Kelly v. Martin ( 2014 )

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SUPREME COURT OF ARKANSAS
No. CV-14-367
JOHN K. KELLY Opinion Delivered May 14, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. CV-2014-1297]
MARK MARTIN, IN HIS OFFICIAL
CAPACITY AS THE SECRETARY OF HONORABLE SAM BIRD, SPECIAL
STATE FOR THE STATE OF JUDGE
ARKANSAS; ROB HILL, LOU ANN
CARTER, AND JEFF OLMSTED, IN
THEIR OFFICIAL CAPACITIES AS
THE COMMISSIONERS OF THE
PERRY COUNTY ELECTION
COMMISSION; LEONARD A. BOYLE,
SR., CHRIS BURKS, AND ALEX
REED, IN THEIR OFFICIAL
CAPACITIES AS THE
COMMISSIONERS OF THE PULASKI
COUNTY ELECTION COMMISSION;
AND TIMOTHY D. FOX
APPELLEES
TIMOTHY DAVIS FOX
THIRD-PARTY APPELLANT
V.
LESLIE STEEN, IN HIS OFFICIAL
CAPACITY AS CLERK OF THE
SUPREME COURT OF ARKANSAS
AND ARKANSAS COURT OF
APPEALS
THIRD-PARTY APPELLEE AFFIRMED.
JOSEPHINE LINKER HART, Associate Justice
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John K. Kelly appeals from the Pulaski County Circuit Court’s order finding that Judge
Timothy D. Fox was eligible “to be a candidate for the position of Circuit Judge, Judicial
District 06, Division 6, Sub-district 6.2, in the election for said judgeship scheduled to be
conducted on May 20, 2014.” Specifically, Kelly asserts that Judge Fox was delinquent in the
payment of his 2013 annual license fee from March 2 until April 16, 2013. Kelly concludes
that because he was delinquent for that period of time, he was not a “licensed attorney” for
the six years immediately preceding the date of assuming office, as mandated by amendment
80 to the Arkansas Constitution. Kelly concludes that Judge Fox thus is ineligible to be a
candidate. This case was expedited, and the parties were ordered to file simultaneous briefs.
The State filed an amicus curiae brief. We may hear this case because it is an appeal pertaining
to elections and election procedure. Ark. Sup. Ct. R. 1-2(a)(4) (2014). We affirm.1
Election proceedings are governed by statute. Zolliecoffer v. Post, 371 Ark. 263, 264,
265 S.W.3d 114, 116 (2007). The two types of election proceedings provided for by statute
are pre-election-eligibility challenges and post-election, election contests. Id., 265 S.W.3d at
116. A party challenging a candidate’s eligibility to stand for election must bring a pre-election
challenge by way of a petition for writ of mandamus and declaratory judgment. Id. at 265, 265
1
Judge Fox filed a notice of appeal from the dismissal of his third-party complaint
against Leslie Steen in his official capacity as clerk of this court in which Fox asserted that an
automatic suspension based on nonpayment of the annual license fee violated due-process
provisions of the United States Constitution and the Arkansas Constitution. Fox, however,
does not raise on appeal any issue relating to the circuit court’s dismissal.
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S.W.3d at 116. Our statute on pre-election-eligibility challenges provides in part that “[n]o
person’s name shall be placed upon the ballot as a candidate for any public office in this state
at any election unless the person is qualified and eligible at the time of filing, or as otherwise
may be provided by law, as a candidate for the office to hold the public office for which he
or she is a candidate.” Ark. Code Ann. § 7-5-207(b) (Supp. 2013).
Kelly petitioned the circuit court for issuance of a writ of mandamus and for
declaratory judgment. Observing that section 16(B) of amendment 80 to the Arkansas
Constitution requires that circuit judges “shall have been licensed attorneys of this state for
at least six years immediately preceding the date of assuming office,” Kelly asserted that Judge
Fox is a candidate for the position of Pulaski County circuit judge, and that the elected
candidate for this position would assume office on or about January 1, 2015. Kelly argued that
to satisfy section 16(B) of amendment 80, a candidate for the position of circuit judge must
have been a licensed attorney in this state since at least January 1, 2009. Kelly alleged that
Judge Fox failed to pay his annual license fee, which was due March 1, 2013. Kelly further
alleged that Judge Fox’s “license as an attorney in the state of Arkansas was suspended for the
period of time between March 2, 2013, and April 16, 2013.” Kelly argued that “[d]uring the
period of time” that Judge Fox “was suspended, he was not a ‘licensed attorney,’” and thus
he was not a licensed attorney for the constitutionally mandated six-year period immediately
preceding the date of assuming office. Kelly concluded that because Judge Fox is not a
qualified or eligible candidate for the position of circuit judge, his name could not be included
on the ballot for this office. Kelly asked the circuit court to issue a declaratory judgment
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finding that Judge Fox was unqualified and ineligible for the position and to issue writs of
mandamus ordering the Arkansas Secretary of State and the Commissioners of the Pulaski
County Election Commission and the Perry County Election Commission not to include
Judge Fox on any ballot as a candidate for circuit judge.
