Cite as 2021 Ark. 38 SUPREME COURT OF ARKANSAS No. CV-20-171
Opinion Delivered: March 4, 2021
ARKANSAS ETHICS COMMISSION APPELLANT/CROSS-APPELLEE APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT [NO. 60CV-19-957] SUSAN K. WEAVER APPELLEE/CROSS-APPELLANT HONORABLE MACKIE PIERCE, JUDGE
CIRCUIT COURT’S ORDER AFFIRMED ON DIRECT APPEAL; CROSS-APPEAL DISMISSED.
COURTNEY RAE HUDSON, Associate Justice
Appellant Arkansas Ethics Commission appeals the Pulaski County Circuit Court’s
order vacating the Commission’s finding that appellee Susan K. Weaver violated Arkansas
Code Annotated section 7-6-228(c)(1) (Supp. 2019) when a magazine published her
campaign advertisement without the required “paid for by” disclosure during Weaver’s
successful 2018 judicial campaign. For reversal, the Commission argues that it correctly
interpreted section 7-6-228(c)(1) to find Weaver guilty of a violation in the absence of a
culpable mental state. Alternatively, the Commission argues that substantial evidence
supports its finding that Weaver was negligent. On cross-appeal, Weaver argues that the Commission’s procedures violated her due process rights. We reverse the Commission’s
decision in part and vacate in part on direct appeal and dismiss on cross-appeal.
The relevant facts are not disputed. During Weaver’s campaign for Circuit Judge—
Division 1, Faulkner County, Weaver’s campaign worked with Faulkner Lifestyle to create a
print ad to run in the magazine. LeAnn Livingston, a staff member from Weaver’s campaign,
and Raegan Miller, a Faulkner Lifestyle employee, exchanged emails regarding the ad during
the editing process. On April 22, 2018, Miller sent Livingston a copy of the ad, and
Livingston emailed Miller the next day saying that she loved it but wanted to add Facebook,
Instagram, and Twitter icons. Miller responded, “Sure thing!” Later that day, Livingston
emailed Miller asking for an invoice so that she could pay for the ad. Critically, Livingston
sent a final email to Miller the next day directing her to include the “paid for by” language.
Unfortunately, Miller did not include the language, but nonetheless, ran the unsanctioned
ad. The publication took full responsibility for the oversight.
Weaver’s 2018 opponent filed an ethics complaint on July 10, 2018.1 Upon receiving
the complaint, the Commission notified Weaver that it would investigate whether or not
she had “violated Ark. Code Ann. § 7-6-228(c)(1) by omitting the disclaimer language on
. . . a full page ad which ran in the May 2018 edition of Faulkner Lifestyle.” Weaver
responded, strongly denied any wrongdoing, and stated, “I did not fail to include the
1 The complaint alleged several violations. The Commission dismissed all claims except the one relating to the magazine ad that is the subject of this appeal.
2 language, rather the magazine did.” Weaver attached the relevant emails as supporting
exhibits.
The Commission met on October 19, 2018, to consider the results of its staff’s
investigation into the complaint. After the staff’s presentation of the evidence, the
Commission found probable cause that Weaver had violated section 7-6-228(c)(1) when
Faulkner Lifestyle published the print ad without the required disclosure. The Commission
notified Weaver of this finding and offered to settle the case by issuing a public letter of
caution as a sanction. Weaver declined the offer and requested a hearing.
The Commission held a public hearing on January 18, 2019. Before the hearing,
Weaver’s counsel filed a motion to declare the Commission’s procedures unconstitutional.
Weaver claimed that the Commission’s procedures violated her state and federal due process
rights because the Commission is the singular entity that determines whether there is
probable cause to find a violation, offers a settlement, and adjudicates the issue if the
settlement offer is rejected. At the hearing, Weaver’s counsel presented arguments regarding
the constitutionality of the Commission’s procedures, whether section 7-6-228(c)(1)
requires a culpable mental state, and whether the advertisement was “campaign material”
covered by that section. The Commission determined that its procedures were
constitutional and that the ad constituted campaign material and violated section 7-6-
228(c)(1). The Commission further found that section 7-6-228(c)(1) did not require a
culpable mental state, but that if it did, Weaver violated that section by acting negligently.
