The Arkansas Bar Association said last week that it isn’t looking at another proposed state constitutional amendment creating a system in which state Supreme Court justices would be appointed rather than elected.
Last month, the ABA’s House of Delegates failed to receive enough votes from its approximately 80 members to endorse a proposed amendment from the ABA’s task force. The proposal called for the governor to select the justice from three names given to him by a nominating commission, said Denise Hoggard, the president of the ABA.
“Given the session starts in January, I can’t imagine that we would have ample time to explore other avenues for proposals at this point,” Hoggard told Arkansas Business. The session started last week.
If the proposal had been endorsed by the House of Delegates, the General Assembly still would have had to select that amendment as one of its three proposed amendments to be submitted to Arkansans for a vote.
The question of whether Arkansas voters should continue to elect state Supreme Court justices and Court of Appeals judges has been gaining momentum since 2015, after a bribery scandal involving former Faulkner County Circuit Judge Michael Maggio and concerns were raised about the state Supreme Court’s handling of a case involving same-sex marriage.
In addition, some legislators and attorneys are worried about the growing influence of money, especially from shadowy groups outside the state, in appellate court elections and the limited amount of information on which voters can base their decisions at the polls.
In 38 states, at least some appellate and major trial court judges face the voters, either in traditional competitive elections or in one-candidate retention elections, according to Justice at Stake, a nonpartisan group in Washington that works to keep courts fair and impartial.
In 2015, Gov. Asa Hutchinson said he supported an appointment-type process for selecting appellate judges. But if an agreement was reached on how to do that, he said, action should be taken in the form of a constitutional amendment to allow the people to decide.
Hutchinson asked the ABA to take the lead on developing a selection system, Hoggard said.
Last week, Hutchinson said in a statement to Arkansas Business that the ABA’s proposal doesn’t have sufficient legislative support. “And it remains to be seen as to whether that’s something the General Assembly can agree upon or not,” he said. “I have said very clearly that I support an appointment-type process for Supreme Court judges and that it be referred to a vote of the people for the ultimate decision.”
The state Supreme Court justices prefer the current election system.
On Dec. 15, the day before the ABA’s House of Delegates vote, the seven members of the court issued a resolution saying they support letting the voters decide.
The justices “hereby oppose any proposal that would move the judicial selection process from elections to appointments in any form,” the resolution said.
The court’s resolution stated that moving to an election process would create “several problems,” including stripping Arkansans “of their long held right to select their members of the state’s judiciary.” The justices also said an appointment system creates “significant issues” with the principle of separation of powers.
“It creates numerous potential conflicts between any Governor who would appoint the Justices and his executive branch agencies which routinely appear before the courts,” it said.
The ABA’s Hoggard said that she couldn’t speculate on whether the resolution influenced the House of Delegates members.
She said the most frequent comment she heard from members was that people were concerned about losing their chance to vote for the justices. Others, though, supported an appointment process, just not the one that the ABA’s task force had proposed.
Still, “there was no one that said, ‘I would support the proposal if it were amended,’” Hoggard said.