At the hearing on the matter, the evidence established that Judge Fox, who was
admitted to the bar in 1981, is currently serving his last year of a six-year term as a circuit
judge. Further, to continue to maintain his judicial position, Judge Fox must stand for election
in the May 2014 primary. If elected, his term of office will begin in January 2015. The
evidence also established that Judge Fox’s annual license fee was due March 1, 2013, and that
he paid the $200 fee along with a $100 late fee on April 16, 2013.
In its oral ruling, the circuit court found that the evidence established that Judge Fox
had been delinquent on his annual license fee. The court found that though Judge Fox had
been suspended, this did not constitute a revocation or termination of his license. In its
written order, the circuit court found that Fox was an eligible candidate. Kelly appeals from
that decision.
Amendment 80, section 16(B) of the Arkansas Constitution, which was adopted by the
voters of this state at the November 2000 general election, and which became effective July
1, 2001, provides that circuit judges “shall have been licensed attorneys of this state for at least
six years immediately preceding the date of assuming office.” The question presented to this
court is the interpretation of the word “licensed” in amendment 80. When interpreting the
Arkansas Constitution, we read it as written, and language that is plain and unambiguous is
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to be given its obvious and common meaning. City of Fayetteville v. Washington Cnty., 369
Ark. 455, 468, 255 S.W.3d 844, 853–54 (2007).
Amendment 28 to the Arkansas Constitution provides that the “Supreme Court shall
make rules regulating the practice of law and the professional conduct of attorneys at law.”
The language of amendment 28 “is mandatory, affirmatively imposing upon this Court the
duty of making and enforcing rules governing the practice of law and the conduct of lawyers.”
In re Sup. Ct. License Fees, 251 Ark. 800, 801, 483 S.W.2d 174, 175 (1972). The Arkansas
Constitution must be considered as a whole, and to understand the meaning of any part of it,
we must read it in the light of other provisions relating to the same subject matter. Wells v.
Riviere, 269 Ark. 156, 165, 599 S.W.2d 375, 379 (1980). Thus, we may determine what it
means to be “licensed” under section 16(B) of amendment 80 by considering amendment 28
and the constitutionally mandated rules this court adopted to regulate the practice of law and
the professional conduct of attorneys at law.
When this court construes the meaning and effect of a court rule, we use the rules of
statutory construction and construe the rule just as it reads, giving the words their ordinary
and usually accepted meaning in common language. Richard v. Union Pac. R.R. Co., 2012
Ark. 129, at 4–5, 388 S.W.3d 422, 425. The rules relevant to our discussion of the meaning
of the word “licensed” have essentially remained unchanged since the passage of amendment
80. Rule VII of the Rules Governing Admission to the Bar provides that an “annual license
fee . . . shall be imposed upon each attorney actively licensed to practice law in this State.”
Ark. Bar Adm. R. VII(A) (2013). Further, the rule provides that “[f]ailure to pay the annual
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license fee provided in subsection A of this Section shall automatically suspend the delinquent
lawyer from the practice of law in Arkansas.” Ark. Bar Adm. R. VII(C). That rule also
provides that “[w]here the delinquency is for three years or less, reinstatement may be had by
the payment of all such delinquent dues, and a penalty.” Ark. Bar Adm. R. VII(C)(2).
Further, the rule provides that “[i]t shall be the duty of the Clerk to maintain a public record
of licensed attorneys in the state of Arkansas and a list of all attorneys no longer licensed and
the reason therefore, e.g., deceased, suspended, disbarred, surrender of license, inactive,
delinquency of fee, disabled or retired.” Ark. Bar Adm. R. VII(E).