However, the Commission found good cause to impose no sanction. Weaver sought judicial
3 review pursuant to Arkansas Code Annotated section 25-15-212 (Supp. 2019) of the
Administrative Procedure Act. The circuit court concluded that the Commission’s
procedures were constitutional but that the Commission erred in its conclusion that the
standard of proof for a violation of section 7-6-228(c)(1) is strict liability. The circuit court
further determined that the Commission’s alternative finding that Weaver was negligent was
not supported by substantial evidence. It is from this order that the parties appeal.
Our review on appeal is directed toward the decision of the administrative agency,
rather than the decision of the circuit court. Hurd v. Ark. Oil & Gas Comm’n, 2020 Ark.
210, 601 S.W.3d 100. As with all appeals from administrative decisions under the
Administrative Procedure Act, either the circuit court or the appellate court may reverse
the agency decision if it concludes that the substantial rights of the petitioner have been
prejudiced because the administrative findings, inferences, conclusions, or decisions are (1)
in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory
authority; (3) made upon unlawful procedure; (4) affected by other error or law; (5) not
supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by
abuse of discretion. Id.; Ark. Code Ann. § 25-15-212(h).
To establish an absence of substantial evidence to support the decision, the
challenging party must demonstrate that the proof before the administrative tribunal was so
nearly undisputed that fair-minded persons could not reach its conclusion. Teston v. Ark.
State Bd. of Chiropractic Exam’rs, 361 Ark. 300, 206 S.W.3d 796 (2005). When the agency’s
decision is supported by substantial evidence, it automatically follows that the decision
4 cannot be classified as arbitrary and capricious. Wright v. Ark. State Plant Bd., 311 Ark. 125,
842 S.W.2d 42 (1992). We afford no deference to an agency’s statutory interpretation; our
review is de novo. Myers v. Yamato Kogyo Co., Ltd., 2020 Ark. 135, 597 S.W.3d 613.
This appeal involves our interpretation of section 7-6-228(c)(1). The first rule in
considering the meaning and effect of a statute is to construe it just as it reads, giving the
words their ordinary and usually accepted meaning in common language. Taylor v. Biba,
2014 Ark. 22. We reconcile statutory provisions in order to make them consistent,
harmonious, and sensible and to give effect to every part. 3 Rivers Logistics, Inc. v. Brown-
Wright Post No. 158, 2018 Ark. 91, 548 S.W.3d 137. When the language of a statute is plain
and unambiguous, this court determines legislative intent from the ordinary meaning of the
language used. Id.
In this instance, there is no question that Faulkner Lifestyle published an ad in support
of Weaver’s candidacy without the statutorily required financial disclosure language. Section
7-6-228(c)(1) requires that
[c]ampaign signs, campaign literature, and other printed campaign materials under this section shall clearly contain the words “Paid for by” followed by the name of the candidate, committee, or person who paid for the campaign sign, campaign literature, or other printed campaign materials.
On appeal, the Commission argues that section 7-6-228(c)(1) does not have a culpable-
mental-state requirement, and if the General Assembly had wanted one, it could have
included one. Alternatively, the Commission argues that its finding that Weaver was
5 negligent was supported by substantial evidence. However, we hold that substantial
evidence does not support the Commission’s conclusion under either standard.
The Commission’s final order states that Weaver “committed a violation of Ark.
Code Ann. § 7-6-228(c)(1) in her capacity as a candidate for Circuit Judge—Division 1,
Faulkner County during the 2018 election cycle by placing a campaign ad in the May 2018
edition of Faulkner Lifestyle which did not include the ‘Paid for by’ disclaimer required by
statute.” Although the Commission argues that section 7-6-228(c)(1) either has no mental
state requirement or that Weaver negligently violated the statute’s provisions, we conclude
that the required mental state is inconsequential given the facts of this case. The record
demonstrates that neither Weaver nor a member of her campaign staff “committed” a
violation or “placed” an ad without the appropriate disclosure. Instead, Weaver ordered an
ad that was to include the “paid for by” language. Notably, the publication was the party
that did not include the necessary and requested language. The magazine’s failure is not
Weaver’s failure. It would be irrational to expect a candidate to don a printer’s apron and
supervise production of a magazine to avoid running afoul of our ethics statutes.
