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Foul Language and Free Speech: Does Being Offended Justify an Arrest?

While most people treat law enforcement officers with respect, there are occasions when a citizen will voice his/her dissatisfaction with law enforcement officers. One such case occurred in Fort Smith, when a driver yelled “f*** you!” through his car window as he passed an Arkansas State Trooper who was performing a traffic stop related to a different vehicle. After the trooper noticed the reaction of two children to the profane language, he promptly tracked down the driver in his vehicle, stopped him, and arrested him for “disorderly conduct.” The driver spent several hours in jail, but was eventually released and all charges against him were dropped. Despite this apparent resolution, questions remained – was the profane language unprotected or protected speech and was his profane yelling actually a violation of Arkansas’s disorderly conduct law?

Following his release, the driver filed a civil rights lawsuit alleging violations of his First Amendment right to free speech and Fourth Amendment right against unreasonable seizure.  In its opinion in Thurairajah v. City of Fort Smith, 2019 U.S. App. LEXIS 16573, __ F.3d __ (8th Cir. 2019), the Eighth Circuit Court of Appeals recognized that “the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.”  The driver was able to show that (1) his speech was protected; (2) the trooper’s adverse action against him would have a chilling effect on persons wishing to continue in the same type of speech; (3) the motivation for the arrest was at least partially related to the driver’s exercise of a protected activity; and (4) there was no probable cause or arguable probable cause for the arrest.

In this case, the key elements of the analysis related to whether the profane language was considered free speech and whether there was probable cause for an arrest for disorderly conduct.  The protected nature of the speech is clear.  In Thurairajah, the Eighth Circuit Court of Appeals explains that the profane language is in fact protected speech, citing to a Vietnam War era United States Supreme Court opinion finding a jacket with a similarly profane anti-draft message was protected speech.  Furthermore, the Eighth Circuit went on to explicitly confirm that “[c]riticism of law  enforcement officers, even with profanity, is protected speech.”

Although the content of the language is thus clearly protected, the scope and volume of the language could still potentially render it a violation of Arkansas’s disorderly conduct law, as the applicable Arkansas statute penalizes “unreasonable or excessive noise.”  However, in its opinion, the Eight Circuit Court of Appeals highlights the fact that “Arkansas courts have not previously concluded that a two-word yell could violate the disorderly conduct statute’s unreasonable or excessive noise provision.”  In fact, the Court of Appeals cites to one Arkansas case in which “the Arkansas Court of Appeals held that 20 seconds of public shouting involving foul language did not establish disorderly conduct.”  Based upon the applicable facts and the established case law, the Eighth Circuit Court of Appeals held the trooper failed to meet the minimum standard of” arguable probable cause” for the driver’s arrest, acknowledging that the “conduct may have been offensive, but it was not an unreasonable or excessive noise.”  While it may be appropriate for the driver’s mother to wash his mouth out with soap, it was unlawful for the trooper to arrest him for making the profane statement.


The Patchwork Quilt of Liquor Laws in Arkansas is Indecipherable, But Is It Unconstitutional?

Anyone who has driven from town to town, county to county, through Arkansas discovers that they need to plan carefully where and how they might have a cocktail. Being six inches to one side or the other of a county or city line can make all the difference. This arbitrariness has not gone unchallenged.

White County, Arkansas, under the Arkansas legal framework of allowing each local government to decide whether to permit or prohibit the manufacture and sale of alcoholic beverages, has prohibited the same. Mr. Brennan, a Searcy resident, asserted that he wanted to open a liquor store, consume alcohol in restaurants, and purchase alcohol without having to travel outside his home county. He urged that the issue was a matter of safety in that he suffers an “unnecessarily increased risk of being involved in an alcohol-related, fatal crash” because he has to travel afar to legally imbibe. He also argued that in dry counties, drug related crime constitutes a greater threat to the public than in counties where the sale of alcohol is legal. Finally, he argued that there was no legitimate state interest in using the police power to impose “majority morality,” on those whose conduct does not harm others.