The term “suspension” as it relates to the automatic suspension of a delinquent lawyer
from the practice of law in Arkansas for failure to pay the annual license fee was not defined
in Rule VII. The plain language of the rule itself indicates that the “suspension” is from the
“practice of law.” This court has issued a separate set of rules, the Procedures of the Arkansas
Supreme Court Regulating Professional Conduct of Attorneys at Law. Therein are defined
the types of sanctions available to address misconduct, including definitions of “disbarment”
and “suspension.” “Disbarment” is defined as the “termination of the lawyer’s privilege to
practice law and removal of the lawyer’s name from the list of licensed attorneys.” Ark. Sup.
Ct. P. Regulating Prof’l Conduct § 17(D)(1) (2013). Further, “suspension” is defined as a
“limitation for a fixed period of time on the lawyer’s privilege to engage in the practice of
law.” Ark. Sup. Ct. P. Regulating Prof’l Conduct § 17(D)(2). One rule of statutory
construction is that all acts passed upon the same subject are in pari materia, and must be taken
and construed together. Salley v. Cent. Ark. Transit Auth., 326 Ark. 804, 806, 934 S.W.2d
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510, 511 (1996). Thus, we may apply the definition of “suspension” found in section 17 to
Rule VII, as these are both rules of this court “regulating the practice of law and the
professional conduct of attorneys at law” as provided in amendment 28.
According to these definitions, a “disbarment” terminates the lawyer’s privilege to
practice law and results in the removal of the lawyer’s name from the list of licensed attorneys,
while a “suspension” constitutes a lesser sanction that only limits the lawyer’s privilege to
engage in the practice of law. Rule VII provides that “[f]ailure to pay the annual license fee
. . . shall automatically suspend the delinquent lawyer from the practice of law in Arkansas.”
A “suspension” for failure to pay the annual license fee limits the lawyer’s privilege to engage
in the practice of law. Contrasting the definitions of “suspension” and “disbarment,” a lawyer
under suspension remains licensed, because that license has not been terminated and has not
resulted in the removal of the lawyer’s name from the list of licensed attorneys; it is only the
lawyer’s privilege to engage in the practice of law that is limited.2 Thus, under amendment
80, a lawyer who is suspended for failure to pay the annual license fee continues to be a
“licensed” attorney.
Furthermore, this distinction between a licensed attorney and the practice of law may
be found in amendment 80 itself. As noted above, under section 16(B) of the Arkansas
2
The dissent remarks that “the majority improperly goes beyond the plain language of
amendment 80, section 16 to reach this result” and then promptly uses a layman’s dictionary
to define the word “suspend,” a word that does not appear in that constitutional provision.
Further, the dissent’s reliance on a dictionary over our own definition of the word misses the
meaning that this court has attributed to the word. Nevertheless, the dissent ultimately adopts
our definition.
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Constitution, circuit judges “shall have been licensed attorneys of this state for at least six years
immediately preceding the date of assuming office.” Section 14 provides in part that “Justices
and Judges, except District Judges, shall not practice law during their respective terms of
office.” Thus, while amendment 80 requires circuit judges to be licensed, that requirement
is distinguished from the practice of law.3
Kelly notes that, under Rule VII(C)(2), “reinstatement may be had by the payment
of all such delinquent dues, and a penalty.” He urges that the word “reinstatement” compels
the conclusion that an attorney’s license is being reinstated; therefore, the license was lost. We
disagree, as a fair reading of Rule VII indicates that the “reinstatement” is in the form of
reinstating the delinquent attorney’s privilege to practice law. In fact, the Procedures of the
Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law make a
distinction between “reinstatement” that follows “any period of suspension from the practice
of law,” and “readmission” that follows “disbarment.” Ark. Sup. Ct. P. Regulating Prof’l
Conduct §§ 23, 24. Kelly asserts that the only privilege an attorney receives by being licensed
is the ability to practice law, and if that ability is suspended, the attorney does not have a
license. However, as these rules show, an attorney who has been suspended from the practice
of law may be reinstated, while an attorney who has been disbarred cannot. This distinction
3
The dissent remarks that if an attorney’s right to practice law is taken away, “that
‘license’ is not worth the paper it is printed on.” The fallacy of this position can best be
demonstrated by the observation that a judge is specifically prohibited from practicing law by
amendment 80, section 14. Thus, by the dissent’s logic, upon assuming judicial office, a judge
would become unlicensed and ineligible to run for reelection.
