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Old advice on state judicial donors cut, not revised

High court’s staff clarifies ethics order after confusion by Lisa Hammersly | December 17, 2016 at 3:26 a.m. | Updated December 17, 2016 at 3:26 a.m.

Arkansas judges no longer are governed by an ethics rule that suggested they avoid learning about their campaign's donors, after staff attorneys Friday clarified the Arkansas Supreme Court's revised Code of Judicial Conduct.

The high court deleted the code's old advice to avoid knowledge of donors' identities, which judges and legal experts have said was nearly impossible to follow, since judicial candidates attend their own fundraisers.

But justices declined to adopt the Arkansas Bar Association's proposed language to replace the deleted rule.

The association wanted to expressly permit candidates to learn about campaign contributors, while warning them to consider that information in deciding whether to recuse from a case in which donors are involved.

The state's largest organization of lawyers also had recommended new ethics rules forbidding judges to delay case decisions unnecessarily.

And the Bar Association had proposed a new process for handling judicial recusal, or disqualification, from cases when a judge may not appear impartial.

The high court largely ignored bar recommendations on those issues.

Chief Justice Howard Brill declined to comment on the revised rules in an order issued Thursday.

Judges generally don't discuss their decisions. Other justices on the seven-member court, as well as Chief Justice-elect Dan Kemp, who takes office in January, did not respond to emails and texts Friday seeking comment.

Bar Association President Denise Hoggard said Friday that her group is still studying the ethics code changes.

The Supreme Court's revisions "achieve a measure of reform, but did not go far enough," said Little Rock lawyer Scott Trotter, who appeared on Bar Association panels and forums this year discussing the proposed changes. Trotter said he was not speaking for the association.

He said he hoped that Kemp will pursue further ethics changes that the chief justice-elect suggested earlier this year but were not incorporated by the high court.

An activist in Arkansas politics with Common Cause and other groups for decades, Trotter said he would like to see, among other steps: further rules requiring timely decisions by judges and justices, rules for on-the-record disclosure when judges recuse, an appeals process when judges refuse to disqualify themselves, and a broadened definition of "political organizations" that are not allowed to be part of judicial election campaigns.

Revisions to the state's Code of Judicial Conduct include:

• New language that bans judicial candidates from soliciting the efforts or money of any individual, committee or organization outside the judge's campaign "when such expenses will not be reported by the campaign if the purpose of the expenditure is to influence the outcome of the judge's election."

Experts say the proposal aims to separate judicial candidates from nonprofits that have spent hundreds of thousands of dollars in state Supreme Court elections in Arkansas since 2014, defeating three candidates they targeted.

Such "dark money" groups are not required to name their donors.

The new language also would apply to political action committees and other groups.

• Permission for judges to "make reasonable accommodations" under law to help all litigants to be heard in court, including those who represent themselves.

• Permission for judges and judicial candidates to accept gifts, loans and other items of value from "close friends or relatives," but forbidding them from accepting gifts from other persons, including lawyers.

The Bar Association didn't want judges to accept gifts from "friends" at all, according to the group's proposal. But the Supreme Court's version inserted the word "close" friends.

Justice Courtney Goodson was criticized in 2013 for accepting a $50,000 trip to Italy from Fayetteville lawyer W.H. Taylor, and about $99,000 in gifts in 2011 from her then-boyfriend John Goodson of Texarkana, a well-known class-action lawyer and political donor who is now her husband.

• Additional language that bans judicial candidates from using endorsements from an elected official "who was elected in a partisan election."

• New rules banning judicial candidates from using the term "re-elect" unless they were previously elected to the same office.

• A new rule that allows judicial candidates to return any campaign fund surplus to a nonprofit with a 501(c)(3) tax designation. The Bar Association also had suggested this. Existing ethics rules already allowed candidates to return the money to contributors or the state treasurer.

The Supreme Court's revised code of conduct did not incorporate a Bar Association proposal to prohibit judges from delaying case decisions.

The bar had proposed adding: "Without good cause, a judge shall not delay deciding a matter assigned to the judge and shall not delay any process that leads to deciding a matter. An appellate judge or justice shall not delay drafting a majority or dissenting opinion, or delay providing comment on a draft majority or dissenting opinion, except for good cause unrelated to avoiding a timely decision on the appeal."

In 2015, a citizen complained to the state Judicial Discipline and Disability Commission that four Arkansas Supreme Court justices unethically delayed a decision on a same-sex marriage case for political reasons. The justices were cleared of misconduct.

The revised rules of ethical conduct were clarified Friday after their release the day before created confusion.

The high court handed down its 18-page order Thursday morning containing ethics guidelines that had been in the works for months.

But circuit judges and others complained that they were confused by the Supreme Court's order because changes to the old rules weren't marked.

An attorney for the Administrative Office of the Courts spent several hours Thursday and Friday unraveling which parts of the ethics code were added, changed or deleted. About 12:30 p.m. Friday, Administrative Office of the Courts Director J.D. Gingerich emailed copies labeled: "Illustration of changes to the Code."

The revisions come after a year of factious Supreme Court election races, "dark money" campaign contributions from unknown donors, questions about large campaign contributions by class-action lawyers who appear before the Arkansas Supreme Court and other controversies.

An Arkansas Democrat-Gazette series last January reported that six law firms that work together on class-action cases were among the biggest campaign donors since 2009 to current, elected Supreme Court justices.

The lawyers had won eight cases before the Supreme Court in that time, the newspaper found. Court records didn't show any losses.

Justices interviewed by the newspaper denied any appearance of impropriety because they followed the Code of Judicial Conduct's advice to avoid learning the identities of their campaign donors.

The court as a whole, per curiam, deleted that part of the code in Thursday's order.

A Section on 12/17/2016

Print Headline: Old advice on judicial donors cut, not revised


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