In short, Weaver did not “place” an ad that violated Arkansas Code Annotated
section 7-6-228(c)(1), and substantial evidence does not support the Commission’s decision.
Because we reverse the Commission’s ruling that Weaver violated section 7-6-228(c)(1),
we decline to consider her alternative argument that the Commission’s procedures are
unconstitutional. We therefore vacate the Commission’s order as to Weaver’s constitutional
arguments and dismiss her cross-appeal. It is our duty to refrain from addressing
6 constitutional issues if or when the case can be disposed of without determining
constitutional questions. Tollett v. Wilson, 2020 Ark. 326, 608 S.W.3d 602.
Commission’s decision reversed in part, vacated in part.
Circuit Court’s order affirmed on direct appeal; cross-appeal dismissed.
Special Justice LEON HOLMES concurs.
KEMP, C.J., and WYNNE, J., and Special Justice TIFFANY MILLIGAN BROWN
dissent.
BAKER and WOOD, JJ., not participating.
LEON HOLMES, Special Justice, concurring. The Court has issued two opinions,
each joined by three justices, and each announcing the plain meaning of a statute. Both
opinions miss the plain meaning of the statute. They do so because both parties base their
arguments on the same false assumption as to the meaning of the statute that Susan Weaver
was found to have violated; and both opinions issued by the Court, rather than correct that
false assumption, have adopted it.
Weaver was charged with and found guilty of violating Ark. Code Ann. § 7-6-
228(c)(1). In charging Weaver with violating that provision, the Commission staff assumed
that subsection 7-6-228(c)(1) prohibits placing a printed political advertisement without the
“Paid for by” disclosure. Weaver has accepted that assumption.1 The Commission likewise
1 Weaver argued below but not on appeal that because subsection 7-1-103(a)(7)(A)(i) specifically includes newspaper advertisements, the term printed campaign materials in subsection 7-6-228(c)(1) does not, but she has never challenged the assumption that
7 accepted that assumption, as did the Circuit Court. Now this Court, too, has accepted that
assumption in order to avoid deciding the case based on an argument that was not made by
the parties. But that assumption is false.
As a matter of context, it is helpful to know that section 7-6-228 is included in a
subchapter of the election code devoted largely to campaign finance reporting requirements.
Section 7-6-228 provides:
(a) A candidate may retain campaign signs, campaign literature, and other printed campaign materials that:
(1) Were purchased by the campaign;
(2) Were reported on the appropriate contribution and expenditure report for the campaign at the time of the purchase; and
(3) Are retained for use in a future campaign by the same candidate.
(b) A candidate:
(1) May reuse the campaign signs, campaign literature, and other printed campaign materials under subsection (a) of this section in future campaigns; and
(2) Is not required to list the campaign signs, campaign literature, and other printed campaign materials under subsection (a) of this section in future reports filed under this subchapter.
(c) (1) Campaign signs, campaign literature, and other printed campaign materials under this section2 shall clearly contain the words “Paid for by” followed by the name of the candidate, committee, or person who paid
subsection 7-6-228(c)(1) prohibits the use of printed campaign materials without the “Paid for by” disclosure. 2 The Commission did not take note of this small but important prepositional phrase, nor did the briefs of either party or the opinions issued today.
8 for the campaign sign, campaign literature, or other printed campaign materials.
(2) Subdivision (c)(1) of this section applies only to campaign signs, campaign literature, and other printed campaign materials created by or sponsored by a political candidate, a political action committee, or an independent expenditure committee. [Emphasis added.]
Taken as a whole and viewed in context, section 7-6-228 provides that a candidate
may retain and reuse campaign materials in a subsequent campaign without reporting them
again in the reports required by subchapter 6 of the election code. Subsection 7-6-228(c)(1)
limits the campaign materials that may be so reused to those that contain the “Paid for by”
disclosure; it does not duplicate the prohibition in section 7-1-103(a)(7)(i). Because
subsection 7-6-228(c)(1) is essentially a definitional section limiting the application of
section 7-6-228, not a prohibition on placing printed campaign advertisements without the
“Paid for by” disclosure, asking whether subsection 7-6-228(c)(1) imposes strict liability or,
instead, includes a mens rea requirement, makes no sense.