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shows that even if the attorney has been suspended from the practice of law, the license retains
a privilege.
We are not unmindful that Rule VII(E) instructs the clerk to maintain a “list of all
attorneys no longer licensed and the reason therefore, e.g., deceased, suspended, disbarred,
surrender of license, inactive, delinquency of fee, disabled or retired.” It may be suggested that
this provision demonstrates that a “suspended” attorney is “no longer licensed.” This
interpretation, however, demands too much from this subsection. Rather, the point of
maintaining the public record is to provide for the public a list of attorneys, whether they be
deceased, suspended, disbarred, license surrendered, inactive, delinquent payment of fee,
disabled, or retired, who no longer practice law and the reason therefore. We observe that
upon the transfer to inactive status, the attorney is not “entitled to practice in Arkansas.” Ark.
Sup. Ct. P. Regulating Prof’l Conduct § 25(F). The attorney may be reinstated “to active
status upon a showing that any disability has been removed and the attorney is fit to resume
the practice of law.” Ark. Sup. Ct. P. Regulating Prof’l Conduct § 25(G). Thus, for an
inactive attorney, like an attorney suspended from the practice of law for delinquency, a limit
is imposed on the attorney’s entitlement to practice law; however, the privilege to practice
law is not terminated and the lawyer’s name is not removed from the list of licensed attorneys.
In any event, if there is a conflict, the specific provision in Rule VII(C) that “[f]ailure to pay
the annual license fee provided in subsection A of this Section shall automatically suspend the
delinquent lawyer from the practice of law in Arkansas” controls over the general statute that
merely sets out the clerk’s recordkeeping duties; under the rules of statutory construction, we
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give effect to the specific rule over the general rule. See, e.g., Walden v. State, 2014 Ark. 193,
at 10, ___ S.W.3d ___, ___.
Kelly also argues that the doctrine of res judicata precluded the circuit court from
ruling against him. He asserts that a different circuit court, in a case involving another
candidate for that same judicial seat, considered the same legal issues raised here. He contends
that the other court’s ruling supported the position that Kelly takes here, and that Judge Fox
and the other candidate are in some fashion in “privity” with one another. We conclude that
res judicata does not apply. The true reason for holding that an issue is barred by res judicata
is not necessarily the identity or privity of the parties, but is instead to put an end to litigation
by preventing a party who has had one fair trial on a matter from relitigating the matter a
second time. Crockett v. C.A.G. Invs., Inc., 2011 Ark. 208, at 9, 381 S.W.3d 793, 799. Judge
Fox’s eligibility as a candidate was not litigated in the other case.
Accordingly, we conclude that, under amendment 80, even though Judge Fox failed
to pay his annual license fee for forty-five days in 2013, he nevertheless remained a licensed
attorney during the period of delinquency because his license was not terminated and his
name was not removed from the list of licensed attorneys. Because he was a licensed attorney
during that period and had been admitted to the bar in 1981, he was, as required by
amendment 80, a “licensed attorney[ ] of this state for at least six years immediately preceding
the date of” the date on which the elected circuit judge will assume office. Thus, we affirm
the circuit court’s decision that Judge Fox was eligible “to be a candidate for the position of
Circuit Judge, Judicial District 06, Division 6, Sub-district 6.2, in the election for said
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judgeship scheduled to be conducted on May 20, 2014.”4
Affirmed.
SPECIAL JUSTICES RAYMOND R. ABRAMSON, WOODY BASSETT, and TODD TURNER,
join in this opinion.
CORBIN, J., dissents.
DANIELSON, BAKER, and GOODSON, JJ., not participating.
DONALD L. CORBIN, Justice, dissenting. Recently, this court was publicly accused
of being results oriented. Never has that been more evident than with today’s decisions.
The arguments raised to us, in both length and intricacy, are a fine demonstration of
what lawyers are best at doing—lawyering. But hair-splitting legal arguments and analysis are
not necessary to resolve the issue here presented. Only plain language and ordinary meaning
are necessary. If the language of a constitutional provision is plain and unambiguous, each
word must be given its obvious and common meaning. Harris v. City of Little Rock, 344 Ark.
95, 40 S.W.3d 214 (2001). “Neither rules of construction nor rules of interpretation may be
used to defeat the clear and certain meaning of a constitutional provision.” Id. at 99, 40
S.W.3d at 217 (quoting Daniel v. Jones, 332 Ark. 489, 499, 966 S.W.2d 226, 231 (1998)).
