Ark. Ethics Comm'n v. Weaver

• Decision Date: 04 March 2021
• Docket Number: No. CV-20-171,CV-20-171
• Parties: ARKANSAS ETHICS COMMISSION, Appellant/Cross-Appellee v. Susan K. WEAVER, Appellee/Cross-Appellant
• Court: Arkansas Supreme Court

2021 Ark. 38

617 S.W.3d 680

ARKANSAS ETHICS COMMISSION, Appellant/Cross-Appellee

v.Susan K. WEAVER, Appellee/Cross-Appellant

No. CV-20-171

Supreme Court of Arkansas.

Opinion Delivered: March 4, 2021

Leslie Rutledge, Att'y Gen., by: Kesia Morrison, Ass't Att'y Gen., for appellant/cross-appellee.

Jeff Rosenzweig, for appellee/cross-appellant.

COURTNEY RAE HUDSON, Associate Justice

Appellant Arkansas Ethics Commission appeals the Pulaski County Circuit Court's order vacating the Commission's finding that appellee Susan K. Weaver violated Arkansas Code Annotated section 7-6-228(c)(1) (Supp. 2019) when a magazine published her campaign advertisement without the required "paid for by" disclosure during Weaver's successful 2018 judicial campaign. For reversal, the Commission argues that it correctly interpreted section 7-6-228(c)(1) to find Weaver guilty of a violation in the absence of a culpable mental state. Alternatively, the Commission argues that substantial evidence supports its finding that Weaver was negligent. On cross-appeal, Weaver argues that the Commission's procedures violated her due process rights. We reverse the Commission's decision in part and vacate in part on direct appeal and dismiss on cross-appeal.

The relevant facts are not disputed. During Weaver's campaign for Circuit Judge—Division 1, Faulkner County, Weaver's campaign worked with Faulkner Lifestyle to create a print ad to run in the magazine. LeAnn Livingston, a staff member from Weaver's campaign, and Raegan Miller, a Faulkner Lifestyle employee, exchanged emails regarding the ad during the editing process. On April 22, 2018, Miller sent Livingston a copy of the ad, and Livingston emailed Miller the next day saying that she loved it but wanted to add Facebook, Instagram, and Twitter icons. Miller responded, "Sure thing!" Later that day, Livingston emailed Miller asking for an invoice so that she could pay for the ad. Critically, Livingston sent a final email to Miller the next day directing her to include the "paid for by" language. Unfortunately, Miller did not include the language, but nonetheless, ran the unsanctioned ad. The publication took full responsibility for the oversight.

Weaver's 2018 opponent filed an ethics complaint on July 10, 2018.¹ Upon receiving the complaint, the Commission notified Weaver that it would investigate whether or not she had "violated Ark. Code Ann. § 7-6-228(c)(1) by omitting the disclaimer language on ... a full page ad which ran in the May 2018 edition of Faulkner Lifestyle." Weaver responded, strongly denied any wrongdoing, and stated, "I did not fail to include the language, rather the magazine did." Weaver attached the relevant emails as supporting exhibits.

The Commission met on October 19, 2018, to consider the results of its staff's investigation into the complaint. After the staff's presentation of the evidence, the Commission found probable cause that Weaver had violated section 7-6-228(c)(1) when Faulkner Lifestyle published the print ad without the required disclosure. The Commission notified Weaver of this finding and offered to settle the case by issuing a public letter of caution as a sanction. Weaver declined the offer and requested a hearing.

The Commission held a public hearing on January 18, 2019. Before the hearing, Weaver's counsel filed a motion to declare the Commission's procedures unconstitutional. Weaver claimed that the Commission's procedures violated her state and federal due process rights because the Commission is the singular entity that determines whether there is probable cause to find a violation, offers a settlement, and adjudicates the issue if the settlement offer is rejected. At the hearing, Weaver's counsel presented arguments regarding the constitutionality of the Commission's procedures, whether section 7-6-228(c)(1) requires a culpable mental state, and whether the advertisement was "campaign material" covered by that section. The Commission determined that its procedures were constitutional and that the ad constituted campaign material and violated section 7-6-228(c)(1). The Commission further found that section 7-6-228(c)(1) did not require a culpable mental state, but that if it did, Weaver violated that section by acting negligently. However, the Commission found good cause to impose no sanction. Weaver sought judicial review pursuant to Arkansas Code Annotated section 25-15-212 (Supp. 2019) of the Administrative Procedure Act. The circuit court concluded that the Commission's procedures were constitutional but that the Commission erred in its conclusion that the standard of proof for a violation of section 7-6-228(c)(1) is strict liability. The circuit court further determined that the Commission's alternative finding that Weaver was negligent was not supported by substantial evidence. It is from this order that the parties appeal.