Anyone who pays the slightest attention to election campaigns in Arkansas knows,
or has reason to know, that Arkansas law requires that every political advertisement include
a “Paid for by” disclosure. As to printed advertisements, that requirement is set forth in Ark,
Code Ann. § 7-1-103, which states, in pertinent part:
(a) The violation of any of the following shall be deemed misdemeanors punishable as provided in this section:
(7)(A)(i) All articles, statements, or communications appearing in any newspaper printed or circulated in this state intended or calculated to influence the vote of any elector in any election and for the publication of which a consideration is paid or to be paid shall clearly contain the words
9 “Paid Political Advertisement”, “Paid Political Ad”, or “Paid for by” the candidate, committee, or person who paid for the message.
(ii) Both the persons placing and the persons publishing the articles, statements, or communications shall be responsible for including the required disclaimer.
Weaver was never charged with or found guilty of violating this provision. No
correspondence from the Commission staff or hearing notice mentioned subsection 7-1-
103(7)(A)(i); nor did the Commission refer to that provision in its final order. Although
Weaver was not charged with or found guilty of violating subsection 7-1-103(7)(A)(i), the
Commission imported from this provision the “persons placing” language, holding that
Weaver placed an advertisement without the “Paid for by” disclosure, even though
subsection 7-6-228(c)(1) does not contain that language. The opinion of the Court—the
opinion by Justice Hudson, joined by Justices Womack and Webb—also imports the
“persons placing” language from subsection 7-1-103(7)(A)(i) into subsection 7-6-228(c)(1),
holding that Weaver did not place an advertisement without the “Paid for by” disclosure.
The parties framed the issue based on a false assumption, and this Court, adhering to
the principle that a court generally will not decide a case on a basis not presented by a party,
has accepted that false assumption in interpreting subsection 7-6-228(c)(1). Rather than
decide the case based on a false assumption as to the meaning of the statute, I would hold
that the Commission misinterpreted the statute. The Court has reached the right result—
Weaver did not violate subsection 7-6-228(c)(1)—but for the wrong reason.
10 The principle that a court will not decide a case on a ground not presented by any
party is based on two important considerations. First, briefs and arguments are part of the
adversary process designed to educate the court concerning the relevant facts and applicable
law so that the court can make a fully informed decision. Second, as a matter of fairness, a
party should be given an opportunity to respond to the arguments asserted against its
position. A court that decides a dispute on a basis not presented by any party runs the risk
of making a decision that is not fully informed and may unfairly deprive the losing party of
an opportunity to rebut the rationale for the decision.
Neither of these considerations justify the decision here to base the interpretation of
a provision of the election code on a false assumption.
As to the first consideration, the facts are undisputed, and the statute is so clear and
simple that Court hardly needs briefs to decide its meaning. In fact, the point on which the
case turns—that subsection 7-6-228(c)(1) prohibits placing a political advertisement without
the “Paid for by” disclosure—is assumed rather than argued by the parties; and it is assumed
rather than explained by both three-judge opinions issued today. The Court attempts to
avoid deciding an issue—whether subsection 7-6-228(c)(1) prohibits placing an
advertisement without the “Paid for by” disclosure--that has not been argued, but the
attempt fails; if briefs are needed for the Court to see the truth on this pivotal issue, the
Court is flying blind. That issue has not been briefed, nor is it addressed in the opinions
issued today.
11 As to the second consideration, the Arkansas Ethics Commission is not a private party
with rights or interests at stake, so the fairness consideration does not apply to it in the same
way as it would to a private person. The Commission’s only concern is to decide the matters
presented to it fairly and in accordance with the law, so the best service that the Court can
render to the Commission is to provide a correct interpretation of the statutes that the
Commission must apply in the matters that it decides.
