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Saturday, April 12, 2014

Judge Wendell Griffen: Angela Byrd's law-license suspension violated her due process rights

Posted By on Sat, Apr 12, 2014 at 9:52 AM

Here's the written ruling
click to enlarge GRIFFEN: Law license suspension "cannot be validly imposed without procedural due process."
  • GRIFFEN: Law license suspension "cannot be validly imposed without procedural due process."
from Pulaski County Circuit Judge Wendell Griffen finding that it's unconstitutional to automatically suspend the law license of an attorney (in the case for non-payment of dues) without giving a chance for the attorney to contest the suspension. Griffen declared the automatic suspensions unconstitutional on Wednesday and released his 18-page ruling yesterday. 

The case before Griffen involved a challenge to the candidacy of Angela Byrd for a 20th Judicial Circuit seat. The Arkansas Constitution requires judicial candidates to have been licensed attorneys in the state for six consecutive years prior to taking the seat (eight for Supreme Court judges)  — the plaintiffs argued that Byrd's candidacy should be disqualified a brief lapse in her license because she was late in paying her bar fees. 

Byrd challenged the legality of the rule that had led to her suspension. Griffen found that her suspension was invalid because she was never given the opportunity to challenge it, violating her due process rights. 

Here's the key finding from Griffen: 

The license to practice law in the state of Arkansas is a privilege that vests one who holds it with a property right protected by the due process provisions of the Arkansas and U.S. Constitutions. As such, suspension of an attorney's privilege to engage in the practice of law pursuant to her license involves state action that affects important interests of the licensee in pursuing a livelihood, and cannot be validly imposed without procedural due process. ...

Automatic suspension of privileges conferred by a state-issued license to engage in the practice of law for delinquent payment of a license fee, without advance notice to a licensee and without affording a licensee a pre-suspension opportunity to be heard before the suspension becomes effective, is a facial violation of the Arkansas and federal constitutional guarantees of procedural due process.  

Griffen invalidated the rule that automatically suspended Byrd — therefore finding that Byrd's license to practice law has not been suspended and she has in fact been a licensed attorney for six years, making her a legally qualified candidate to run. 

Griffen will hear a similar challenge against Judge H.G. Foster, who has had four suspensions for failure to pay bar fees in the last six years.  Presumably he will invalidate the suspensions against Foster and uphold his candidacy for a different 20th Circuit seat. 

The suits against Byrd and Foster were inspired by the recent disqualification of the candidacy of Valerie Thompson Bailey, who planned to challenge Judge Tim Fox for a 6th Judicial Circuit Seat. Bailey's license had been suspended for failing to complete a required annual legal education course. That Bailey's suspension was of an administrative nature, rather than for misconduct, didn't matter, presiding Judge John Cole said. "A suspension is a suspension is a suspension," he said from the bench.

A similar lawsuit has been filed against Fox himself for a past failure to pay bar fees. Specially appointed Judge Sam Bird will hear the case next week and is not bound by Griffen's ruling. 

Both Foster and Attorney General Dustin McDaniel have asked the state Supreme Court to settle this kerfuffle once and for all (there are plenty more potential lawsuits floating out there). Complicating matters, two* Supreme Court judges have had suspensions themselves (or not, if Griffen's ruling stands!) for failure to pay bar dues within the time frame that would have disqualified their candidacies for the Supreme Court under the theory pushed by plaintiffs challenging Byrd, Foster and Fox (all seven Supreme Court judges have had been late on fees at some point in the past). 

*A previous version of this post reported that three Supreme Court judges have had administrative suspensions themselves that might affect their eligibility to hold office. The original post on the eligibility question of Supreme Court justices has been updated to remove Chief Justice Jim Hannah from among the justices who might be ineligible to assume office depending on how Amendment 80 of the Arkansas Constitution is interpreted. Voters approved Amendment 80 in 2000, but it didn't go into effect until July 2001. Hannah took office in January 2001, so Amendment 80's requirements wouldn't affect his eligibility regardless of how it's interpreted.

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