Chandler v. Martin , 433 S.W.3d 884 ( 2014 )

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SUPREME COURT OF ARKANSAS
No. CV-14-369
DORALEE CHANDLER, CANDIDATE Opinion Delivered May 14, 2014
FOR CIRCUIT JUDGE, DISTRICT 20,
DIVISION 5 APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT, FIFTH
DIVISION
V. [NO. 60cv-14-1285]
HONORABLE WENDELL GRIFFEN,
MARK MARTIN, IN HIS OFFICIAL JUDGE
CAPACITY AS THE SECRETARY OF
STATE FOR THE STATE OF AFFIRMED.
ARKANSAS; JAMES BARGAR, PAUL
FOSTER, AND BETTY PICKETT, IN
THEIR OFFICIAL CAPACITIES AS
COMMISSIONERS OF THE
FAULKNER COUNTY ELECTION
COMMISSION; L.C. RATCHFORD,
DOYLE RAGLAND, AND G.C. BLAIR,
IN THEIR OFFICIAL CAPACITIES AS
THE COMMISSIONERS OF THE
SEARCY COUNTY ELECTION
COMMISSION; STEPHEN JAMES, JIM
KIRKENDOLL, AND BOB
PATTERSON, IN THEIR OFFICIAL
CAPACITIES AS THE
COMMISSIONERS OF THE VAN
BUREN COUNTY ELECTION
COMMISSION; AND HARRY G.
FOSTER II
APPELLEES
LESLIE STEEN, IN HIS OFFICIAL
CAPACITY AS CLERK OF THE
SUPREME COURT OF ARKANSAS
AND ARKANSAS COURT OF
APPEALS
THIRD-PARTY APPELLANT
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V.
HARRY G. FOSTER II
THIRD-PARTY APPELLEE
CLIFF HOOFMAN, Associate Justice
Appellant Doralee Chandler and third-party appellant Leslie Steen, in his official
capacity as Clerk of the Supreme Court of Arkansas and Arkansas Court of Appeals,
(collectively “appellants”) appeal from a Pulaski County Circuit Court’s order, denying
Chandler’s petition for writ of mandamus and declaratory judgment and granting the third-
party complaint filed by appellee the Honorable Harrison (Harry) G. Foster II (“Foster”).
This court has jurisdiction of this appeal under Arkansas Supreme Court Rule 1-2(a)(4), as
this appeal pertains to elections and election procedures. On appeal, Chandler contends that
(1) the circuit court improperly determined that Foster was not “unlicensed” pursuant to Rule
VII(C) of the Rules Governing Admission to the Bar (“Rule VII(C)” or “the Rule”), thereby
improperly finding that he is qualified to seek the position of circuit judge despite his failure
to timely pay his licensing fee four of the six consecutive years prior to the time for taking
office, if elected; and (2) the circuit court improperly determined that Foster’s suspension of
his license to practice law due to his failure to timely renew his fee was a violation of his due-
process rights. Steen also contends on appeal that the trial court erred in declaring Rule
VII(C) unconstitutional and should be reversed. We affirm the circuit court.
This case arose after Doralee Chandler, a registered voter residing in Judicial District
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20 and a candidate for Judicial District 20, Circuit Court Division 5, filed a petition for
issuance of a writ of mandamus and for declaratory judgment against Mark Martin, in his
official capacity as the Secretary of State for the State of Arkansas; James Bargar, Paul Foster,
and Betty Pickett, in their official capacities as the Commissioners of the Faulkner County
Election Commission; LC Ratchford, Doyle Ragland, G.C. Blair, in their official capacities
as the Commissioners of the Searcy County Election Commission; Stephen James, Jim
Kirkendoll, and Bob Patterson, in their official capacities as the Commissioners of the Van
Buren County Election Commission; and Foster. Subsequently, Chandler filed an amended
petition for issuance of a writ of mandamus and for declaratory judgment. In this petition,
she alleged that Foster’s license as an attorney in the State of Arkansas was suspended pursuant
to Rule VII(C) for 77 days in 2013, from March 2 through May 17; for 64 days in 2012, from
March 2 through May 4; for 64 days in 2011, from March 2 through May 4; and for 11 days
in 2009, from March 2 through March 11. Therefore, she alleged that Foster was not a
qualified or eligible candidate for the circuit judge position as he was not a “licensed attorney”
for the constitutionally mandated six-year time period preceding the assumption of the office.