Even if the circumstances suggested that briefs were needed for the Court to be fully
informed, or that it might be unfair to the Commission to decide the case on a basis not
argued by the parties, I still would not base an interpretation of the statute on a false
assumption. If such circumstances were present, the Court could sua sponte direct the parties
to brief the issue or remand for further consideration by the Commission.
It should go without saying that the public interest demands that this Court do its
utmost to interpret statutes correctly.
We should not be deflected from the Court’s primary duty—to declare the law
faithfully and correctly––by an important but nonetheless secondary principle the reasons
for which do not apply here.
For these reasons, with utmost respect for this Court, I concur.
JOHN DAN KEMP, Chief Justice, dissenting. The majority opinion reverses in
part and vacates in part a decision by appellant Arkansas Ethics Commission (“the
Commission”) that appellee Susan Weaver violated Arkansas Code Annotated section 7-6-
228(c)(1) (Supp. 2019) by failing to include the requisite “Paid for by” disclosure in a
12 campaign advertisement. The majority concludes that “[t]he record demonstrates that
neither Weaver nor a member of her campaign staff ‘committed’ a violation or ‘placed’ an
ad without the appropriate disclosure,” but the words “committed” and “placed” do not
appear anywhere in section 7-6-228(c)(1)—a statute that this court must interpret on appeal.
For the following reasons, I respectfully dissent.
I. Commission’s Direct Appeal
A. Facts Relevant to the Direct Appeal
The following facts are relevant to my analysis and are largely omitted from the
majority opinion. During her 2018 campaign for Faulkner County Circuit Judge, Weaver
purchased a full-page advertisement from a monthly magazine, Faulkner Lifestyle. Weaver’s
campaign advertisement contained the following: (1) at the top, a banner running the width
of the ad stating “Elect Judge Susan Weaver For Circuit Court—Division 1”; (2) in the
center, Weaver’s photograph with the motto “Courtroom Experience Matters” next to a
smaller banner that stated “Elect Judge Susan Weaver Circuit Court Division 1”; and (3) at
the bottom, the sentence, “Learn more about Judge Susan Weaver at
JudgeSusanWeaver.com” with social-media icons underneath that statement. Weaver’s ad
did not include a “Paid for by” disclosure.
Prior to the ad’s publication, LeAnn Livingston, a staff member from Weaver’s
campaign, and Raegan Miller, an employee of Faulkner Lifestyle, exchanged a series of email
messages during the proofing process. On April 22, 2018, Miller wrote, “Hey LeAnn! Here
is the full page ad, let me know if you have any changes!!” The next day, on April 23,
13 Livingston responded, “I love it! Could we maybe just add the Facebook, Instagram and
Twitter icons on the bottom?” Miller replied, “Sure thing!” Later that afternoon, Weaver’s
staff added, “Please send me an invoice so I can get you paid!!” On April 24, at 4:14 p.m.,
Livingston sent another message stating, “It also needs to say paid for by the Committee to
Elect Judge Susan Weaver.” The record reflects that Weaver’s campaign did not ask to
review the ad before its publication, and the ad was published without the “Paid for by”
disclosure.
According to an affidavit from Brandy Strain-Dayer, the owner of Faulkner Lifestyle,
a “staff designer” at the magazine was informed by Weaver’s campaign that the “Paid for
by” disclosure needed to be included on the advertisement, but the magazine printed the
ad without the correction. The affidavit explained that the staff designer was no longer
employed at the magazine “due to many mistakes of this nature,” and Strain-Dayer accepted
fault for the ad’s omission.
On July 10, 2018, the Commission received a citizen complaint from Andrea Woods
against Weaver in her capacity as a circuit judge candidate, alleging, inter alia, that Weaver
had violated section 7-6-228(c)(1) by placing the advertisement in Faulkner Lifestyle without
the requisite “Paid for by” disclosure. After receiving notice of Woods’s complaint, Weaver
responded via email to the Commission, and on the specific allegation concerning the
Faulkner Lifestyle advertisement, she wrote,
[I]t is alleged that I failed to include the “paid for by” disclaimer in my campaign advertisement in the May issue of Faulkner County Lifestyle [sic]. I did not fail to include the language, rather the magazine did. I have attached
14 a copy of the email that was sent to the magazine asking them to add the language to the artwork that they had submitted for print. This was not my nor my campaign committee’s mistake, and I deny any wrongdoing.