The Arkansas courts made short work of his arguments, finding that such law, so long as it had even the least rational basis at all to achieving any legitimate governmental objective under any reasonable conceivable fact situation, had a “rational-basis” and therefore would stand under well-established constitutional law principles which give authority to the legislature to make whatever laws they may, as long as they have any rational basis. Brennan v. White County, 2019 Ark. App. 146.


Not Red Handed: When A Gun is Found 20 Yards From a Suspect in an Unlocked Shed.

The phrase “caught red handed” is often used in police dramas to describe a suspect in possession of a key piece of evidence that leads to a conviction. However, in many real criminal investigations the evidence of a crime is more nuanced and may depend upon circumstantial evidence to support a claim of constructive possession. For instance, in the recent case of Bradley v. State, 2018 Ark. App. 586 (Ark. App. 2018), the Circuit Court convicted a suspect of illegal possession of a firearm, despite the fact that the suspect did not have physical possession of the firearm at the time he was arrested. However, that conviction was subsequently reversed on appeal.

In Bradley, the defendant was convicted of being a felon in possession of a firearm in violation of Ark. Code Ann. § 5-73-103(c)(1)(A). Prior to Bradley’s conviction for that offense, the Circuit Court dismissed five separate charges related to Bradley’s alleged actions on the night he was arrested. All of the charges stemmed from an alleged domestic disturbance at a house in Little Rock. On the night of the alleged incident, the police responded to a 911 call and found various individuals in the house, including an older teenager. The suspect was arrested in the backyard, approximately 20 yards from a metal shed that was located next to the backdoor. About the time of the suspect’s arrest, one of the police officers located a loaded Glock semiautomatic pistol inside the metal shed. The suspect subsequently identified the Little Rock house as his address on a Miranda form.

In Arkansas, “[a] conviction for violating section 5-73-103(a)(1) may be based on actual or constructive possession. Bradley, 2018 Ark. App. at *7. “To constructively possess contraband means knowing it is present and having control over it.” Id. “Control and knowledge can be inferred from the circumstances . . .” Id. at 7-8 (finding it necessary that the item be “found in a place that is immediately and exclusively accessible to the accused . . .”). The Arkansas Court of Appeals determined that the Circuit Court had improperly applied the standard by accepting circumstantial evidence of constructive possession that “did not foreclose, beyond speculation and conjecture, every other reasonable hypothesis of [the defendant’s] guilt.” Id. at 9. The Circuit Court had previously concluded that the prosecution had met its burden of proof, “based upon proof that the Glock firearm located in the rear of the defendant’s residence . . . was located in an area from which the defendant was seen by police officers to have been fleeing or running. It was located in close proximity in time from the time that the defendant was being pursued. It was located in an open space, in an area near where defendant was apprehended.”

Evaluating the circumstantial evidence, the Arkansas Court of Appeals noted that: (1) the police officers admitted that multiple people had access to the house and the shed where the gun was found; (2) no witness had explained the defendant’s relationship to the people in the house; (3) the prosecution did not present evidence that the defendant had a property interest in the house, nor did it provide evidence that he paid utility bills for the house; (4) the prosecution did not link the defendant to the gun through fingerprint analysis, ownership records, or testimony regarding the defendant having a history of prior gun ownership/use; (5) there was no testimony regarding who used the storage shed, the purposes of that use, and the period of time it had been used;(6) the gun was located approximately 20 yards from the defendant, outside of the house, in an open box, in an unlocked shed; and (7) “the police officers did not recover any personal items that may have linked [the defendant] to the metal shed, the gun, or the house.” Id. at 9-12. Based upon these deficiencies, the Arkansas Court of Appeals held that there had not been “substantial evidence to support the conviction . . .” and reversed the conviction.

While it is possible to use constructive possession to prove a crime has occurred, it is difficult to accomplish. Whenever possible, it is better to catch the suspect “red handed.”


How Hostile Must I Be To Acquire Ownership By Adverse Possession?

