Hulse v. Martin Continues to Foster Problems

Before, it probably didn’t matter.  Running against a sitting judge — who, thanks to Arkansas’s somewhat bizarre rules, gets to run as “Circuit Judge David Clark” — was always going to be an uphill battle for Angela Byrd, administrative suspension or not.  (The reelection rate for incumbent judges in non-partisan races is absurdly high.)

But here’s where things get much more interesting on a macro level.

Every year, around mid-May, judges in Arkansas get a letter from the Supreme Court Clerk, which contains a list of all attorneys who failed to pay their annual dues up to that point.  (Quick refresher: Dues become payable January 1, and they are late if not received by March 1.  So this letter to the judges in May is a list of people who are, basically, 2+ months late.)

Last year’s letter contained this:

The circled name is Harry Foster of Conway (because Faulkner County, y’all).  Harry Foster is better known to most folks as Circuit Judge H.G. Foster.

As it happens, Judge Foster is up for reelection this year.  Yet…if “a suspension is a suspension is a suspension,” as Judge John Cole told Valerie Thompson Bailey, then Judge Foster is not eligible to run for that seat.

It does not matter that he is currently in the seat, either; being a judge once does not mean that all other requirements for running the next time are waived.  The rule, as noted by Judge Cole, is that a person has to be a licensed attorney for six years immediately preceding the election.  Under the same analysis that disqualified Bailey from her race, a 2-month (or longer) suspension in 2013 would disqualify Judge Foster from his.

I highly doubt that Judge Cole really thought that something like this would be part of the fallout from his ruling. Nevertheless, here we are, watching a questionable ruling potentially have tremendous impact on any number of judicial races.

If there’s an upside to all of this, it’s that we might ultimately get the entire issue cleared up by the Supreme Court if Judge Foster’s opponent, Doralee Chandler, challenges his qualifications.  Either the Supreme Court will agree with Judge Cole, and every person who has made a late payment of bar dues in the last six years will be ineligible to run for circuit judge this year, or the Court will disagree with him and find that an administrative suspension is not losing one’s license in the same way that disbarment or voluntary forfeiture are.[foot]A third option is that they would draw some sort of distinction between suspension for non-payment of dues and suspension based on failure to obtain CLE hours, though that would still undercut Cole’s point about all suspensions being the same.[/foot]

The worst part, in my opinion, is that Judge Cole could have avoided this mess, had he simply been willing to stay his ruling pending an appeal, rather than opining that he was confident that he had made the right decision.