Knock On Wood

In the last couple of days, lawsuits have been filed challenging the eligibility of Angela Byrd, Judge H.G. Foster, and Judge Tim Fox to run for circuit judge.  (Full disclosure: I am one of the attorneys for the plaintiff in the suit against Judge Fox.)

Because she, too, has a past license suspension that could impact her eligibility, Court of Appeals Judge Rhonda Wood today issued a statement:

Earlier this week, news reports questioned my uncontested candidacy for the Arkansas Supreme Court because of an issue with my attorney license dues payment in 2008.[foot]Technically, we questioned your eligibility, not your candidacy, but ok. -Ed.[/foot]  I take this opportunity to explain what happened.

On February 1, 2008, I made a good faith attempt to pay my license fee in a timely manner.  I made a clerical error and my timely check was for the wrong amount, $100 instead of $200.  As soon as I was notified of my error, I corrected it and paid the remaining amount.  Unfortunately, this was on March 6th, three days after the license fee deadline that year of March 3rd.  I was then notified I needed to pay a late fee of $100, which I immediately paid on March 11th.

I take full responsibility for the incorrect payment amount.  However, I was never notified of the short suspension until media contacted me this week. My name was not included on the 2008 list of attorneys with delinquent dues.  Finally, my license was never revoked, and I have been a licensed attorney in Arkansas since 1999.

Amendment 80 requires me to have been a licensed attorney the eight years prior to serving on the Arkansas Supreme Court.  I have served as a Circuit Court Judge from 2007 – 2012 and as a Court of Appeals Judge since 2013.  Both positions also required me to be a licensed attorney for a certain period of time and no person has ever before questioned my qualifications to serve on the bench.

I believe I meet the qualifications to serve on the Arkansas Supreme Court and I am prepared to defend my right to do so.  I have admirably served our state, and I look forward to doing so again on our highest court.

Now, I get that Judge Wood may be concerned that she might face a lawsuit challenging her eligibility.  But here’s the thing: as of right now, and as of when she sent out this statement, she has not been sued.  Why does that matter?

Because she is a sitting appellate judge and she is running for a seat on the Supreme Court, and she just said:

I have been a licensed attorney in Arkansas since 1999. […] I believe I meet the qualifications to serve on the Arkansas Supreme Court[.]

Except determining whether an administrative suspension means someone is not licensed and, therefore, does not meet the qualifications for a judicial seat is the entire crux of the lawsuits against Byrd, Foster, and Fox.  And those suits very likely will wind up in front of the Supreme Court in the near future.

Under Rule 4.1(A) of the Code of Judicial Conduct, a judge or judicial candidate shall not:

(12) make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court; or

(13) in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

Whether this statement would violate (A)(12) is debatable; it would turn on whether a reasonable person would think that a court of appeals judge’s statement about the issue would impact the decisions of the circuit courts in the three pending suits or impact the Supreme Court’s decision if one or more of those suits goes up on appeal.  However, given her ties to the district where Byrd and Foster are running, as well as her ties to Mark Martin (a named defendant in all of the suits), for her to comment on the primary legal issue of all three cases certainly raises the possibility that this statement was improper.

As for Rule 4.1(A)(13), Official Comment 13A states:

Before speaking or announcing personal views on social or political topics in a judicial campaign, candidates should consider the impact of their statements. Such statements may suggest that the judge lacks impartiality. […]  When making such statements, a judge should acknowledge the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views.

More importantly, Rule 4.1(A)(13) is derived from Judicial Canon 4, which explicitly holds:

A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.

Campaign activity?  Check.  The announcement was sent on her campaign letterhead and specifically referenced her candidacy for the Supreme Court.

Impartiality?  Check.  She just stated her opinion on the pending case and, in effect, stated how she would rule if the case were presented to her as an appellate judge.

Oops.

One other thing that jumped out at me about Wood’s statement was the absurdity of her excuse.  In 2008, when she had been licensed for nearly a decade, she suddenly paid the wrong amount for her yearly dues?  From 1999 (when she was licensed) until 2002, Wood would have paid $75 each year for her annual dues.  In 2001, the dues were raised, and that raise became effective in 2003, when Wood would have paid $175, which is the same total she would have paid in 2004 through 2007.  A new raise in the dues became effective on January 1, 2008, when they were increased to $200.

But we’re supposed to believe that, due to a “clerical error,” Wood not only wrote the number 100 on her check, but she also spelled out “One Hundred” on there as well?  It never crossed her mind that it would be strange for dues to suddenly be $75 less than she had paid for five straight years?  And the clerk’s office apparently held this $100 check for an entire month before letting her know that the amount was wrong?

That’s the story we’re going with here?

Okay.  If you say so.