As such, she prayed that the circuit court issue a declaratory judgment that Foster was
unqualified and an ineligible candidate for the circuit judge position; that the circuit court
issue a writ of mandamus to Martin to order him to strike and/or remove Foster from the list
of ballot-eligible candidates; and that the circuit court issue a writ of mandamus to the
Commissioners of the Faulkner, Searcy, and Van Buren County Boards of Election
Commissioners to order them not to tabulate any votes for Foster.
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Martin, Foster, and Faulkner County Election Commissioners James Bargar, Paul
Foster, and Betty Pickett, in their official capacities, filed responses. Additionally, Foster filed
a third-party complaint. In his complaint, he alleged that Rule VII(C) was unconstitutional
under Article II of the Arkansas Constitution and the Due Process Clause of the Fourteenth
Amendment to the Constitution of the United States, because the Rule automatically
suspended his license without procedural due process. Furthermore, he alleged that the letter
sent by Steen prior to any suspension mentioned delinquent fees as the only consequence for
failing to pay license fees by March 1. Thus, Foster prayed for the circuit court to deny
Chandler’s petition, grant his complaint, declare Rule VII(C) unconstitutional, enjoin Steen
from enforcing the automatic suspension of delinquent lawyers from the practice of law, and
award him attorney’s fees and costs against Chandler only.
At the hearing, Steen testified that his duties included licensing all lawyers, keeping a
list of all lawyers, and collecting license fees. He testified that license fees were due by March
1st of every year, unless that date fell on a weekend, and that delinquency therefore attached
on the next day. A form letter is sent out to all licensed attorneys in December, informing
lawyers of the due dates for fees. This letter in the past has not included any warning that an
attorney’s license is automatically suspended if fees are not paid on time. After an attorney’s
license has been automatically suspended for delinquent fees, Steen testified that his office
sends a form letter informing a delinquent attorney that the Rule automatically suspended the
lawyer from the practice of law and includes the following additional paragraph:
Our records show that you are delinquent in paying your annual license fee, however
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there is certainly the possibility this office made a mistake in posting or receipting your
dues. If you think we are in error, please contact us. Otherwise, please remit a check
in the amount of $300.00 to insure your good standing.
Furthermore, Steen testified,
[ROSENZWEIG:] Okay. And there is no provision for a hearing before this letter
goes out?
[STEEN:] That’s correct.
[ROSENZWEIG:] So, for instance, let’s say that someone had -- hypothetically
speaking, someone had mailed a check in and it somehow didn’t
get there but there’s evidence of mailing, for instance, or
FedExing, whatever. That person would not necessarily have an
opportunity to say, “Hey, I mailed it” or “you got it” before you
-- before the letter goes out?
[STEEN:] No. If there’s evidence that somebody has mailed something
timely --
[ROSENZWEIG:] Yes.
[STEEN:] -- as long as the letter is postmarked by March the 1st --
[ROSENZWEIG:] Yes.
[STEEN:] -- or over, I will waive the delinquent fee in that regard.
[ROSENZWEIG:] And I understand that. No. My question isn’t whether they
owe the delinquent fee or not. My question is let’s say a person
mails it on February 28th or 27th or FedExes it, but it never gets
to you. I mean it just never gets to you and that person doesn’t
find out that it never got to you before you send the letter out.
There’s no -- there’s no provision for a hearing in front of a
court?
[STEEN:] There is not, no.