To prove ownership of land by adverse possession, one must show possession of the disputed property continuously for seven years and that the possession has been actual, open, notorious, continuous, hostile and exclusive, and accompanied with an intent to hold the property against the true owner. However, a recent decision by the Arkansas Court of Appeals shows that the element of hostility is now viewed by an objective, rather than a subjective, standard, which should make it easier for one claiming ownership by adverse possession to prove his claim.

Garland Gilmore filed suit against Sean and Kim Collier to quiet title to a disputed strip of property. Both Gilmore and the Colliers acquired their respective titles from a common predecessor, Lyn and Myrtle Holder. Mr. Gilmore testified at the trial that when he purchased his property in 1972, he was told by Mr. Holder that he was buying all of the land up to a then-existing fence, which enclosed the property where Mr. Holder lived (and which the Colliers now own). The fence was later removed, but Mr. Gilmore actively farmed the disputed strip of land up to where the fence used to be for more than 40 years. The Colliers maintained that the descriptions in the deeds control and that the boundary line should conform to the deeds and not to Holder’s and Gilmore’s understanding of where the boundary line was located.

To establish ownership of property by adverse possession, one must show that he has had actual, open, notorious, continuous, hostile and exclusive possession of the disputed property for seven years, along with an intent to hold the property against the true owner. At the trial, Mr. Gilmore testified that he has always believed that the property he was farming belonged to him and that it was not his intention to “take” the property from anyone. The Colliers argued that this testimony showed that Mr. Gilmore’s use was not a hostile use, but was a permissive use. If one uses someone else’s property with permission, he cannot show the hostile intent necessary for adverse possession.

The Court of Appeals concluded that Gilmore’s act of farming the disputed tract for decades was enough to “establish an intent to hold against, and not in subordination to, the true owner’s rights.” The fact that Gilmore subjectively believed he was farming up to the true property line – which would seemingly eliminate the element of hostility – was deemed unimportant. Instead, the Court focused on Gilmore’s objective behavior. Applying an objective, rather than a subjective, view of intent, the Court found that Gilmore’s possession was “hostile” because “it was to an extent greater than the deed anticipated; and his conduct was not subordinate to Holder’s property interests or done with Holder’s permission.” Collier v. Gilmore, 2018 Ark. App. 549 (November 14, 2018).

This case signals Arkansas’s shift towards what the Court of Appeals described as the “trending” majority view that in adverse possession cases, the element of hostility will be determined by the parties’ behaviors and not by inquiring into a claimant’s subjective intent. So, even if you only intended to possess up to the true property line, if you actually possess property beyond that line and can establish the other necessary elements, your adverse possession claim should succeed. This new interpretation of the law also puts a heavy obligation on all landowners to know where their legal boundaries lie and to enforce those against a neighbor’s apparently non-hostile use. In other words, if your neighbor is mowing, gardening, playing on or otherwise using property inside your boundary, even though only smiling quietly at you as he does it, he is maturing his claim to your property.


Making Bad Decisions Leads to More Bad Decisions: Meth Use Does Not Invalidate Consent to a Police Search.

Methamphetamine is an insidious drug that can cause serious turmoil in the lives of its users. That point is exemplified in the recent case of Dye v. State, 2018 Ark. App. 545 (Ark. App. 2018), in which a methamphetamine user consented to a police search of his house, while he was under the influence of the drug.

On the night at issue in that case, a police officer came across two vehicles on a road near an industrial park that was on private property. He was patrolling the area due to reports of trespassing on private property. After approaching the vehicles, the officer noticed an occupant with a hand full of cash and a black pouch full of loose baggies between the seats.

After additional patrol cars arrived, one of the occupants of the vehicles fled the scene on foot. When asked about where the fleeing person might have gone, the remaining person told the officers that the fleeing man was staying with him at his house. He consented to a search of the house, both verbally and in writing, and gave his key to the house to the officers. The officers later admitted that during his conversation with police, the man’s “speech was slurred, his eyes were glassy, and he was unsteady on this feet.” They concluded that he was under the influence of a narcotic. Despite the man’s condition at the time of his consent, the officers searched the home and within five minutes they discovered a shotgun, shotgun shells, spoon containing crystal methamphetamine, glass pipe, straws containing a powdery substance, and pit bull mix dog. Based upon the evidence, the man was subsequently convicted of possession of methamphetamine, possession of drug paraphernalia, and being a felon in possession of a firearm.