Based on its investigation, the Commission voted to find probable cause that Weaver
had violated section 7-6-228(c)(1) by placing a campaign ad without the “Paid for by”
disclosure in the May 2018 edition of Faulkner Lifestyle. The Commission dismissed the
remaining claims against Weaver.
On February 11, 2019, after a public hearing, the Commission filed its final order
with the following findings of fact: (1) Weaver’s campaign ad was not camera ready, and
therefore went through Faulkner Lifestyle’s proofing process; (2) as part of the proofing
process, Faulkner Lifestyle sent the ad back to the campaign and asked if there were any
changes; (3) two days later, after a number of emails were exchanged, the campaign
requested that the ad state that it was paid for by the Committee to Elect Judge Susan
Weaver; and (4) the campaign did not ask to see a final copy of the ad showing that the
language had been added. The Commission made the following conclusions of law:
30. The Commission does not read Ark. Code Ann. § 7-6-228(c)(1) as requiring a culpable mental state in order to find a violation and issue a public letter.
31. In the event [that] Ark. Code Ann. § 7-6-228(c)(1) does require a culpable mental state in order to find a violation and issue a public letter, then the Commission finds that the failure of [Weaver] and/or her campaign to request to review a final copy of the ad in Faulkner Lifestyle constituted negligence.
32. [Weaver] committed a violation of Ark. Code Ann. § 7-6-228(c)(1) in her capacity as a candidate for Circuit Court Judge – Division 1, Faulkner County during the 2018 election cycle by placing a campaign ad in the May
15 2018 edition of Faulkner Lifestyle which did not include the “Paid for by” disclaimer required by statute.
33. With respect to [Weaver’s] violation of Ark. Code Ann. § 7-6- 228(c)(1), the Commission found no sanction should be imposed with respect to said violation, for good cause shown.
(Emphasis added.)
Pursuant to Arkansas Code Annotated section 25-15-212 (Supp. 2019) of the
Administrative Procedure Act, Weaver sought judicial review of the Commission’s findings
and conclusions in circuit court. Following a hearing, the circuit court entered an order on
November 20, 2019, vacating the Commission’s rulings and making findings of fact and
conclusions of law:
The facts of this case are not in dispute. An advertisement purchased by Weaver did not contain the “paid for” line despite Weaver’s request to include it. The publisher took full responsibility for the omission. The Commission found that there was just cause not to assess a penalty. However, Weaver challenges the conclusion that she committed a violation at all. ....
The Commission erred in holding that the standard of proof for violation of Ark. Code Ann. § 7-6-228(c)(1) is strict liability. The Court finds that there is no authority in the statutes to reach the conclusion that a violation of that provision may be determined by strict liability. The Commission’s conclusion is in violation of statutory provisions, in excess of its statutory authority and [is] an error of law.
The Commission further erred in its alternate holding that Weaver was negligent. There is no evidence in the record that Weaver was negligent. The conclusion that Weaver was negligent is not supported by substantial evidence of record and is arbitrary, capricious, or characterized by abuse of discretion.
The circuit court vacated the Commission’s ruling that Weaver committed a violation of
section 7-6-228(c)(1).
16 B. Arkansas Code Annotated Section 7-6-288(c)(1)
The critical question on appeal—whether Weaver violated the requirements set forth
in Arkansas Code Annotated section 7-6-228(c)(1) by failing to include the “Paid for by”
disclosure—is an issue of statutory interpretation. While the majority opinion couches this
question in terms of a substantial-evidence standard, this court has “acknowledged confusion
in prior cases regarding the standard of review for agency interpretations of statutes and
clarified the level of deference due: agency interpretations of statutes will be reviewed de
novo.” Am. Honda Motor Co., Inc. v. Walther, 2020 Ark. 349, at 5, 610 S.W.3d 633, 636
(citing Myers v. Yamato Kogyo Co., Ltd., 2020 Ark. 135, 597 S.W.3d 613).