A running list of suspended lawyers is kept on the computer, and Steen testified that
approximately 700 to 900 attorneys fail to pay their fees on time each year, which is
approximately 8 to 10 percent of all licensed attorneys. Subsequently, Steen testified that, in
May of each year, a list of suspended lawyers at that time is sent to all the judges in the state.
Foster also testified at the hearing. He did not contest the dates alleged in which he
failed to pay his license fees on time. After the circuit court heard all motions and oral
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arguments made by the parties, the circuit court announced its ruling, and a written order was
filed on April 16, 2014. In a very detailed sixteen-page order, the circuit court found the
following in relevant part:
8. Foster has been delinquent in paying the annual fee for his attorney’s license,
which is due no later than March 1 of each year. He paid the annual fee, plus a $100
late penalty, on the following occasions: March 7, 2007; March 6, 2008; March 12,
2009; May 4, 2011; May 4, 2012; and May 17, 2013.
9. Pursuant to Rule VII(C) of the Rules Governing Admission to the Bar,
Foster’s privilege to practice law pursuant to his law license was automatically
suspended for non-payment of the annual license fee, without prior notice to him, for
the following dates: between March 2 and March 7, 2007; March 2 and March 6,
2008; March 2 and March 12, 2009; March 2 and May 4, 2011; March 2 and May 4,
2012; and March 2 and May 17, 2013.
10. Foster’s privilege to practice law pursuant to his law license was
automatically reinstated after he paid his license fee and the required $100 late penalty
in each instance previously mentioned.
11. Foster was not notified that his privilege to engage in the practice of law
pursuant to his license was suspended in any instance before the automatic suspension
mandated by Rule VII(C) went into effect.
Conclusions of Law
1. Amendment 80, Section 16(B) to the Constitution of Arkansas states the
qualifications and term of office for Circuit Judges as follows: “Circuit Judges shall
have been licensed attorneys of this state for at least six years immediately preceding
the date of assuming office.”
2. Foster has been a licensed attorney of the state of Arkansas since 1978, and
for at least six years immediately before he filed his candidacy for Circuit Judge,
Twentieth Judicial District, Division 5. No evidence indicates that he has been an
unlicensed lawyer at any time since he was admitted to the Arkansas Bar in 1978.
3. Rule VII(C) of the Rules Governing Admission to the Bar, which states that
“[f]ailure to pay the annual license fee . . . shall automatically suspend the delinquent
lawyer from the practice of law in Arkansas,” does not operate to de-license an
attorney licensed by the Arkansas Supreme Court. As such, the automatic suspension
mandated by Rule VII(C) during the period that Foster was delinquent in paying his
annual license fee did not disqualify him from seeking or holding office as a Circuit
Judge for the purposes of compliance with Amendment 80, Section 16(B) to the
Constitution of Arkansas. Chandler’s petition for writ of mandamus and declaratory
judgment is DENIED.
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4. Automatic suspension of Foster’s ability to practice law pursuant to his law
license during the periods that he was delinquent in pay the annual license fee, without
advance notice and without affording him any pre-suspension opportunity to be heard
before the suspension took effect, denied Foster due process of law in violation of the
Fourteenth Amendment to the U.S. Constitution. Foster’s third-party complaint to
declare Rule VII(C) of the Rules Governing Admission to the Bar unconstitutional
and unenforceable is GRANTED.
....
7. 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 his license involves state action that affects
important interests of the licensee in pursuing a livelihood, and cannot be validly
imposed without procedural due process.
....
For the foregoing reasons, Chandler’s petition for writ of mandamus and for
declaratory judgment is DENIED. Foster’s third-party complaint to declare Rule
VII(C) unconstitutional, unenforceable, and enjoined is GRANTED.
Steen and Chandler filed notices of appeal. This case was expedited with the parties filing
simultaneous briefs.
