Spradlin v. Arkansas Ethics Commission , 314 Ark. 108 ( 1993 )

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 Ark. Code Ann. § 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 Tern 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 [Ark. Code Ann. §] 7-1-101(7), serves on the commission.” Ark. Code Ann. § 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 l-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 department.

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 Brandéis) in Springer v. Phillipine Islands, 277 U.S. 189 (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 thatf 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.” Ark. Code Ann. § 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 reading of the Act reveals that the only action which the Commission can take upon finding a violation is to do one or more of the following: “(A) Issue a public letter of caution or warning; or (B) Report its finding, along with such information and documents as it deems appropriate, and make recommendations to the proper law enforcement authorities.” Ark. Code Ann. § 7-6-218(b)(4). Thus, it is apparent that the Commission has no power whatever to make any orders, much less to enforce them. The only “disciplinary action” it can take is to make public a letter declaring what it has found in the way of a violation. That is hardly action which is judicial in nature or related to the administration of justice.

Appellees also rely upon decisions in Louisiana and Kansas which upheld similar bodies whose members were appointed by both the legislative and executive branches (Board of Ethics for Elected Officials v. Green, 566 So.2d 623 (La. 1990); and Parcell v. Governmental Ethics Commission, 639 F.2d 628 (10th Cir. 1980), in which the Kansas Supreme Court answered a question certified to it by the Tenth Circuit). These courts reviewed the degree of control exercised by the appointers over the appointees and, finding little or none, concluded that neither branch had usurped the powers of the other branch. The fact that the bodies were a blending of powers of different branches was not objectionable.

First, we point out that these cases did not involve an appointment by a member of the judicial department and are distinguishable on that basis. It has been observed that while we may tolerate some blurring of lines between the legislative and executive departments, this court has been very protective of the barrier surrounding 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).

These two cases from neighboring states are also distinguishable on the basis of differences in the specific constitutional provisions under consideration. The Louisiana Constitution contains a provision designating the Governor to make all appointments in the executive branch not otherwise “provided constitution or by law.” In Green the Louisiana Supreme Court held that this language authorized the legislature “by law” to provide for the appointment of executive branch persons by other than the Governor — specifically, by the legislature itself. There is no such appointment provision in the Arkansas Constitution. And, the Kansas Constitution contains no express separation of powers provision, as does the Arkansas Constitution (although a separation of powers doctrine has been adopted by Kansas case law).

Finally, Green and Parcell represent approval of a sort of “blending” of the powers of two departments of government. The Kansas court described that Ethics Commission as a “cooperative venture rather than the usurpation of power by the legislative branch from the executive branch,” and held that this “practical result of the blending of the powers . . . was not a violation of the separation of powers doctrine.” Parcell v. Governmental Ethics Commission, 639 F.2d at 633-34. In Oates v. Rogers we specifically rejected the notion of a “blending” of powers in favor of a more strict separation of powers when we said: “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.” Oates v. Rogers, 201 Ark. at 346, 144 S.W.2d at 458.

In the case before us, the Commission, as structured by the Act, is not related to the administration of justice and is not part of the judicial department of government. We hold that by designating the Chief Justice of the Supreme Court to appoint one of the members of the Commission, that portion of the Act creating the Commission violates the separation of powers and is unconstitutional.

Given our decision on this issue, the second issue raised by appellants — the appointment of Mr. May — is moot. But, we would have upheld the appointment of Mr. May for the reason that there is no objective standard in the Act by which one can determine whether an appointee is a “member of a minority political party,” and we would give great deference to the discretion of the appointer and great weight to the circuit court as the fact-finder on that issue. While the evidence suggests that Mr. May may not have been considered a currently active, loyal Republican by some in the leadership of the Arkansas Republican Party, there is also evidence of at least some voting by Mr. May for Republican candidates and contributing by Mr. May of money to Republican candidates and causes in relatively recent times. And there is direct testimony by Mr. May himself that he currently considers himself to be a Republican and holds himself out publicly to be a Republican. Under these circumstances, we would have affirmed the judgment of the circuit court on that issue.

The judgment is reversed and remanded to the circuit court with directions to enter judgment not inconsistent herewith.

Special Justices Sherry P. Bartley, Cyril Hollingsworth, Scotty Shively and James R. Wallace join in the foregoing opinion. Special Justice Don F. Hamilton and Larry C. Wallace dissent.