It is the province and duty of this court to determine what a statute means. Id., 610
S.W.3d at 636. In considering the meaning and effect of a statute, this court construes it just
as it reads, giving the words their ordinary and usually accepted meaning in common
language. Id., 610 S.W.3d at 636. The interpretation of a statute will be based solely on the
clear meaning of the text. Id., 610 S.W.3d at 636. Thus, this court’s de novo review
mandates a strict statutory interpretation of section 7-6-228(c)—not the order of the
Commission.
Section 7-6-228(c) provides in full:
(c)(1) Campaign signs, campaign literature, and other printed campaign materials under this section shall clearly contain the words “Paid for by” followed by the name of the candidate, committee, or person who paid for the campaign sign, campaign literature, or other printed campaign materials.
17 (2) Subdivision (c)(1) of this section applies only to campaign signs, campaign literature, and other printed campaign materials created by or sponsored by a political candidate, the campaign of a political candidate, a political action committee, or an independent expenditure committee.
Because its meaning is plain, I view section 7-6-228(c)(1) as unambiguous. It clearly
states that “printed campaign materials . . . shall clearly contain the words ‘Paid for by’” on
the materials “followed by the name of the candidate, committee, or person who paid for the . . .
printed campaign materials.” (Emphasis added.) The word shall means mandatory compliance
unless it would lead to an absurd result. Vaughn v. Mercy Clinic Fort Smith Communities, 2019
Ark. 329, at 7, 587 S.W.3d 216, 221. Because Weaver’s advertisement did not contain the
statutorily required “Paid for by” disclosure, I conclude that its omission constitutes a
violation of section 7-6-228(c)(1).
Further, section 7-6-228(c) does not contain any language regarding one’s intent to
include or omit the requisite disclosure. Nor do I discern any language in section 7-6-228(c)
that provides a defense for “a political candidate, the campaign of a political candidate, a
political action committee, or an independent expenditure committee” in the event that the
disclosure is omitted. Ark. Code Ann. § 7-6-228(c)(2). Indeed, the majority has placed the
blame for the omission in Weaver’s purchased advertisement on the shoulders of Faulkner
Lifestyle’s publisher, who “don[s] the printer’s apron.” But the express language of section
7-6-228(c)(1) does not allow for such blame-shifting of a political candidate or her surrogates
listed in subdivision (c)(2). Indeed, once the Commission found that Weaver had violated
the terms of section 7-6-228(c)(1), it then proceeded to the second step of its inquiry by
18 finding that “no sanction should be imposed [against Weaver] with respect to said violation,
for good cause shown.” See Ark. Code Ann. § 7-6-218(b)(4) (Supp. 2019) (authorizing the
Commission to sanction after it “finds a violation”).
In sum, the Arkansas General Assembly has not seen fit to amend section 7-6-
228(c)(1) to include either a political candidate’s intent to omit the requisite disclosure or
her defense in failing to do so. In construing statutes, this court’s case law is replete with
assertions that it will not add words to a statute to convey a meaning that is not there. Our
Community, Our Dollars v. Bullock, 2014 Ark. 457, 452 S.W.3d 552 (citing McMillan v. Live
Nation Entm’t, Inc., 2012 Ark. 166, 401 S.W.3d 473). Furthermore, this court will not read
into a statute a provision not put there by the General Assembly. Id., 452 S.W.3d 552 (citing
Neeve v. City of Caddo Valley, 351 Ark. 235, 91 S.W.3d 71(2002)). Accordingly, I would
affirm the Commission’s ruling on section 7-6-228(c)(1) and reverse the circuit court’s order
on direct appeal.1
1 The Commission also argues that its alternative finding—that Weaver was negligent in failing to obtain a final proof of her campaign ad before it was printed in Faulkner Lifestyle—is supported by substantial evidence. Because I conclude that the Commission properly ruled that Weaver violated the statutory requirements of section 7-6-228(c)(1), I view the Commission’s second argument concerning its alternative ruling as moot.
It is worth noting that the concurring opinion largely defines its position based on this alternative, superfluous argument by incorporating terms such as, “charged with,” “found guilty,” “mens rea,” and “strict liability,” as if this were a criminal case. It is not. The record does not reflect that Weaver has been criminally charged under Arkansas Code Annotated section 7-1-103 (Supp. 2019) or any other statute.