Appellant Chandler contends that the circuit court erred in determining that Foster was
not “unlicensed” pursuant to Rule VII and in improperly finding that he is qualified to seek
the position of circuit judge despite his failure to timely pay his licensing fee for four of the
six consecutive years prior to the time for taking office, if elected. Chandler specifically
contends that Foster is an ineligible candidate under amendment 80, section 16(B) of the
Arkansas Constitution (“amendment 80”), because his license was automatically suspended
pursuant to Rule VII(C). Foster and the Faulkner County Election Commission disagree.
Martin filed a brief in response, but he only explained that the Secretary of State and the
County Board of Election Commission are ministerial entities and do not have the power to
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exercise any discretion concerning the eligibility of a candidate. They followed the circuit
court’s order and included Foster’s name on the ballot as a candidate. Because the ballots have
already been printed and many absentee voters have already marked and returned their ballots
with early voting having started on May 5, 2014, appellants’ available remedy is limited under
these circumstances, and they request that the circuit court’s decision be upheld.
This court reviews a circuit court’s interpretation of the constitution de novo because
it is for this court to determine what a constitutional provision means. Arnold v. State, 2011
Ark. 395, 384 S.W.3d 488; Stromwall v. Van Hoose, 371 Ark. 267, 272, 265 S.W.3d 93, 98
(2007). Furthermore, this court construes a rule using the same means and canons of
construction used to interpret statutes. McNabb v. State, 367 Ark. 93, 238 S.W.3d 119 (2006).
Issues of statutory interpretation are reviewed de novo, and this court is not bound by the
circuit court’s determination. Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179. However,
this court will accept a circuit court’s interpretation of the law unless it is shown that the
court’s interpretation was in error. Cockrell v. Union Planters Bank, 359 Ark. 8, 194 S.W.3d
178 (2004). The basic rule of statutory construction is to give effect to the intent of the
legislature. Calaway v. Practice Mgmt. Servs., Inc., 2010 Ark. 432. Where the language of a
statute is plain and unambiguous, this court determines legislative intent from the ordinary
meaning of the language used. Id. In considering the meaning of a statute, this court
construes it just as it reads, giving the words their ordinary and usually accepted meaning in
common language. Id. This court construes the statute so that no word is left void,
superfluous, or insignificant, and this court gives meaning and effect to every word in the
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statute, if possible. Id. If the language of a statute is clear and unambiguous and conveys a
clear and definite meaning, it is unnecessary to resort to the rules of statutory interpretation.
Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (2009). However, this court will not give
statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative
intent. Brock, supra.
Chandler maintains that the circuit court ignored the strict language of Rule VII and
amendment 80. Amendment 80, section 16(B) of the Arkansas Constitution provides,
“Circuit Judges shall have been licensed attorneys of this state for at least six years immediately
preceding the date of assuming office. They shall serve six-year terms.” Furthermore, Rule
VII(C) states that a “[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.”
We addressed this same issue in Kelly v. Martin, 2014 Ark. ___, which is being handed
down this same date. In Kelly, John K. Kelly challenged the Honorable Timothy Davis Fox’s
eligibility to be a candidate under amendment 80 for a judicial race because Fox’s license to
practice law was automatically suspended because Fox failed to timely pay his 2013 license fees
pursuant to Rule VII(C). We held that under amendment 80 Fox was a “licensed attorney[]
of this state for at least six years immediately preceding the date” he would assume office
because he nevertheless remained a licensed attorney during the period of his suspension and
his license was not terminated. Id. In the present case, we also hold that Foster was a licensed
attorney during his suspension as required by amendment 80, for the same reasons in Kelly.
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As such, we affirm the circuit court’s denial of Chandler’s petition for writ of mandamus and
declaratory judgment.
Next, appellants Chandler and Steen both contend that the circuit court improperly
determined that Foster’s automatic suspension of his license to practice law due to his failure
to timely pay his license fee pursuant to Rule VII(C) was a violation of his due process.
