Bailey v. Martin

• Decision Date: 14 May 2014
• Docket Number: No. CV–14–358.,CV–14–358.
• Parties: Valerie BAILEY, Appellant v. Mark MARTIN, In his Official Capacity as the Secretary of State for the State of 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 Kristen Hulse, Appellees.
• Court: Arkansas Supreme Court

2014 Ark. 213

433 S.W.3d 904

Valerie BAILEY, Appellant

v.Mark MARTIN, In his Official Capacity as the Secretary of State for the State of 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 Kristen Hulse, Appellees.

No. CV–14–358.

Supreme Court of Arkansas.

May 14, 2014.

Nicki Nicolo and Valerie Bailey, 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.

James, Carter & Coulter, PLC, Little Rock, by: Jeff R. Priebe; and Allred Law Firm, by: Allison Allred, for appellee Kristen Hulse.

DONALD L. CORBIN, Justice.

Appellant Valerie Bailey brings the instant appeal from an order of the Pulaski County Circuit Court, Special Judge John Cole presiding, granting a declaratory judgment and issuing a writ of mandamus in favor of Appellee Kristen Hulse on the basis that Bailey was not a qualified or eligible candidate for the office of circuit judge pursuant to section 16 of amendment 80 to the Arkansas Constitution. On appeal, Bailey argues that (1) a writ of mandamus was inapplicable and Hulse's petition should have been dismissed; (2) no rule provides that an administrative suspension of an attorney's right to practice law constitutes revocation or termination of a license for purposes of amendment 80; (3) payment of her delinquent license fees and CLE fees had the effect of reinstating her license; (4) the circuit court erred in its interpretation of amendment 80; and (5) the process of automatic suspension pursuant to Rule VII(C) of the Rules Governing Admission to the Bar violates Bailey's rights to due process and, thus, the circuit court should have granted her motion for reconsideration.

In her brief to this court, Appellee Hulse counters that the circuit court's order was proper and should be affirmed because (1) Bailey was not qualified to be a candidate for circuit judge; (2) the arguments presented by Bailey have been waived, are untimely, and are now moot because the ballots for the May 20, 2014 election have already been printed, mailed to absentee voters, and early voting has commenced; (3) Bailey failed to present and request a ruling on any constitutional arguments and, as such, those arguments are not properly before this court.

Appellees, the Perry County Election Commission and the Pulaski County Election Commission, as well as Appellee Secretary of State Mark Martin, take no position on Bailey's qualifications to assume the office of circuit judge but respond that Bailey's appeal is untimely because there is no relief available to Bailey, whose name was removed from the ballot.

This court has jurisdiction of the instant appeal pursuant to Arkansas Supreme Court Rule 1–2(a)(4) (2013), as it involves issues pertaining to elections and election procedures. We dismiss Bailey's appeal.

On March 3, 2014, Bailey filed as a candidate for the position of circuit judge, District 06, Division 06, Subdistrict 6.2, which covers parts of Pulaski and Perry Counties. The other candidate for this position is the current holder of the office, Circuit Judge Tim Fox. The person elected to this position will assume office on or about January 1, 2015.

Hulse, a registered voter in Pulaski County, filed a petition for writ of mandamus and a declaratory judgment on March 10, 2014. Therein, she alleged, inter alia, that Bailey was not qualified to hold the office of circuit judge because her license to practice law had been suspended “for the majority of the period of time between November 2002 and December 1, 2011.” Thus, according to Hulse, during the periods of time that Bailey's license was suspended, she was not a licensed attorney; rather, she was a former attorney pursuant to section 22(A) of the Procedures of the Arkansas Supreme Court Regulating the Professional Conduct of Attorneys at Law. Hulse requested a declaratory judgmentthat Bailey was not qualified and was ineligible to be a candidate for circuit court judge. She further requested that the circuit court issue a writ of mandamus to Appellees Martin and the Commissioners of the Pulaski County and Perry County Election Commissions ordering that they not include Bailey on any ballot as a candidate for the position of circuit judge or, alternatively, that if she appears on the ballot, that no votes cast for her be counted.