The man appealed his conviction, arguing the consent obtained by the officers was invalid due to the man being under the influence of drugs at the time the consent was allegedly given. Arkansas Rule of Criminal Procedure 11.1 puts the burden on the state to prove by clear and positive evidence that consent to a search was freely and voluntarily given and that there was no duress or coercion. In this case, both the trial court and the Arkansas Court of Appeals agreed that the state had met its burden, based upon the testimony of the officers that the man understood what was going on, consented to the search of his house, gave the officers his key to this house, and voluntarily advised the police about some of the items found in the house.

The man’s methamphetamine use not only subjected him to criminal prosecution, it also appears to have impacted his judgment to the point that he voluntarily gave the police the keys to his house and the evidence necessary to convict him. Some bad decisions, such as methamphetamine use, have a cascade effect that leads to more bad decisions. As appropriately stated in the pop-culture anti-drug television campaigns of the 1980s, “This is your brain on drugs. Any questions?”

No Noise Ordinance In Your Community? Fire Away!

Owners of land surrounding a shooting range constructed by an American Legion Post on a 40 acre tract in rural Arkansas County filed suit to stop the operation of the range, arguing that noise from the range constituted a nuisance. In a 4-3 decision, the Arkansas Supreme Court sided with the shooting range because no local noise ordinance was in effect. The dissenting justices would have ruled differently, but for the same reason – because no local noise ordinance was in effect.


Noise generated from a shooting range constructed by an American Legion Post in southeast Arkansas prompted neighboring landowners on three sides, including two businesses, to file a lawsuit claiming that noise from the range interfered with the use and enjoyment of their land so as to constitute a legal nuisance. The case required an interpretation of Ark. Code Ann. §16-105-502, a statute which states that a person operating a sport shooting range will not be subject to civil or criminal liability for noise or noise pollution resulting from the operation of the range if the range “is in compliance with noise control ordinances of local units of government that applied to the sport shooting range and its operation at the time the sport shooting range was constructed and began operation.” It was undisputed that there was no noise control ordinance if effect when the Legion’s range began operation. The circuit court found that because there was no local noise ordinance in existence, the range was entitled to immunity from suit under the statute.

The landowners appealed to the Arkansas Supreme Court and lost. In 3 Rivers Logistics, Inc. v. Brown-Wright Post No. 158, 2018 Ark. 91 (March 15, 2018), a four-justice majority of the Court concluded that because no local noise control existed at the time the shooting range began operation, “the Legion was in compliance with local noise control ordinances” and the circuit court was correct in finding that the Legion was entitled to immunity. Interestingly, it was for precisely the same reason – because no local noise ordinance existed – that three justices dissented. Their interpretation of the statute was that a local noise ordinance controlling how much noise is acceptable must be in place in order for a shooting range to enjoy the immunity granted by the statute. The dissenting justices stated that if the legislature intended for the statute to immunize a shooting range even when there is no noise ordinance that would apply, it would have simply said so.

Will shooting ranges that become operational when where there in no local noise control ordinance in effect be forever immune from nuisance suits, as the dissenting opinion suggests? Time will tell. For now, though, it is clear that range owners and their customers need not worry about a neighbor’s noise complaints if no local noise ordinance was in effect when the range opened for business.


Powers of Attorney: They Mean What They Say.

Powers of attorney are documents used to designate a person (the attorney-in-fact) who is authorized to act for the signer under particular circumstances (a limited power of attorney), or generally (a general power of attorney), and may be drafted to allow the attorney-in-fact to act even after the signer becomes incompetent (a durable power of attorney). In one recent case, a durable power of attorney giving the attorney-in-fact the power to sell real property on any terms he deemed appropriate was interpreted to allow the sale of a home for $10.00.

