Interim Judge H.G. Foster of Conway is a bona fide judicial candidate, Pulaski County Circuit Judge Wendell Griffen ruled Tuesday in a decision that repeated his earlier finding that an Arkansas court rule that suspends lawyers for paying dues late is unconstitutional and cannot be enforced.

Griffen rejected a challenge Tuesday to the candidacy of Foster, an appointed circuit judge in the 20th Judicial Circuit who is seeking an elected position in the district that encompasses Faulkner, Searcy and Van Buren counties. The election is May 20, with early voting beginning May 5.

Foster’s opponent, Conway lawyer Doralee Chandler, disputed his credentials in a lawsuit against the former prosecutor because he’s paid his annual licensing fee late four of the past six years - a lapse Chandler, through attorney Lucien Gillham, argued should disqualify Foster under the constitutional requirement that a circuit judge be licensed for at least six years before taking office.

Chandler’s was the fourth lawsuit to contest the qualifications of judicial candidates who have had administrative suspensions. Only one of the challenged candidates, Little Rock lawyer Valerie Thompson Bailey, has been ruled disqualified by the lapse, preventing her from challenging incumbent Tim Fox for election to the 6th Judicial Circuit of Perry and Pulaski counties.

Fox had his re-election candidacy for the 6th Circuit cleared Monday by a specially appointed judge while Conway lawyer Angela Byrd, who’s seeking a different 20th Circuit post, was deemed qualified for election by Griffen last week when he first found unconstitutional the rule that automatically suspends lawyers who miss the March deadline for paying the annual licensing fee.

Griffen concluded Tuesday’s 2½-hour hearing by reiterating his conclusion that Rule 7 of the bar admission rules can’t be enforced because the provision does not give late-paying lawyers a warning they are going to be sanctioned or an opportunity to challenge the penalty.

“You can’t stop a lawyer from doing what they’re licensed to do without first telling them A, you’re late, and B, we’re going to suspend you from what you are licensed to do,” Griffen said. “There’s no great burden by recognizing and valuing due process. We’re not talking about the collapse of the republic. We’re talking about giving people fundamental fairness.”

Arkansas Supreme Court clerk Les Steen, who is in charge of dues collection,mails a notice to the state’s approximately 9,000 lawyers at the end of December to remind them that the fee is due by March 1.

He sends out a second letter in May to those who may not have paid before compiling a list of delinquent lawyers that is mailed to every judge. But Griffen ruled those mailings are not definitive enough to let affected lawyers know they are in arrears.

Foster’s candidacy is legitimate because despite whatever sanctions were imposed by the Supreme Court clerk for his repeated tardy payments, his law license was never affected, Griffen said.

“There is no testimony or other proof before the court that Judge Foster ever was unlicensed,” Griffen said. “A disciplinary suspension reads the same way as an administrative suspension but they are very different things than being unlicensed.”

Significantly, the Supreme Court that writes the dues rules has never construed a late-payment suspension as a “dislicensing” event, Griffen said.

No appeals have been filed in any of the lawsuits, but Bailey has asked the judge who decided against her, John Cole, to reconsider his decision in light of Griffen’s findings. Foster also has petitioned the Supreme Court to consider the issue directly rather than wait for an appeal.

Front Section, Pages 1 on 04/16/2014