Amendment 80 requires that a candidate for judicial office meet certain qualifications
4
The dissent remarks, “Recently, this court was publicly accused of being results
oriented. Never has that been more evident than with today’s decision.” Although every
opinion that this court promulgates achieves a “result,” it is disappointing that a justice of this
court would resort to this rhetoric.
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to be eligible to assume the bench. For purposes of the instant appeal, which involves an
election for a circuit judgeship, the plain language of amendment 80 requires that a circuit
judge must be a licensed attorney for six years immediately preceding the date he or she takes
office. The purpose of such a qualification is to ensure that those elected to serve as judges
are experienced and learned in the law. Those requirements have now been needlessly tossed
aside.
The majority opines that the plain language of the word “suspend,” as used in Rule
VII(C), means that an attorney who has been suspended from the practice of law remains a
licensed attorney, particularly when the word “suspend” is considered in light of the
definitions found in the Procedures Regulating Professional Conduct.1 It is obvious that the
majority improperly goes beyond the plain language of amendment 80, section 16 to reach
this result. Webster’s Third New International Dictionary defines “suspend” as “to debar or cause
to withdraw temporarily from any privilege, office, or function; to cause to cease for a time;
stop temporarily.” Webster’s Third New International Dictionary 2303 (2002). Clearly, when
an attorney is suspended, his or her privilege to practice law temporarily ceases. In that
regard I agree with the majority. But, the problem is that the majority totally fails to consider
what it means to be suspended from the practice of law. I think the Honorable John Cole
stated it best in Bailey v. Martin, 2014 Ark. ___, ___ S.W.3d ___, decided this same day, when
1
The Procedures specifically provide that they are applicable only in cases where an
action has been instituted against an attorney and is within the purview of this court’s
Committee on Professional Conduct and thus are wholly inapplicable to the instant case.
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he reasoned that “you don’t have a license if you don’t have the right to practice law.”2 See,
e.g., In re Lewis, 308 Ark. 610, 826 S.W.2d 264 (1992) (per curiam) (stating that failure to
timely pay the annual license fee automatically suspends the delinquent member from the
Bar); Widmer v. Widmer, 288 Ark. 381, 705 S.W.2d 878 (1986) (holding that an attorney who
failed to pay his license fee performed services for his client “while his license was suspended”
and thus was precluded from collecting his attorney’s fee). The majority fails to recognize that
an attorney’s license grants that person the right to practice law, nothing more. If that right
is taken away, even for a short period of time, that “license” is not worth the paper it is
printed on. It is as simple as that. Unfortunately, simplicity and plain language do not allow
for the majority’s desired result in this case.
Because the majority has tortured the meaning of “suspend” in such an absurd way,
a lawyer who is suspended, either administratively or for misconduct, may now qualify as a
judicial candidate. It is even more ludicrous to conclude that an attorney may qualify as a
judicial candidate, even though he or she is precluded from engaging in the practice of law;
yet, that is the precise result of the majority’s holding. This court has long held that it will
not engage in statutory interpretations that defy common sense and produce absurd results.
E.g., Dep’t of Career Educ., Div. of Rehab. Servs. v. Means, 2013 Ark. 173, ___ S.W.3d ___.
2
It is not lost on me that the judicial candidate in the instant case benefits the most
from today’s ruling, as he has now earned the right to run uncontested despite the fact that
his license was suspended, just as his opponent’s was; however, his opponent does not get to
benefit from the absurdity of today’s rulings because she was removed from the ballot and
failed to pursue more immediate relief from this court.
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Apparently, that is no longer the case.
For these reasons, I dissent.
Samuel A. Perroni, Esq.; and Matt Campbell, Esq., for appellant.
Martha Adcock, General Counsel, and L. Justin Tate, Associate General Counsel, for
appellee Secretary of State Mark Martin.
Amanda Mankin-Mitchell and Karla M. Burnett, Pulaski County Attorney’s Office; and
Larry Jegley, Prosecuting Attorney, Sixth Judicial District, for appellees Pulaski County
Election Commission and Perry County Election Commission.
Mark W. Nichols, for appellee/third-party appellant Timothy Davis Fox.
Bristow & Richardson, PLLC, by: Bill W. Bristow, for third-party appellee Leslie Steen.
Colin R. Jorgensen, Ass’t Att’y Gen., for amicus curiae Arkansas Attorney General
Dustin McDaniel.
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