COMMENTARY

A momentary lapse

So on this day after the deadline for paying your income taxes, let us ruminate on all these judges and judge candidates who didn’t always pay for their law-license renewals by the annual deadline.

We can begin here: Any lawyers in the state who dutifully renewed their licenses on time for the last six to eight years should proceed to the state Justice Building for investiture and the robing ceremony.

I’m joshing. I think.

All of that eventually will be up to the Arkansas Supreme Court, where three of the seven justices conceivably could be illegal themselves. It turns out they didn’t pay their law-license renewals on time in each of the eight years preceding their elections to the court.

My solution to that predicament—which is to cut slack to all judges except Supreme Court Justice Courtney Goodson—probably amounts to unequal protection under the law. Or a due-process violation. Or some such.

Not that I have any law license on which to base such an assertion. Which puts me on an occasional par with a lot of these judges.

Oh, and get a load of this: Attorney General Dustin McDaniel has informed the Supreme Court that he can’t represent the state’s interest in a case related to this controversy because, well … this happened: In March 2013, his office people gathered up the annual license-renewal money from everybody, but the guy who was supposed to get it delivered didn’t quite get it done on time.

The Supreme Court surely was sympathetic. Empathetic, actually.

Here’s why: In addition to the three justices who didn’t always get renewed on time during the requisite eight years before their elections, the other four, according to the Arkansas Times blog based on an FOI request, have had similar licensure-renewal lapses in their more-distant pasts.

So here’s the deal: A lawyer seeking to run for circuit judge in Pulaski County was thrown off the ballot by a special judge because she had not bothered for a lengthy period of several years preceding her candidacy to renew her law license.

Under Amendment 80, circuit judges are supposed to have been licensed lawyers continuously for the six preceding years to be eligible to serve. Supreme Court justices are supposed to have been licensed lawyers continuously for eight years.

But the real complication was that the special judge hearing the preceding case, John Cole, said the amendment makes no distinction for mere administrative suspensions such as for late payment of license renewal. Whether administrative or disciplinary, “a suspension is a suspension” for purposes of interpreting judge eligibility under Amendment 80, the judge said.

Word got around that anybody who had ever renewed late—and that’s 700 to 900 lawyers—had been considered fully suspended during that period of lateness, even if the eventual late payment was generally understood to have been applied retroactively.

So now we have judges and judge candidates getting sued all over the place to be kept off the ballot in May. For example, the incumbent judge whose challenger had been cast off the ballot in this initial case … well, he hadn’t always paid his annual fee on time during the relevant period either.

In a related matter before the Supreme Court on which he was a respondent, the otherwise disqualifying McDaniel petitioned the court to be logical. It is needlessly “draconian,” his office wrote, to throw judges and judge candidates off the ballot for personal administrative lapses of a relatively short duration—and in matters they previously assumed to have been attended to retroactively.

That strikes me as a reasonable and wise position.

As Faulkner Circuit Judge H.G. Foster, who has been late a time or two, put it: He was not a “former lawyer” during those times when he was late in his renewal. He merely was a tardy lawyer.

And in a ruling in one of myriad cases in this affair, Pulaski County Circuit Judge Wendell Griffin, sometimes known more for bluster than modulated wisdom, showed off his modulated wisdom and ruled that no lawyer may actually lose his license without notice and a hearing.

So in regard to judge candidate eligibility under Amendment 80, I believe we ought to give everybody—including, yes, Justice Goodson—a hall pass this one time.

Maybe the Supreme Court could affirm Judge Griffin’s finding. Then maybe it could put out a rule or a procedure presuming to explain that, under Amendment 80, a one-time purely administrative lapse or oversight in license renewal of less than a few months would trigger a probationary status, not suspension.

But we may need seven specially appointed justices—three, for sure—to get that done, considering the conflicts of interest on the Supreme Court.

John Brummett’s column appears regularly in the Arkansas Democrat-Gazette. Email him at [email protected]. Read his blog at brummett.arkansasonline.com, or his @johnbrummett Twitter feed.

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