justices who might be ineligible to assume office depending on how Amendment 80 of the Arkansas Constitution is interpreted. Voters approved Amendment 80 in 2000, but it didn’t go into effect until July 2001. Hannah took office in January 2001, so Amendment 80’s requirements wouldn’t affect his eligibility regardless of how it’s interpreted.