Judicial Review: Fifty-Nine Sitting Judges With Problematic Suspensions

Fifty-nine.

That’s how many current district, circuit, and Court of Appeals judges have had administrative suspensions for non-payment of annual bar dues within a time-frame that would have made them ineligible during their last campaign, would make them ineligible to run in a judicial election in 2014, and/or would make them ineligible when they are up for reelection, at least based on Judge Cole’s decision in Hulse v. Martin.

Notably, the list includes:

Court of Appeals Judge Rhonda Wood, which we’ve discussed.

Court of Appeals Judge Bill Walmsley, last elected in 2010 and up for re-election in 2018.  Walmsley was administratively suspended in 2007, 2008, 2010, and 2012.  The first three would have made him ineligible for election in 2010; the 2010 and 2012 suspensions would also make him ineligible if he runs in 2018.

Circuit Judge Annie Hendricks (Sebastian County), up for reelection in 2016, who — despite all the press over this issue — still has not paid her 2014 dues.

District Judges Jeff Conner (Benton County), up for reelection in 2014; Robert Batton (Jacksonville), retiring in 2016; and J.R. “Rusty” Porter (Phillips County), up for reelection in 2016, all of whom only paid their dues in the last few days.

District Judges Ray Bunch (Bentonville), reelection in 2016; Jason Marshall (Lawrence County), reelection in 2016; and John Throesch (Randolph County), none of whom has paid his 2014 dues.

Of the names on the list, one Court of Appeals judge (Wood) and fourteen circuit judges are running for a judge’s seat for which they are arguably ineligible to run.[foot]As an aside, trying to find comprehensive information about the date of election of various district court judges appears to be a fool’s errand.[/foot]

The circuit judges are Harold Erwin (Newport), Stacey Zimmerman (Fayetteville), Gordon “Mack” McCain (Russellville), Tim Fox (Little Rock), Patti James (Little Rock), Kenny Johnson (Warren), John Putman (Harrison), Gordon Webb (Harrison), Kent Crow (Berryville), Brad Karren (Bentonville), Thomas Smith (Bentonville), H.G. Foster (Conway), Bobby D. McCallister (Benton), and Grisham Phillips (Benton).  And that’s not even counting attorneys such as Angela Byrd, who are not currently on the bench but are running for a seat.

So, where does that leave us?  Honestly, pretty much right back where we started.  To the extent anyone wants to challenge any of these judges, the suit will have to be filed in Pulaski County so that Secretary of State Mark Martin can be a named defendant.  From there, it’s the same analysis — was Judge Cole’s decision correct?

But here’s the thing that I think a lot of people — including Judge H.G. Foster, who filed a petition for writ of quo warranto in the Supreme Court today — are missing: the question is not “does an administrative suspension equal a suspension under the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law?”  It is the far more basic question of “is there a difference between being a ‘licensed’ attorney and being able to actively practice law with that license?”

If there is a distinction, then someone is licensed within the meaning of Amendment 80, even if they have an administrative suspension for non-payment of dues.  If there is not, then anything that removes someone’s ability to practice law — even an administrative suspension — also makes them not licensed for purposes of Amendment 80.

That’s it.  That’s the whole question.  All of the other parts — whether Judge Cole was correct, whether Judge Foster is entitled to a writ of quo warranto, whether there is a due-process question involved in an administrative suspension — are secondary to that overarching question.[foot]For the record, I don’t think Judge Cole was correct, I don’t think Judge Foster is entitled to the writ (because the petition was overly broad and terribly disjointed in the relief sought), and I think there is a due-process question (albeit one with some wiggle room of its own).[/foot]  With any luck, we’ll start to get some of those answered sooner rather than later.

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The full list of judges with relevant suspensions follows (list accurate as of 4/4/2014):