Spradlin v. Arkansas Ethics Com'n

• Decision Date: 19 July 1993
• Docket Number: No. 92-371,92-371
• Citation: 858 S.W.2d 684,314 Ark. 108
• Parties: William E. SPRADLIN and Republican Party of Arkansas, Appellants. v. ARKANSAS ETHICS COMMISSION, Richard L. Mays, Mary Lynn Reese, Ronald A. May, Kemal Kutait and Mack R. Koonce, in their Official Capacities as Members of the Arkansas Ethics Commission.
• Court: Arkansas Supreme Court

Page 684

858 S.W.2d 684

314 Ark. 108

William E. SPRADLIN and Republican Party of Arkansas, Appellants. v. ARKANSAS ETHICS COMMISSION, Richard L. Mays, Mary Lynn Reese, Ronald A. May, Kemal Kutait and Mack R Koonce, in their Official Capacities as Members of the Arkansas Ethics Commission.

No. 92-371.

Supreme Court of Arkansas.

July 19, 1993.

W. Asa Hutchinson, Fort Smith, Bob R. Brooks, Jr., No. Little Rock, for appellants.

Dinah M. Dale, Asst. Atty. Gen., Little Rock, for appellees.

MARTIN G. GILBERT, Special Chief Justice.

Appellants challenge the constitutionality of that portion of Initiated Act No. 1 of 1990 (the "Act") which created the Arkansas Ethics Commission (the "Commission") on the ground that by providing for the appointment of one of the commissioners by the Chief Justice of the Arkansas Supreme Court, the Act violates the separation of powers provision of the Constitution of Arkansas. Appellants also challenge the specific appointment made by the Chief Justice as not meeting the requirement of the Act that one of the commissioners be a "member of a minority political party."

The Act, bearing the popular name "The Standards of Conduct and Disclosure Act for Candidates and Political Campaigns," was approved by the voters of Arkansas at the general election on November 6, 1990. In general, the Act regulates political action committees, solicitations by and contributions to political candidates, the use of campaign funds and compensation of members of the General Assembly for making speeches and other appearances, and requires certain reports by candidates.

Section 6 of the Act, codified as A.C.A. § 7-6-217, provides, among other things, for the creation of the Commission, to be composed of five members, one each to be appointed by the Governor, the Attorney General, the Chief Justice of the Supreme Court, the Speaker of the House of Representatives and the President Pro Tem of the Senate. Commission members serve staggered five-year terms without compensation, but they are reimbursed for their actual and reasonable expenses.

The Act requires that "[i]n making appointments to the commission, the appointing officers shall insure that at least one member of a minority race, one woman, and one member of a minority political party, as defined in [A.C.A. s] 7-1-101(7), serves on the commission." A.C.A. § 7-6-217(b).

In due course, the designated officials made their respective appointments to the Commission. Supreme Court Chief Justice Jack Holt, Jr., appointed Little Rock attorney Ronald A. May, identifying him as a member of a minority political party. It is not contended that any of the other appointees are members of a minority political party.

Appellants filed this action in the Circuit Court of Pulaski County, challenging the constitutionality of the method of appointing the members of the Commission and also challenging the appointment of Mr. May as a member of a minority political party. The Circuit Court granted summary judgment in favor of appellees, dismissing appellants' complaint. This appeal followed.

Jurisdiction is properly in this Court under Rule 1-2(a)(1) of the Rules of the Supreme Court and the Court of Appeals, because it involves the interpretation or construction of the Constitution of Arkansas.

Article 4 of the Constitution of Arkansas provides for three departments of government:

§ 1. Departments of government.

The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.

Article 4 also provides for the separation of those departments:

§ 2. Separation of departments.

