Kelly v. Martin

• Decision Date: 14 May 2014
• Docket Number: No. CV–14–367.,CV–14–367.
• Citation: 2014 Ark. 217,433 S.W.3d 896
• Parties: John K. KELLY, 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 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.
• Court: Arkansas Supreme Court

2014 Ark. 217

433 S.W.3d 896

John K. KELLY, 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 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.

No. CV–14–367.

Supreme Court of Arkansas.

May 14, 2014.

Samuel A. Perroni, Little Rock, 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, Little Rock, for appellee/third-party appellant Timothy Davis Fox.

Bristow & Richardson, PLLC, Jonesboro, 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.

JOSEPHINE LINKER HART, Justice.

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 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 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 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 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...