Chandler argues that a law license is a privilege that Foster voluntarily gave up when he failed
to pay his annual fee and that he was, therefore, not entitled to due process. Steen argues that
the Rule is constitutional because this court stated in In re Lewis that “[a] member of the Bar
is charged with the knowledge that failure to pay the Supreme Court license fee will result
in his suspension.” 308 Ark. 610, 611, 826 S.W.2d 264, 264 (1992). Furthermore, he argues
in his brief that his office sends a letter to delinquent attorneys before a list is sent to judges
in the state and that “the balancing act between any embarrassment felt by the delinquent
lawyer versus the interest of this Court in its superintending powers governing the Bar of this
State weighs heavily in favor of the validity and constitutionality of this Rule.” Foster and
the Faulkner County Election Commission disagree.
Due process requires at a minimum that a person be given notice and a reasonable
opportunity for a hearing before he or she is deprived of property by state action. State of
Wash. v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999). In that regard, the concept of due
process requires neither an inflexible procedure universally applicable to every situation nor
a technical concept with a fixed content unrelated to time, place, and circumstance. Id.
Instead, what process must be afforded is determined by context, dependent upon the nature
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of the matter or interest involved. Id.
The United State Supreme Court has recognized that “the requirements of procedural
due process must be met before a State can exclude a person from practicing law.” Willner
v. Comm. on Character and Fitness, 373 U.S. 96, 102 (1963). Furthermore, in Arnold v. Kemp,
306 Ark. 294, 813 S.W.2d 770 (1991), this court cited with approval to the Kansas Supreme
Court.
Attorneys are licensed by the state to practice their profession; but so are other
professionals, such as architects, engineers, and physicians. One who practices his
profession has a property interest in that pursuit which may not be taken from him or
her at the whim of the government without due process.
Arnold, 306 Ark. at 301, 813 S.W.2d at 774 (quoting State ex rel. Stephan v. Smith, 747 P.2d
816 (1987)). This court has recognized that the practice of law is a privilege and not a right,
but one cannot summarily restrict a lawyer’s ability to exercise the privilege. Donovan v. Sup.
Ct. Comm. on Prof’l Conduct, 375 Ark. 350, 290 S.W.3d 599 (2009). Nevertheless, it is well
settled that any protections to a law license are “subject to the very lowest of review under
the Due Process and Equal Protections Clauses to the Constitution.” Cambiano v. Neal, 342
Ark. 691, 703, 35 S.W.3d 792, 799 (2000).
In this case, under the plain language of the Rule as interpreted above, no due process
is afforded prior to a lawyer’s license being suspended. The Rule states 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.” Although Steen cites to this court’s
statement in In re Lewis that “[a] member of the Bar is charged with the knowledge that failure
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to pay the Supreme Court license fee will result in his suspension,” the Rule does not provide
a delinquent lawyer notice that he or she is in violation of the Rule before the automatic
suspension. See In re Lewis, supra. In other words, a lawyer may know of the Rule but may
not be aware, until it is too late, that his or her fee did not reach the clerk’s office.