The Arkansas Court of Appeals’ decision in Shriners Hospital for Children v. First United Methodist Church of Ozark, 2018 Ark. App. 216 (March 28, 2018) provides a cautionary tale for those who draft, and sign, powers of attorney. In that case, L.G. Foster made a will in 2008 that designated Shriners Hospital as the residuary beneficiary of his estate. In 2012, Foster signed a codicil to his will directing his executor, Frederick Romo, to sell Foster’s residence and contents and distribute the proceeds to Shriners if Foster still owned the residence at his death.

In March of 2013, Foster signed a durable power of attorney, naming Romo as his attorney-in-fact. Importantly, the power of attorney did not give Romo the power to make a gift. It did, however, give him the authority to sell Foster’s real property “at such times, in such places, and upon such terms and conditions” as the attorney-in-fact deemed “appropriate”. In April of 2013, Romo sold Foster’s residence to the First United Methodist Church of Ozark for $10.00. Foster died in May of 2013. In 2014, Shriners filed suit against the Church, contending that the residence should have been included as part of Foster’s estate and should have passed to Shriners under Foster’s will. (Although the opinion does not state the value of the home, it is a reasonable assumption that it was worth enough to justify the cost of a legal challenge.)

The circuit court ruled against Shriners and in favor of the Church and, on Shriners’ appeal, the Court of Appeals affirmed the lower court. Shriners argued that the sale of the residence to the Church for only $10.00 was in essence a gift and that Romo had no authority under the power of attorney to make a gift. The appellate court disagreed with Shriners, noting that if there was no fraud or deception, the question of consideration – the amount of money paid in exchange for the property – is immaterial. The court found that there was no fraud or deception in this case, relying on the affidavit of Romo stating that Foster had decided he wanted the Church, and not Shriners, to receive his residence; that Foster desired to transfer the residence to the Church before his death to avoid having to execute a new will; and that because the power of attorney did not authorize the making of a gift, Foster was fine with selling the residence to the church for $10.00. According to the Court of Appeals, because a donation was not possible under the terms of the power of attorney, “[n]ot only was this sale within the letter of Romo’s authority under the power of attorney to convey Foster’s real property upon such terms as he deemed appropriate, it was also within the spirit of the power of attorney.”

There is a lesson to be learned from this case: be very careful with the wording of any power of attorney you draft or sign, and think through its potential consequences, because that document will likely be interpreted as meaning exactly what it says.

Paying The Very Expensive Price Of Not Believing All Politics Are Local.

A much disputed election of officers in the Crittenden County, Arkansas, branch of the NAACP occurred in 2010. All of the incumbents were defeated and replaced. The National NAACP organization, backing the local incumbents, claimed in several written and spoken public declarations over many months that the election was void, refused to acknowledge the new officers, and denied the Chapter participation in the state convention — all to the prejudice of the local, disarrayed chapter. The Arkansas Court of Appeals recently upheld the Circuit Court’s decision which confirmed the elections and held the National NAACP organization in contempt of court, fining it $100,000 and charging it $20,000 in attorneys’ fees. Interesting points resulted about the effect of court injunctions on non-parties.

The continuing and significant efforts of the National NAACP organization in refusing to acknowledge the newly-elected officers and challenging the validity of the Chapter were brought into Circuit Court by the new officers. Initially, the National NAACP organization was not a party to the action and during that interim period, several orders, including injunctions, were issued confirming the validity of the newly-elected officers.

The Appellate Court held that even though the National NAACP organization was not a party to the suit at the time the injunctions were issued, nor had it become a party by the time many of their declarations of invalidity were made, any person or entity, regardless of whether they are a formal party to the litigation or not, is bound by the terms of an injunction if duly served with it. The National NAACP organization’s intermeddling with court-approved local affairs was severely sanctioned by the Circuit Court, and its decision was approved by the Court of Appeals. 207 Ark. App. 166, March 15, 2017.

