Judicial discipline panel faces suit by LR lawyer

The method used by the state to decide whether a complaint against a judge is valid is unconstitutional, a Little Rock attorney alleges in a suit filed against the Arkansas Judicial Discipline and Disability Commission.

Sam Perroni says in the suit that only the commission is allowed to investigate a claim against a judge, not the “investigatory panels” the commission currently uses.

Commission Executive Director David Stewart said he disagrees with Perroni’s interpretation of the state constitution and that the Supreme Court will eventually have to weigh in.

This is the second time Perroni has sued the commission regarding a complaint he filed in January 2011 alleging that Pulaski County Circuit Judge Tim Fox altered circuit court records, had an affair with a law clerk who has since appeared before him in court as an attorney, and used partisan literature during his unsuccessful 2010 campaign for the Supreme Court.

The complaint was assigned to a three-member investigatory panel, which dismissed it. Perroni alleges the complaint wasn’t examined. Stewart then denied a Freedom of Information Act request filed by Perroni for the names of the panel members.

On March 19, Pulaski County Circuit Judge Mary McGowan ruled that state law does not allow the Judicial Discipline and Disability Commission to withhold the names of the commission members who dismissed the complaint.

The state argued at a December hearing that the information isn’t public unless the investigatory panel of commission members decides that the complaint has merit. Perroni’s attorney argued that the names of the panel members are not a part of the investigation and should be released.

Fox was not in his office Friday and did not return phone calls.

McGowan is the judge for Perroni’s new case, which seeks a declaratory judgment that the panels are unconstitutional and asks that Perroni’s original complaint against Fox be reconsidered by the full commission.

Perroni said the complaint shouldn’t have been dismissed by a panel.

“The citizens of Arkansas shouldn’t have to endure that if someone has a complaint against a judge,” Perroni said. “Until I feel like I’ve gotten a fair examination of this complaint by the full commission, I am going to continue pursuing it.”

Amendment 66 to the Arkansas Constitution creates the commission to investigate complaints and discipline judges.

A.C.A. 16-10-404 lays out how the commission shall conduct investigations and hearings concerning allegations of judicial misconduct and make recommendations to the Arkansas Supreme Court.

In 2008, the Supreme Court amended its Rules of Procedure to allow for the creation of “investigation panels” to either dismiss complaints without sufficient cause or direct commission staff members to investigate.

“Nothing in either the Constitution or enabling statute grants authority for the creation of commission alternate ‘Investigation panels’ whose power extends to dismissing a citizen’s complaint and/or determining the vague and undefined standard of ‘sufficient cause to proceed,’” the complaint states.

Perroni specifically asks the court to rule that Rules 8C, D and E of the Rules of Procedure of the commission are unconstitutional.

Rule 8C states that “The Investigation panel shall dismiss all complaints for which sufficient cause to proceed is not found by that panel. If the complaint is not dismissed, the panel shall then direct the staff to make a prompt, discreet, and confidential investigation. In no instance may the staff undertake any investigation or make any contact with anyone other than the complainant and the judge unless authorized to do so by the Investigation panel. Upon completion, the panel shall review the findings from the investigation. The panel shall dismiss all complaints for which sufficient cause to proceed is not found.”

Stewart said the Supreme Court knew what it was do- ing when it amended the rules. He said the core question of the complaint is what constitutes the commission — is it all nine members or a subcommittee?

“The Supreme Court has said it is sufficient that a subset of commissioners review the complaint ... then the full commission decides the issue,” Stewart said. “Sam’s been known to tilt at windmills from time to time and I think he is doing so here. He wants a circuit court to mandate a change to the Supreme Court rules.”

Stewart said it will be interesting to see whether the circuit court rules for or against the Supreme Court.

“That will be an interesting position to take,” he said. “I would suspect that regardless of what the decision is on this specific issue, it is ultimately going to be decided by the Supreme Court and not the circuit court.”

The commission will be represented by the attorney general’s office, Stewart said. Attorney general spokesman Aaron Sadler said the office is reviewing the case.

Perroni said he also expects the issue to get to the Supreme Court. He said the court has had to decide the constitutionality of its own rules before.

“The Supreme Court can make mistakes, too,” Perroni said.