Arkansas Bar Association unveils plan to end justice races

The Arkansas Bar Association plans to debate next month whether to push for a constitutional amendment to separate Supreme Court candidates from campaigns, politics and dark-money donors -- and appoint them to 14-year terms instead.

A draft released Monday outlines a plan for the governor to appoint justices to the nonrenewable terms starting in 2019. Now, Arkansas' seven Supreme Court justices are elected statewide to eight-year terms and can run for re-election.

The amendment would create a nine-person Judicial Nominating Commission, with members appointed by the governor, legislators, the state Supreme Court and the bar association.

The commission would propose three candidates for each seat. The governor would make the final choice.

[DOCUMENT: Read draft of proposed amendment]

The plan will go before the lawyers' governing group on Dec. 16 at the University of Arkansas at Little Rock's W.H. Bowen School of Law, bar President Denise Hoggard said Monday.

The bar association's House of Delegates would have to approve it by a three-fourths vote. Hoggard said she doesn't know how that decision will go.

"I do not have a sense of that. I know it's something the membership takes very seriously, and I think we will have divergent views," she said. "I'm encouraged they will have the conversation."

In a statement accompanying the draft constitutional amendment, a bar association task force noted the influence of large, out-of-state contributions in three recent Supreme Court elections.

The Arkansas Judicial Council, composed of the state's judges, voted last month in favor of continuing to elect justices in the state Supreme Court.

Gov. Asa Hutchinson hadn't seen the bar association's proposal by late Monday, said spokesman J.R. Davis.

"I think until the governor reviews the language, we should reserve comment on that," Davis said.

Supreme Court Chief Justice-elect Dan Kemp, who takes office in January, declined to comment.

The bar association's proposal spells out these steps in choosing Supreme Court justices:

• Members of the Judicial Nominating Commission would be appointed to staggered terms by the governor (two members, four years each); the president pro tempore of the Senate (one member, two years); the speaker of the House (one member, two years); the Arkansas Bar Association (three members, six years); and the Arkansas Supreme Court (two members, four years).

The chief justice would serve as chairman of the nominating commission, as a nonvoting member.

• The nominating commission would consider applications and conduct public interviews with candidates for the high court seats.

• The commission would submit three names to the governor, who would choose one within 30 days. If the governor didn't make a choice in that time, the nominating commission would make the appointment.

• Supreme Court justices elected before Jan. 1, 2019, would continue in office until their terms expired and would be eligible to apply for a future vacancy by appointment.

• The amendment, if approved by the association, would be proposed to the Legislature for placement on the ballot. Voters statewide would ultimately decide.

In its statement accompanying the draft amendment, the bar association task force, led by attorney Jon Comstock of Rogers, said it sought to accomplish three objectives: "to assure a fair and impartial Court, to create a Court independent of perceived improper influences arising from campaign finances and politics, and to continue the high quality of justices on our Supreme Court."

According to the statement, appointed justices and Judicial Nominating Commission members would be "insulated from raising campaign funds. By virtue of the nominating and appointment process, individuals will be able to assume the bench free from even the appearance of influence or conflict due to campaign financing."

The task force also recounted the influence of large, dark-money campaign contributions in the past three Arkansas Supreme Court races.

Ads from those donors targeted lawyer Tim Cullen in 2014, lawyer Clark Mason this year, and Justice Courtney Goodson in her campaign for chief justice this year.

All three lost their contests, although Goodson remains on the high court. The winners were Justice Robin Wynne in 2014 and Justice-elect Shawn Womack and Kemp this year.

"Under Arkansas law, the purchasers of those attack ads do not have to identify the source of their funds," the bar association's statement noted.

While the bar association and its task force "do not assert any fault or wrongdoing on the part of the successful Supreme Court candidates in those three elections, the influence and potential misuse of such unidentified attack ads sounded an alarm," the statement said.

The Arkansas Democrat-Gazette in January published a series called "Cash & The Court" about how six firms of class-action lawyers formed one of the biggest donor groups to high court campaigns since at least 2009.

Current and past justices denied having knowledge of the lawyers' contributions. Ethics rules forbid them from knowing who their donors are. Among the donors was John Goodson of Texarkana, a successful class-action attorney who is married to Courtney Goodson.

The newspaper's research found that John Goodson and other class-action law firms have had at least eight appeals before the high court since mid-2008. The state's electronic court case system didn't reveal any that Goodson's clients lost.

A Section on 11/15/2016

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