ETHICS SCHMETHICS: A court candidate advertises Asa Hutchinson’s praise of her. Is this an endorsement?

Little Rock lawyer Jessica Virden Mallett has complained to ethics regulators about the overt partisanship in Barbara Webb’s campaign for Arkansas Supreme Court and isn’t happy with the slowness by which such ethics complaints are handled.

Webb, wife of Republican Party chair Doyle Webb, is using testimonials from Republicans Asa Hutchinson and Mike Huckabee in her campaign advertising. She’s provided video of herself for ads by a Republican PAC. She’s accepted thousands of dollars in direct campaign contributions from Republican committees and Hutchinson and Huckabee PACs. The Republican Party is trying to increase Republican primary voting, most likely for her benefit. The relevant ethics consideration is that Supreme Court candidates are supposed, by the Canon of Ethics, to run as non-partisans. The code specifically prohibits partisanship by candidates and judges

Judge Morgan “Chip” Welch, Webb’s opponent has no similar partisan ties in his seven years on the bench or in his current campaign.

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Mallett, a Democratic candidate for legislature two years ago whose father, Appeals Court Judge Bart Virden, endured partisan attacks during his race for that seat, complained weeks ago about Webb’s partisan campaigning. She was told it would be several weeks before investigators from the Judicial Discipline and Disability Commission would be contacting her.

She’s impatient since the election will be over Tuesday. This situation mirrors that which faces those who file ethics complaints with the state Ethics Commission in other political races. The process grinds slowly — by necessity, I think it fair to say. Investigations take time. Due process is required. But the net effect is that bad deeds can be done with electoral impunity in the weeks before an election, without even a finding during the election season to persuade voters they might want to consider a more ethical candidate. Afterward? Big deal. A candidate might get a letter of caution. At the Ethics Commission, tiny fines are possible, but a legislatively passed ethics mulligan law allows candidates to “correct” mistakes called to their attention without penalty. (Case in point: This ethics complaint in an East Arkansas judicial race. And here’s yet another complaint referencing failure to report tax liens by a judicial candidate.)

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The dark money also flows in during the final 30 days of a campaign, with no trace of where it’s coming from or how much is being spent until after the election is over.

When Mallett asked that her complaint be expedited, she got this response from the Judicial Discipline agency:

“Thank you for your email. Your complaint was received and has been assigned to a JDDC Investigation Panel. Those panels are made up of one judge, one lawyer and one citizen member. They are appointed for six year terms and serve as volunteers. They meet once a month with the Deputy Director to make decisions on the cases. Judges and judicial candidates are afforded due process under the Rules that were promulgated by the Arkansas Supreme Court. In short, the JDDC is investigating this complaint as quickly as possible. However, the Rules do not provide for the type of quick response that would give an official determination in a matter of weeks.”

That’s a reasonable response. But it also illustrates the near impossibility of doing anything meaningful about ethics scofflaws like Barbara Webb.

(I understand that it plays into Webb family hands to continue to highlight her as a Republican and friend of the corporate lobbyists from the Arkansas State Chamber of Commerce and elsewhere who are trying to make it difficult to sue malpracticing doctors, negligent nursing homes and corporate outlaws. These are pluses, they believe, in Republican and corporate-controlled Arkansas.)

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Mallett outlined her unhappiness with the system in this essay, which she sent to the ethics regulators.

WHY BOTHER?

We want our judges to hear each case on its merits, to not make decisions based on personal beliefs, to be unbiased, to follow the law. At least I do, and I know a lot of other people who want and expect that as well. But with more and more dark money and corporate money getting involved in judicial races, why would a fair, nonpartisan individual bother to put themselves out there to be attacked?

The most recent candidate to say to hell with the rules is Supreme Court candidate Barbara Webb. Rules 4.1(7) and 4.2 of the Judicial Code of Conduct state that a judicial candidate shall not seek, accept, or use endorsements from a political organization or an elected official who was elected in a partisan election. It also states that a judicial candidate shall take reasonable measures to ensure that other persons do not undertake these kinds of prohibited activities.

Saying, “I had nothing to do with it” about the blatantly partisan billboard in Fort Smith does not seem like a reasonable measure to make sure the Local Republicans of Fort Smith don’t engage in prohibited activities.

What’s worse, her own campaign has put images of her with Governor Hutchinson and former Governor Mike Huckabee on her mailers. The Hutchinson mailer has a statement made by Hutchinson that her campaign is clearly using as an endorsement for her. There’s no question in anyone’s mind that Ms. Webb is running as a Republican because they think they can get the votes from those voters who only care about party affiliation and not about the actual rules.

I reported these blatant violations of the Judicial Code of Ethics to the Judicial Discipline & Disability Commission last week. They’re response was that they would get back to me in two to four weeks. The election will be over by then. I pointed this out and the response I received was that the JDDC was investigating as quickly as possible, but they would not be able to provide a quick response that would be able to give an official determination in a matter of weeks.

Bottom line: If you’re going to violate judicial campaign ethics, do it with less than a month before the election.

So if nothing is going to be done about the violations before the election, why bother running a clean campaign? Why bother following the rules? Why bother putting yourself out there to be attached by Dark Money ads that say crap like, “Kenneth Hixon is soft on crime,” “Bart Virden over-turned a child molester’s conviction,” or “Tim Cullen wants child molesters to spend less time in prison.” If anyone cares about the truth behind these ads, they’ll know that Hixon, Virden, and Cullen were all upholding the law, but explaining the intricacies of due process and the right to attorneys to lay folks can’t be done in a thirty second commercial.

So why is Judge Chip Welch even bothering to run? Because his hope, like mine, is that the majority of Arkansans want a fair judicial system. They want a Supreme Court Justice who cares about and follows the law. Because the only way to prevent our judicial elections from becoming a nonpartisan charade is for good judges and good lawyers to put themselves out there to suffer through these unfounded attacks by Dark Money and the nonchalant rule-breaking by their opponents. They believe that the rules and the law matters.

And while the JDDC will make no official finding until after the election, I hope there are enough people out there who do care about the rules, who want their judges to abide by the law. If there are enough of us that vote against these dark money, rule-breaking candidates, maybe they will realize our courts are not for sale. We can start by voting for Judge Chip Welch.