Additionally, we do not find any merit to Chandler’s argument that a delinquent lawyer
voluntarily gave up his or her license. Under the Rule, a lawyer’s fee could theoretically get
lost in the mail or even be miscredited by the clerk’s office, and a lawyer would have no
notice or any opportunity to have the mistake corrected prior to the suspension, even though
the mistake was made through no fault of the attorney’s own and clearly was not the product
of his or her wish to “voluntarily give up” the license. Therefore, we find that Rule VII(C)
is unconstitutional to the extent that it provides for an automatic suspension of a lawyer’s
license without procedural due process, and we affirm the circuit court’s ruling on this issue.1
1
The dissent by Justice Corbin raises three arguments in concluding that the majority
errs in holding that Rule VII(C) is unconstitutional to the extent that it provides for an
automatic suspension of a lawyer’s license without procedural due process. First, the dissent
sua sponte argues that Foster lacks standing. However, this issue was not raised below nor on
appeal, and we have repeatedly held that standing is not a question of subject-matter
jurisdiction. Chubb Lloyds Ins. Co. v. Miller Cnty. Cir. Ct., 2010 Ark. 119, 361 S.W.3d 809;
Foremost Ins. Co. v. Miller Cnty. Cir. Ct., 2010 Ark. 116, 361 S.W.3d 805; Muccio v. Hunt,
2014 Ark. 35. Furthermore, even if the parties had raised this argument to the circuit court,
any “[a]rguments made below but not argued on appeal are deemed to be abandoned.” Vibo
Corp. v. State ex rel. McDaniel, 2011 Ark. 124, 380 S.W.3d 411. Second, the dissent sua
sponte argues that we should have considered whether “Foster’s right to run for or hold
public office is a protected right or privilege” rather than “Foster’s right or privilege to
practice law.” The dissent even admits that the circuit court did not consider this issue, and
[i]t is well-settled that this court will not address an argument raised for the first time on
appeal, even a constitutional argument.” Brown v. Kelton, 2011 Ark. 93, at 8, 380 S.W.3d
361, 366. Furthermore, the third-party complaint specifically alleged that “[p]rior to having
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Affirmed.
Special Justices RAYMOND R. ABRAMSON, WOODY BASSETT, and TODD TURNER
join in this opinion.
HART, J., concurs in part and dissents in part.
CORBIN, J., dissents.
DANIELSON, BAKER, and GOODSON, JJ., not participating.
JOSEPHINE LINKER HART, Justice, concurring in part and dissenting in part.
Because I conclude that it is unnecessary to reach the issue, I respectfully dissent from the
majority’s holding that Rule VII(C) of the Rules Governing Admission to the Bar is
unconstitutional.
Judge H.G. Foster filed a third-party complaint against Leslie Steen, Clerk of the
Arkansas Supreme Court, in which Foster asserted that he has a property right to his law
license that cannot be taken from him without first affording him procedural due process. He
the privilege to practice law taken, the Plaintiff under the Arkansas Constitution Section 2 and
The Fourteenth Amendment to the United States Constitution was entitled to notice, an
opportunity to be heard, an opportunity to confront adverse witnesses and a hearing before
an impartial decision maker.” Finally, the dissent raises the argument that pre-deprivation
notice and opportunity have not always been required and that “prompt post-deprivation
review to correct administrative error can satisfy minimal due-process concerns,” citing to
Miller v. Ark. Dep’t of Fin. & Admin., 2012 Ark. 165, 401 S.W.3d 466. However, Rule
VII(C) fails to provide for either a pre- or post-deprivation opportunity for a hearing and
therefore fails to satisfy minimum due process to the extent that a lawyer’s license is
automatically suspended.
In her dissent, we also find that Justice Hart errs in finding that the due-process issue
raised in Foster’s third-party complaint is moot. However, even if the mootness doctrine did
apply under these circumstances, all of this court’s recognized exceptions to the mootness
doctrine apply here.
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further asserted that Rule VII(C), which provides that “[f]ailure to pay the annual license fee
. . .shall automatically suspend the delinquent lawyer from the practice of law in Arkansas,”
deprives him of due process because the Rule does not provide for notice and an opportunity
to be heard and confront adverse witnesses before an impartial decision maker prior to the
suspension.
We have affirmed the circuit court’s decision that Judge Foster is an eligible candidate;
thus, we need not decide the issue raised in this case. Had we concluded that Judge Foster was
no longer licensed for Amendment 80 purposes, then it would have been incumbent upon
this court to consider whether the automatic suspension deprived Judge Foster of due process.