No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

In Oates v. Rogers, 201 Ark. 335, 144 S.W.2d 457 (1940), this court dealt with the question whether an act designating the judges of the chancery, circuit and county courts to select the county tax collector violated the constitutionally mandated separation of powers. Speaking through Chief Justice Griffin Smith, we noted the two opposing philosophies regarding the federal separation of powers expressed by Mr. Justice Sutherland (speaking for the majority) and Mr. Justice Holmes (dissenting for himself and Mr. Justice Brandeis) in Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928). Mr. Justice Sutherland espoused the more strict view, namely, that the separation of the departments of government "is basic and vital--not merely a matter of governmental mechanism" and should be vigorously protected. Mr. Justice Holmes, representing the more liberal view, believed that the United States Constitution did not "establish and divide fields of black and white," but "a penumbra shading gradually from one extreme to the other," concluding that it was not necessary to carry out the separation of powers with "mathematical precision and divide the branches into watertight compartments." We observed that it was impossible to harmonize the extreme views expressed by these eminent justices. Oates v. Rogers, 201 Ark. at 338-39, 144 S.W.2d at 457.

After reviewing various cases from Arkansas and other jurisdictions regarding the legislative designation of the power of appointment, we said:

The duties of collector are in no sense related to the administration of justice; and, while certain activities not essentially judicial may be imposed upon judges in those cases where by the constitution such duties do not inhere in another department of the government, in the instant case the delegated authority is of that class set aside to the executive department.

In most instances judges are--and in all cases they should be--free from political pressure and beyond the reach of partisan influence.

....

Common knowledge teaches, and experience informs us, that most people who apply for public office have the backing of influential friends, and are themselves prominently connected. Unfortunately we have not reached that ideal state where friend interested in friend will circumscribe his or her activity merely because the appointive power is judicial.

Judges should not be subject to these experiences. Our system, providing as it does for distinct separation of departments, did not in its inception contemplate a blending of authority; and overlapping must not be permitted now at the command of expediency or in response to the nod of convenience.

....

... [S]ince the nature of the act of appointment is essentially non-judicial, and therefore not to be exercised by circuit and chancery judges ... it must be held that the ... act fails. Oates v. Rogers, 201 Ark. at 345, 144 S.W.2d at 458.

While there is sparce judicial precedent on the subject, it appears to be generally concluded that in the absence of specific constitutional authority, the legislature may not authorize or require courts to appoint officers who have nothing to do with the administration of justice. 16 Am.Jur.2d, Constitutional Law § 313; 16 C.J.S., Constitutional Law § 212.

Appellees concede that the judiciary may not be delegated the power to appoint unless the object of that power is related to the administration of justice. Appellees argue, however, that such a relationship exists here because the primary function of the Commission is "quasi-judicial" in nature.

The Act provides that the Commission shall have the authority to issue advisory opinions and guidelines, investigate alleged violations and render findings and disciplinary action thereon, subpoena persons and documents, administer oaths, conduct hearings and take sworn testimony, hire a staff and legal counsel and approve forms prepared by the Secretary of State pursuant to the Act. These are powers of the sort often possessed by boards, commissions and agencies, and we have held on many occasions that a body having such powers is not thereby judicial in nature or a part of the judicial department of government. See Ozarks Electric Cooperative Corporation v. Turner, 277 Ark. 209, 640 S.W.2d 438 (1982); Ward School Bus Manufacturing, Inc. v. Fowler, 261 Ark. 100, 547 S.W.2d 394 (1977); and cases cited therein. While at times there may be difficulty in discerning whether particular boards, commissions or other agencies are a part of the legislative department or the executive department--or perhaps belong to some de facto fourth department of government--there can be no doubt that they are not a part of this, the judicial department. See Stafford, "Separation of Powers and Arkansas Administrative Agencies: Distinguishing Judicial Power and Legislative Power," 7 UALR L.J. 279 at 280-81 (1984).

Appellees go to great length to establish that the powers exercised by the Commission are "quasi-judicial" in nature. But we have not been cited to and we are not aware of any case holding that a body which exercises quasi-judicial functions is thereby a part of the judicial department or related to the administration of justice. We have noted previously that an important factor in determining whether a particular body is acting in a judicial capacity or is part of the judicial department of government is the ability of that body to enforce its own orders. Ward School Bus Manufacturing, Inc. v. Fowler, 261 Ark. 100, 547 S.W.2d 394 (1977). Here, the Commission sought to be established by the Act would be authorized to investigate alleged violations and to "render findings and disciplinary action thereon." A.C.A. § 7-6-217(h)(2). At first blush that might seem to be akin to some sort of judicial action--rendering findings, perhaps after a hearing at which witnesses are subpoenaed and sworn, and taking some sort of disciplinary action. But a closer...