Marijuana, and Casinos, and Tort Reform! Oh, my!

To add to the drama of this unprecedented election season, a side battle has been raging in Arkansas Courts with respect to three proposed amendments to the Arkansas Constitution. This battle involves attempts, through constitutional amendment, to legalize medical marijuana, legalize additional casinos and gambling, and authorize the Arkansas General Assembly to enact a specific type of medical tort reform that limits certain types of damages and limits attorney contingency fees.

Unlike many states, in Arkansas, our Constitution (Amendment 7) allows for a streamlined method for citizens to amend that Constitution by popular vote. The purpose of this process is to give “power to the people.” Citizens petition their legislators to propose amendments, citizens obtain signatures for the proposed amendments, and the Arkansas Attorney General must approve any ballot names and ballot titles prior to the proposed amendments being put to the vote of the citizenry. However, it is not a free for all. There are some limits on any attempt to amend the Arkansas Constitution by popular vote. Arkansas Chief Justice Howard Brill recently stated that “[t]he spirit of Amendment 7, which gives power to the people, requires [the Arkansas Supreme Court] to give appropriate guidance to those constituencies.” Wilson v. Martin, 2016 Ark. 334 (2016) (concurring opinion).

Which brings us back to the battle of the proposed constitutional amendments. Each proposed amendment – the medical marijuana amendment, the casino/gambling amendment, and the medical tort reform amendment – have fervent advocates as well as stiff opposition. The medical marijuana amendment drew the ire of the state Chamber of Commerce, many businesses, doctors, and even the Governor (former head of the federal Drug Enforcement Administration). Similarly, the proposed medical tort reform amendment has been aggressively challenged by the Arkansas Bar Association, the American Trial Lawyers Association, and various medical malpractice plaintiffs’ attorneys. There was also opposition to the proposed casino amendment, which created some strange bedfellows, uniting religious groups and Arkansas’s existing casinos (Oaklawn Park and Southland Gaming) in opposition to an out-of-state push to allow for expanded gambling in Arkansas.

Due to this active opposition, it was inevitable that challenges to the three proposed amendments would end up before the Arkansas Supreme Court. The cases, which were decided by the Arkansas Supreme Court on October 13, 2016, each challenged the adequacy of the respective “ballot titles.” Under Arkansas law, “[t]he ballot title must be an impartial summary of the proposed amendment, and it must give voters a fair understanding of the issues presented and the scope and significance of the proposed changes in the law.” Cox v. Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008). It must be complete enough to convey the scope of the amendment and be “free from misleading tendencies that, whether by amplification, omission, or fallacy, thwart a fair understanding of the issue presented.” Id. After reviewing the various ballot titles, the Arkansas Supreme Court ruled the ballot titles for the proposed casino and medical tort reform amendments were insufficient because they failed to provide voters with enough information to understand the proposed amendments and their scope. Lange v. Martin, 2016 Ark. 337 (2016); Wilson v. Martin, 2016 Ark. 334 (2016); Rose v. Martin, 2016 Ark. 339 (2016). The Court came to a different conclusion with respect to the ballot title for the proposed medical marijuana amendment, which it found to be sufficient. It made this decision in spite of the fact that the ballot title fails to specifically inform voters that the amendment prevents doctors, lawyers, and other professionals from being denied a license to practice or from being disciplined for using medical marijuana.

As you head to the polls to cast your votes in this crazy election, you can be assured that at least two of your votes will not count. The Arkansas Secretary of State is prohibited from counting any of the votes related to the proposed casino and medical tort reform amendments, even though they will appear on ballot. On the other hand, your vote either in favor or against medical marijuana will count.

It is an election year once again!

While the presidential race is now dominating the media outlets, if you watched any television in the last few months you undoubtedly know that two hotly contested races for positions on the Arkansas Supreme Court and Court of Appeals just concluded in this state’s March primary. The vast amounts of money which were spent by and on behalf of this year’s judicial candidates – and the often undisclosed source of those funds – have raised new questions about whether it is best to elect or to appoint our appellate court judges.