Bailey filed an answer, admitting that her license had been administratively suspended for a period of time because of CLE noncompliance and because of failure to timely pay her annual license fee. Bailey denied that her administrative suspensions rendered her not qualified for the office of circuit judge. She argued that at all relevant times she remained a licensed attorney, and the suspensions were merely a limitation on her ability to practice law. In other words, Bailey asserted that the administrative suspension did not result in the loss of her license for purposes of section 16(B) of amendment 80.

The circuit court held a hearing on March 19, 2014. Denise Parks, office manager for the Arkansas Supreme Court Clerk's office, testified that she has been the keeper of the records related to licensed attorneys for twenty-eight or twenty-nine years. Parks testified that the annual license fee is due every year between January 1 and March 1. When asked what happens if an attorney fails to pay his or her annual fee by March 1, Parks stated that the attorney is “suspended for nonpayment of dues.” Parks further explained that after March 1, an attorney may pay his or her annual fee, plus a $100 penalty, if the delinquency is for less than three years. Parks further opined that when a lawyer is suspended for such nonpayment he or she is not to practice law. According to Parks, an attorney who is suspended for nonpayment may not practice law or take action in the Supreme Court Clerk's office.

With regard to Bailey's payment history, Parks testified that the Clerk's office showed that Bailey had failed to pay her dues and was suspended on March 2, 2002, through November 14, 2002, when she paid her fee and penalty. She was again suspended on March 2, 2004, and did not pay her annual fee or penalty until October 27, 2011, when she paid $2,240 for her annual fees for those years, as well as the applicable penalties.

Hulse called no other witnesses. Bailey then moved for a directed verdict, arguing that Hulse failed to prove that Bailey was an unqualified and ineligible candidate for circuit judge. She further stated that the sole question was whether she had lost her license for CLE noncompliance and failure to pay bar dues and that the evidence demonstrated that “[s]he was reinstated. She always had a law license.” Bailey thus argued that a writ of mandamus was not warranted, as there was no clearly established, undisputed legal right to demonstrate that mandamus should issue.

The circuit court denied Bailey's motion for a directed verdict. Bailey then called Nancie Givens, director of the Office of Professional Programs, to testify. Givens testified that a CLE suspension is a suspension of a person's right to practice law. She further stated that it is an administrative suspension, as opposed to a disciplinary suspension. On cross-examination, Givens stated that when a CLE suspension is imposed on an attorney, that attorney may not practice law because his or her license is suspended from doing so. According to Givens, a suspension for nonpayment of the license fee has the same effect. Givens further testified that a suspension by the CLE Board and a suspensionfor nonpayment of the annual license fee both have the same effect as a suspension from the Office of Professional Conduct.

At the conclusion of the hearing, the circuit court took the matter under advisement. Shortly thereafter, the circuit court returned to the bench and announced its ruling, stating in relevant part, as follows:

This is a simple, yet fairly complicated case, in thinking through all of the issues that are involved. It is going to have some policy effects regarding the licensure of attorneys, qualifications to run for office in the State of Arkansas. But I know, and I think everyone in this room, especially those of you who are licensed to practice law know, that the quintessential, and I suppose the only, franchise that is granted by a license to practice law is the right to practice law. And a suspension is a suspension is a suspension; it doesn't matter whether it's administrative or whether it's disciplinary. Once a person's right to practice law is suspended, that is tantamount to suspending their license. And for the purposes of the 80 Amendment to the Constitution which required lawyers to be licensed in the State of Arkansas for six consecutive years prior to taking office was adopted, I believe it meant just what it said. And I think that it is essential for a license under that constitutional provision to carry with it the right to practice law. I don't think you have a license if you don't have the right to practice law.

The circuit court then announced that it was granting the writ of mandamus and declaring that Bailey was not eligible to seek the office of circuit judge. Upon this announcement, Bailey requested a stay of the writ, pending appeal. The circuit court orally denied the request for the stay. A written order reflecting the rulings of the circuit court was entered that same day, March 19, 2014.

On April 2, 2014, Bailey filed a motion for new trial and reconsideration. She argued therein...