If we had then answered that question in the affirmative, as the majority has done, then that
question would have resolved Judge Foster’s eligibility claim because Rule VII(C) would have
been declared unconstitutional and Judge Foster would have remained licensed despite the
unconstitutional, automatic suspension. However, we have held that Judge Foster is an
eligible candidate; therefore it is not necessary to consider Judge Foster’s eligibility. If an issue
can be resolved without reaching constitutional arguments, it is our duty to do so. Tornavacca
v. State, 2012 Ark. 224, at 15, 408 S.W.3d 727, 737.
The majority may be treating Judge Foster’s third-party complaint as an independent
cause of action that must be addressed, even though we hold that Judge Foster is an eligible
candidate. Here, however, the evidence indicates that Judge Foster accepted the consequences
of the suspensions from the practice of law by paying the fines and penalties. Thus, the issue
regarding the constitutionality of the rule is moot because Foster paid the annual license fee
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and the penalty. See Centr. Emergency Med. Servs., Inc. v. State, 332 Ark. 592, 966 S.W.2d 257
(1998) (dismissing an appeal from criminal contempt order as moot because the appellant paid
the fine that the circuit court had imposed).
As a general rule, the appellate courts of this state will not review issues that are moot
because to do so would be to render an advisory opinion. Deer/Mt. Judea Sch. Dist. v. Kimbrell,
2013 Ark. 393, at 22, ___ S.W.3d ___, ___. A case becomes moot when any judgment
rendered would have no practical legal effect upon a then existing legal controversy. Id., ___
S.W.3d at ___. Because Judge Foster accepted the suspensions and paid the annual license fees
and penalties, the question is moot. We have recognized two exceptions to the mootness
doctrine: that the issue is capable of repetition, yet evading review; and that the issue raises
considerations of substantial public interest which, if addressed, would prevent future
litigation. Id., ___ S.W.3d at ___. These exceptions, however, do not apply here. In the
future, an attorney who does not pay the annual license fee may litigate the automatic
suspension without paying the license fee or the penalty. In those circumstances, the issue will
be raised, and review will be appropriate.
The case should be remanded for entry of a decree stating that the grounds upon which
the circuit court relied for entering the declaratory judgment and injunction are moot. See
City of Clinton v. S. Paramedic Servs., Inc., 2012 Ark. 88, at 11-12, 387 S.W.3d 137, 142-43.
DONALD L. CORBIN, Justice, dissenting. I do not agree with the majority’s
conclusion that an attorney who has failed to timely pay the annual fee required to maintain
his attorney’s license is an eligible candidate for circuit judge in this state under amendment
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80, § 16(B) to the Arkansas Constitution. Accordingly, for the reasons stated in my dissent
in Kelly v. Martin, 2014 Ark. ___, ___ S.W.3d ___, I dissent from the majority’s conclusion
that Appellee H.G. Foster is an eligible candidate for circuit judge.
I also dissent from the majority’s declaration that “Rule VII(C) is unconstitutional to
the extent that it provides for an automatic suspension of a lawyer’s license without procedural
due process.” This declaration of constitutional infirmness is wholly unnecessary for several
reasons; I briefly touch on three of them.
First, given the majority’s conclusion that Foster’s eligibility to hold judicial office is
not affected by operation or application of Rule VII(C), Foster has suffered no injury and
therefore has no standing to raise a constitutional challenge to Rule VII(C). The general rule
is that one must have suffered injury or belong to that class that is prejudiced in order to have
standing to challenge the constitutional validity of a law. Tsann Kuen Enters. Co. v. Campbell,
355 Ark. 110, 129 S.W.3d 822 (2003). The majority’s application of Rule VII(C) has not
injured Foster in any way. Furthermore, a person to whom a statute or rule has been
constitutionally applied may not mount a facial challenge on the ground that the statute or
rule may conceivably be applied unconstitutionally to others in situations not presently before
the court. Ralph Loyd Martin Revocable Trust v. Ark. Midstream Gas Servs. Corp., 2010 Ark.