Our review on appeal is directed toward the decision of the administrative agency, rather than the decision of the circuit court.

Hurd v. Ark. Oil & Gas Comm'n , 2020 Ark. 210, 601 S.W.3d 100. As with all appeals from administrative decisions under the Administrative Procedure Act, either the circuit court or the appellate court may reverse the agency decision if it concludes that the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are (1) in violation of constitutional or statutory provisions; (2) in excess of the agency's statutory authority; (3) made upon unlawful procedure; (4) affected by other error or law; (5) not supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by abuse of discretion. Id. ; Ark. Code Ann. § 25-15-212(h).

To establish an absence of substantial evidence to support the decision, the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Teston v. Ark. State Bd. of Chiropractic Exam'rs , 361 Ark. 300, 206 S.W.3d 796 (2005). When the agency's decision is supported by substantial evidence, it automatically follows that the decision cannot be classified as arbitrary and capricious. Wright v. Ark. State Plant Bd. , 311 Ark. 125, 842 S.W.2d 42 (1992). We afford no deference to an agency's statutory interpretation; our review is de novo. Myers v. Yamato Kogyo Co., Ltd. , 2020 Ark. 135, 597 S.W.3d 613.

This appeal involves our interpretation of section 7-6-228(c)(1). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Taylor v. Biba , 2014 Ark. 22, 2014 WL 260978. We reconcile statutory provisions in order to make them consistent, harmonious, and sensible and to give effect to every part. 3 Rivers Logistics, Inc. v. Brown-Wright Post No. 158 , 2018 Ark. 91, 548 S.W.3d 137. When the language of a statute is plain and unambiguous, this court determines legislative intent from the ordinary meaning of the language used. Id.

In this instance, there is no question that Faulkner Lifestyle published an ad in support of Weaver's candidacy without the statutorily required financial disclosure language. Section 7-6-228(c)(1) requires that

[c]ampaign signs, campaign literature, and other printed campaign materials under this section shall clearly contain the words "Paid for by" followed by the name of the candidate, committee, or person who paid for the campaign sign, campaign literature, or other printed campaign materials.

On appeal, the Commission argues that section 7-6-228(c)(1) does not have a culpable-mental-state requirement, and if the General Assembly had wanted one, it could have included one. Alternatively, the Commission argues that its finding that Weaver was negligent was supported by substantial evidence. However, we hold that substantial evidence does not support the Commission's conclusion under either standard.

The Commission's final order states that Weaver "committed a violation of Ark. Code Ann. § 7-6-228(c)(1) in her capacity as a candidate for Circuit Judge—Division 1, Faulkner County during the 2018 election cycle by placing a campaign ad in the May 2018 edition of Faulkner Lifestyle which did not include the ‘Paid for by’ disclaimer required by statute." Although the Commission argues that section 7-6-228(c)(1) either has no mental state requirement or that Weaver negligently violated the statute's provisions, we conclude that the required mental state is inconsequential given the facts of this case. The record demonstrates that neither Weaver nor a member of her campaign staff "committed" a violation or "placed" an ad without the appropriate disclosure. Instead, Weaver ordered an ad that was to include the "paid for by" language. Notably, the publication was the party that did not include the necessary and requested language. The magazine's failure is not Weaver's failure. It would be irrational to expect a candidate to don a printer's apron and supervise production of a magazine to avoid running afoul of our ethics statutes.

In short, Weaver did not "place" an ad that violated Arkansas Code Annotated section 7-6-228(c)(1), and substantial evidence does not support the Commission's decision. Because we reverse the Commission's ruling that Weaver violated section 7-6-228(c)(1), we decline to consider her alternative argument that the Commission's procedures are unconstitutional. We therefore vacate the Commission's order as to Weaver's constitutional arguments and dismiss her cross-appeal. It is our duty to refrain from addressing constitutional issues if or when the case can be disposed of without determining constitutional questions. Tollett v. Wilson , 2020 Ark. 326, 608 S.W.3d 602.

Commission's decision reversed in part, vacated in part.

Circuit Court's order affirmed on direct appeal; cross-appeal dismissed.

Special Justice Leon Holmes con...