Arkansas is one of 22 states which elects its appellate judges. The Arkansas Supreme Court is comprised of a Chief Justice and six associate justices, all of whom are elected from the state at large to serve eight year terms. Twelve judges make up the Arkansas Court of Appeals, which typically hears cases in panels of three. Each of those judges is elected by constituents in the judicial district in which he or she resides and is also elected to serve an eight year term. These two appellate courts decide all of the appeals from the decisions of our 121 state circuit court judges. The only objective requirement for Supreme Court and Court of Appeals candidates to be elected is that they be licensed attorneys of this state for at least eight years immediately preceding the date of assuming office. No requirement otherwise exists by which to judge the intellect, experience, legal expertise, abilities, character or standing in the legal community for these candidates.

Voters often know the men and women running to serve as circuit judges in our state trial courts, who must live in the circuit they serve. However, those same voters usually know very little about the candidates for positions on our appellate courts. This is in large part a consequence of the Arkansas Code of Judicial Conduct, which is intended to ensure an independent, fair and impartial judiciary. Unlike political office-seekers, judicial candidates are prohibited by the Code of Judicial Conduct from speaking about their positions on specific issues, as such statements might be expected to affect the outcome of a matter pending or soon to be pending in court. That Code also prohibits judicial candidates from soliciting or accepting campaign contributions other than through a campaign committee. These “safeguards” to large degree backfire in practical effect.

Candidates for judgeships are not supposed to know who donates to their campaigns, so as not to be influenced by those donors in their judicial decisions. This mandate creates real problems in both the judicial races and subsequent service as judges. That a judge remain ignorant of election support, when a prominent lawyer or citizen hosted a large fund-raiser for the judge’s campaign, is not a realistic expectation. However, pretending to remain ignorant of that unavoidably obvious fact when such lawyer or citizen is then in that judge’s court precludes the judge from admitting any bias and allows him or her to adjudicate “fairly” those who clearly facilitated election to the judge’s current office and job.

These rules have also led to the infusion of so-called “dark money” – money spent by non-profit organizations which are not required to identify their donors. The result has been that millions of dollars are spent on judicial elections – much of it by out-of-state special interest groups – and that money typically takes the form of negative, attack-style advertising. It has been reported that more than $1.3 million was spent in TV ads in the two Arkansas high court elections which just concluded, which is more than double the amount of money previously spent on any Arkansas judicial election.

In short, judicial elections have become politicized, high-stakes contests, just like races for state governmental offices. Should Arkansas move to a new system of selecting its appellate judges? About half of the states employ a merit-selection system under which judges sitting on their highest courts are either appointed by the state’s governor or a panel of legislators or are nominated by non-partisan panels. In some states those judges then face periodic retention elections.

There is now a move afoot among Arkansas lawyers and in the Arkansas legislature to consider whether reforms should be made in our state. The Senate Judiciary Committee is studying whether there is support for putting on the November ballot a Constitutional amendment which would have justices appointed rather than popularly elected. Other legislators are working to propose legislation which would increase transparency by requiring disclosure from groups spending money on ads in judicial races. Yet, many lawmakers, as well as members of the Arkansas Supreme Court itself – including both of the candidates in the race for Chief Justice of the Supreme Court – have said that they favor retaining the present system of having the voters elect judges. Proponents of elected judges believe that competitive elections are the most democratic way to make judges accountable to the public they serve. Adherents of the appointment/retention system contend that this system greatly reduces the influence of special interest money and leads to the selection of better-qualified candidates.

There is also political pressure mounting that judges be specifically aware of who contributes to their campaigns, including all of the dark money, and combining that requirement with a mandate that such judge recuse and disqualify from those cases where any person or corporation involved has contributed more than a modest sum. Time will tell whether our current system will remain in place or whether Arkansas will decide to utilize some form of merit selection for our courts of last resort and make judicial election contributions more transparent and judicial disqualification more specific. What are your views?