480, 377 S.W.3d 251. Both the circuit court and the majority of this court based their
decisions to declare Rule VII(C) unconstitutional on hypothetical or theoretical situations in
which a mistake may have possibly occurred in either the receipt or the posting of the license
fee. But Foster does not allege that his delinquency was the result of any mistake; in fact, he
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does not dispute that he was delinquent on the dates so found by the circuit court. In short,
Foster has no injury and no standing to mount either an as-applied or a facial challenge to
Rule VII(C).
Second, disregarding for the moment Foster’s lack of standing, the analysis of both the
majority opinion and the circuit court’s order overlooks an essential point about the interest
at stake here. Remember, this case is a pre-election challenge to Foster’s eligibility as a
candidate for circuit judge. This court has previously recognized that “‘[t]he right to become
a candidate for state office, like the right to vote for the election of state officers, is a right or
privilege of state citizenship, not of national citizenship which alone is protected by the
privileges and immunities clause.’” Coffelt v. Bryant, 238 Ark. 363, 371, 381 S.W.2d 731, 735
(1964) (citations omitted) (quoting Snowden v. Hughes, 321 U.S. 1, 7 (1944)). Even “an
unlawful denial by state action of a right to state political office is not a denial of a right of
property or of liberty secured by the due process clause.” Snowden, 321 U.S. at 7. Thus, if
Foster’s right to political office warrants any due-process protection at all, it must be found
in the Arkansas Constitution. But here, neither the majority nor the circuit court considered
whether Foster’s right to run for or hold public office is a protected right or privilege under
the Arkansas Constitution, or even, for that matter, under the Fourteenth Amendment to the
United States Constitution. Rather, the majority and the circuit court considered the only
interest at stake here to be Foster’s right or privilege to practice law. Neither Chandler nor
Foster complains in this lawsuit that Foster’s right or privilege to practice law has been
wrongfully deprived.
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Third, again ignoring for the sake of argument Foster’s lack of a protected interest and
lack of standing to raise a constitutional attack on Rule VII(C), contrary to the majority’s
assertion otherwise, pre-deprivation notice and opportunity for a hearing are not always
essential components of due-process protection. This court has recognized that prompt post-
deprivation review to correct administrative error can satisfy minimal due-process concerns,
especially in cases where summary suspensions of a license have occurred. See, e.g., Miller v.
Ark. Dep’t of Fin. & Admin., 2012 Ark. 165, at 12, 401 S.W.3d 466, 472–73 (quoting Mackey
v. Montrym, 443 U.S. 1, 13 (1979) (“‘[S]omething less than an evidentiary hearing is sufficient
prior to adverse administrative action’ as long as there is prompt post-deprivation review
available for correction of administrative error.”)). The majority fails to recognize Rule
VII(C) provides for post-deprivation notice of, and remedy for, delinquencies and, without
conducting the requisite balancing-of-interests analysis, erroneously concludes that pre-
deprivation process is due here.
The majority opinion declares the Rule unconstitutional even though there is no
injury and no standing to challenge the Rule. The effect of the majority’s opinion here is to
eliminate the requirement that a person have an injury or standing to mount either a facial or
as-applied challenge to a statute or rule. On this basis, I strongly dissent from the majority’s
wholly unnecessary declaration that Rule VII(C) is unconstitutional.
Because Foster has no standing to raise the due-process challenge to Rule VII(C), it
is wholly unnecessary for the majority opinion to address the challenge raised in Foster’s third-
party complaint. I would reverse the circuit court’s order declaring the Rule to be
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unconstitutional, and I would vacate the injunction on Steen’s enforcement of the Rule.
Dugger Law Firm, by: Terry Dugger, for appellant.
Martha Adcock, General Counsel, and L. Justin Tate, Associate General Counsel, for
appellee Secretary of State Mark Martin.
David L. Hogue, for appellee Faulkner County Election Commission.
Jeff Rosenzweig, for appellee/third-party appellee Harry G. Foster, II.
Bristow & Richardson, PLLC, by: Bill W. Bristow, for third-party appellant Leslie Steen.
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