19 II. Weaver’s Cross-Appeal
I would therefore reach the merits of Weaver’s cross-appeal. Weaver contends that
section 7-6-228 and the Commission’s regulations are unconstitutional, both facially and as
applied, in “mixing roles of probable cause finder, negotiator, and adjudicative entity.” She
contends that her due-process rights, pursuant to the Fourteenth Amendment of the United
States Constitution and article 2, section 8 of the Arkansas Constitution, were violated by a
combination of the Commission’s investigative and adjudicatory functions.
A. Facts Relevant to the Cross-Appeal
Prior to the Commission’s January 28, 2019 public hearing, Weaver moved to
declare the Commission’s procedures unconstitutional. Weaver’s motion sought a finding
that the statutes and regulations governing the Commission’s procedures were
unconstitutional as applied to Weaver. Specifically, she contended that they violated her
rights of due process because the Commission determines probable cause, makes a settlement
offer, and adjudicates the issue in a final hearing. The Commission denied Weaver’s motion,
and the circuit court subsequently ruled that “[t]he procedures by which the Arkansas Ethics
Commission operates do not violate federal and state constitutional guarantees of due process
of law.” She asserts that the Commission’s procedures violate federal and state constitutional
rights of due process because “an entity which is the accusing entity and the negotiating
entity cannot be the adjudicatory entity.”
20 B. Merits of the Cross-Appeal
This court must review the decision of the circuit court because an administrative
agency lacks the authority to rule on a constitutional argument. Landmark Novelties, Inc. v.
Ark. State Bd. of Pharmacy, 2010 Ark. 40, 358 S.W.3d 890.
Relying on the Supreme Court of the United States, this court has recognized that
the combination of investigative and adjudicative functions does not, without more,
constitute a due-process violation. C.C.B. v. Ark. Dep’t of Health & Human Servs., 368 Ark.
540, 546, 247 S.W.3d 870, 874 (2007) (citing Withrow v. Larkin, 421 U.S. 35, 47 (1975)).
In C.C.B., this court stated,
The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.
Id., 247 S.W.3d at 874 (quoting Withrow, 421 U.S. at 47). In C.C.B., we stated that while
the Court in Withrow cautioned that the dual functions of investigation and adjudication
could certainly give rise to a due-process violation, it made clear that such a scheme does
not automatically result in such a violation. Id., 247 S.W.3d at 874. Further, an appellant,
in attacking an administrative procedure on the basis of a denial of due process, has the
burden of proving its invalidity. Omni Farms, Inc. v. Ark. Power & Light Co., 271 Ark. 61,
21 65, 607 S.W.2d 363, 365 (1980). A bare allegation that a constitutional right has been
invaded will not suffice. Cloird v. State, 357 Ark. 446, 450, 182 S.W.3d 477, 479 (2004).
Here, Weaver alleged in her motion to the Commission that “an entity which is the
accusing entity and the negotiating entity cannot be the adjudicatory entity” and made bare
allegations of bias and the appearance of impropriety without specific facts to support these
allegations. Because she has failed to meet her burden, I conclude that Weaver has not
demonstrated that she was denied due process under either the Fourteenth Amendment of
the United States Constitution or article 2, section 8 of the Arkansas Constitution. Thus, I
would hold that the circuit court properly ruled that the Commission’s procedures do not
violate federal and state constitutional guarantees of due process.
III. Conclusion
The majority’s holding presents a slippery slope on which present and future judicial
candidates run a dangerous risk of falling into ethical violations for any alleged inadvertent
omission relating to the funding of political campaigns and their advertisements. In this
instance, the law is clear, and I am bound to follow it.
I would affirm the Commission’s decision and reverse the circuit court’s order on
direct appeal. On cross-appeal, I would affirm the circuit court’s ruling.
WYNNE, J., and Special Justice TIFFANY BROWN join.
Leslie Rutledge, Att’y Gen., by: Kesia Morrison, Ass’t Att’y Gen., for appellant/cross-
appellee.
Jeff Rosenzweig, for appellee/cross-appellant.