Lawmakers hammered the Arkansas Supreme Court on Tuesday over whether it has legal authority to create positions and set compensation levels for the employees hired to fill them - both jobs normally done by the Legislature.
Chief Justice Jim Hannah stressed that a 40-year-old court opinion set the precedence for the court’s ability to use license fees paid by attorneys to create some positions to help regulate the practiceof law in Arkansas.
Whether the court is in the right or if legislative power has been usurped was questioned for the first time this year despite the positions and the method of paying for them being in place for decades.
It would take a lawsuit to challenge the court on the issue, state auditors said - a lawsuit that likely would end up before the court itself.
Members of the Arkansas Legislative Council and Joint Budget Committee spent more than an hour debatingthe issue Tuesday while hearing the court’s budget request for the next two fiscal years.
The court asked for a $250,692 increase that would raise its budget to $4.57 million for fiscal years 2014 and 2015.
The budget was referred to the Constitutional Officers Subcommittee for more discussion.
The Supreme Court’s role filling the positions became an issue for lawmakers after an audit by the Legislative Audit Division in October.
Legislators and auditorsreferred to Article 16, Section 4 of the Arkansas Constitution, which states that the General Assembly shall fix the salaries and number of clerks and employees of the different departments of the state. The court’s other 46 positions were approved and salaries for those positions were set by the Legislature.
But Hannah said Amendment 28 to the Arkansas Constitution, which passed in 1928, gave the court the authority to regulate the practice of law and the professional conduct of attorneysat law.
The 15 positions are funded with attorney license fees. The court determines their compensation levels and in the mid-1990s create a retirement system for those employees. Most of the employees work in areas of the court related to legal regulation or professional conduct, such as the state Supreme Court Office of Professional Conduct, the Office of Professional Programs, the Arkansas Lawyers’ Assistance Program and the Arkansas Access to JusticeCommission.
The Supreme Court is made up of a chief justice and six associate justices who serve eight-year terms.
Sen. Linda Chesterfield, D-Little Rock, questioned what will happen if neither the Legislature nor the judicial branch is willing to concede the issue.
“What recourse does this body have except saying ‘I’m angry about that?’” she said.
Legislative Audit Division counsel Frank Arey said unless a resident chooses to sue, there is not much the Legislature can do to force the court to comply with the Legislature’s interpretation of the law. It would be up to the justices whether to recuse themselves if the matter was challenged and wentbefore the Supreme Court, Arey said.
Hannah said the audit puts him and the Supreme Court in a “unique situation” because the Arkansas Code of Judicial Conduct prohibits him from discussing legal issues that could go before the court.
Sen. Kim Hendren, R-Gravette, asked why the issue continues to be a problem.
“Why don’t you all just fix this by saying ‘maybe we’ve got the right to do it ... let’s work with the Legislature on it?’” he said.
Hannah said the issue is larger than just two branches of government deciding how some employee salaries should be funded, in part, because of a decades-old “binding” opinion by the court.
On Nov. 15, 1971, the court issued an order raising the license fees paid by attorneys from $2 per year to $17 in order “to support the establishment of a full time office.”
He said before the order the court operated with the help of volunteers.
On Dec. 16, 1971, attorney Kenneth Coffelt objecting to the fee increase, argued that the new fee was excessive and that the Supreme Court lacked the authority to raise the fees.
In a Jan. 19, 1972, per curiam opinion, the court ruled that Constitutional Amendment 28 required it to “make the rules regulating the practice of law” and empowered it to take “whatever measures are essential and appropriate” to carry out this duty.
The Arkansas judiciary is “of equal dignity with the legislative and executive departments,” the court declared.
“While I cannot take a position on this matter, it is true that any court or judgewill be bound, and is bound, to follow Supreme Court precedent as to the meaning of Amendment 28,” Hannah said. “And certainly the opinion of 1972 did just that.”
He questioned why the issue had suddenly risen after 40 years, stating that the fact that the employees were paid through a separate cash fund has been in audits for decades.
Sen. Johnny Key, R-Mountain Home, said just because something has existed in state government for so long doesn’t mean it is constitutional.
Hannah said auditors were giving their own interpretation of the constitution.
“It is unusual. I have never seen a legislative audit report which questioned the interpretation of a constitutional provision when it’s already been interpreted by the Supreme Court,” he said.
Northwest Arkansas, Pages 9 on 11/21/2012