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State Supreme Court Staff Draws Lawmakers Attention

Posted Wednesday, December 5, 2012, at 4:36 PM

What is taught in civics class doesn't always reflect what happens in the real world of politics.

However, a dispute last week at the state Capitol could have come directly from the pages of a high school civics textbook.

It occurred during legislative budget hearings. Senators and representatives on the Legislative Council and the Joint Budget Committee were considering a spending request by the state Supreme Court. The chief justice of the Supreme Court presented the budget request to legislators.

For decades, in the days before the start of regular legislative sessions the court had made similar budget requests to legislators. For decades the legislature had listened to the budget requests and signed off on them after making a few modifications.

But this year legislative auditors brought to the attention of the legislature a practice that has been going on for years under the radar, figuratively speaking. The Supreme Court has been collecting license fees from all attorneys in Arkansas and using the revenue to pay a staff that regulates the practice of law. The court sets their salaries and has even created a retirement system for those employees.

This practice raised questions among legislators who are versed in the Constitution and remember the lessons they learned in civics about the separation of powers between the legislative, the executive and the judicial branches of government.

Article 16, Section 4, of the state Constitution says "The General Assembly shall fix the salaries and fees of all officers of the State." It also says that "the numbers and salaries of the clerks and employees of the different departments of the State shall be fixed by law."

Civics teachers often describe legislative authority to appropriate tax revenue as the "power of the purse strings."

Therefore it came as a surprise to many legislators to learn that the court has been levying fees and basically appropriating the revenue to staff an office that the court created. The legislature has never enacted an appropriation for the 15 court employees in question. They mostly work in jobs that regulate the legal profession and enforce professional standards of conduct for attorneys.

The chief justice based the court's practice on a 40-year-old interpretation of Amendment 28 to the state Constitution, which authorizes the court to regulate the practice of law and the conduct of attorneys. That 40-year-old decision does not reference Article 16, Section 4, of the Constitution.

All sides agree that it would be necessary for an Arkansas citizen to file a lawsuit in order to reach a conclusive resolution of the disagreement, and to reconcile the provisions of Amendment 28 and Article 16, Section 4 of the Constitution. Presumably, if such a lawsuit were filed, the seven justices of the Supreme Court would step down to prevent the appearance of a conflict of interest.

Practical-minded leaders of the legislature don't relish the idea of a lawsuit, which would be lengthy and expensive. They hope that negotiations conducted by reasonable people will result in a satisfactory outcome, some time before the final day of the 2013 legislative session.



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State Senator Robert Thompson (D) of Paragould serves in the Arkansas Senate.