MATTHEW BURNSIDE v. ARKANSAS JUDiCIAL DISCIPLINE AND DISABILITY COMMISSION

2021 Ark. 147

• Court: Supreme Court of Arkansas
• Decided: June 17, 2021
• Status: Published

Opinion

Digitally signed by Susan Williams Reason: I attest to the accuracy and integrity of this document Cite as 2021 Ark. 147 Date: 2023.06.20 SUPREME COURT OF ARKANSAS 15:04:16 -05'00' No. CV-21-135 Opinion Delivered: June 17, 2021 MATTHEW BURNSIDE

PETITIONER PRO SE PETITION TO PROCEED IN FORMA PAUPERIS V.

ARKANSAS JUDICIAL DISCIPLINE AND DISABILITY COMMISSION

RESPONDENT

PETITION DENIED.

ROBIN F. WYNNE, Associate Justice

Petitioner Matthew Burnside, proceeding pro se, petitions to proceed in forma

pauperis with respect to a petition for writ of certiorari tendered to this court. We deny the

petition.

In 2020, Burnside submitted a complaint to the Judicial Discipline and Disability

Commission concerning the circuit judge who presided at his criminal trial in 2014. The

complaint was dismissed on February 28, 2021. Burnside tendered a petition for writ of

certiorari to complete the record and to review the Commission’s disposition of the

complaint with the petition to proceed in forma pauperis, seeking to file the petition for

writ of certiorari without remitting the required filing fee. This court is authorized to review

judicial-discipline matters filed with the Commission pursuant to amendment 66 of the

Arkansas Constitution, in accordance with Arkansas Code Annotated sections 16-10-401

through -411 (Repl. 2010 & Supp. 2015), and Rules 1 through 15 of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission. Perroni v. Sachar, 2017 Ark.

59, 513 S.W.3d 239.

A complaint filed with the Commission is a civil matter. Brown v. Jud. Discipline &

Disability Comm’n, 2013 Ark. 319 (per curiam). Rule 72 of the Arkansas Rules of Civil

Procedure conditions the right to proceed in forma pauperis in a civil matter on, among

other things, the court’s satisfaction that the alleged facts indicate a colorable cause of action.

Boles v. Huckabee, 340 Ark. 410, 12 S.W.3d 201 (2000) (per curiam). A colorable cause of

action is a claim that is legitimate and may reasonably be asserted given the facts presented

and the current law or a reasonable and logical extension or modification of it. Id.; see also

Breeden v. Kelley, 2018 Ark. 299, 557 S.W.3d 264. Rule 72 conditions the right to proceed

in forma pauperis on both indigency and the court’s satisfaction that the facts alleged establish

a colorable cause of action. Ark. R. Civ. P. 72(c); see Berger v. Bryant, 2020 Ark. 157, 598

S.W.3d 36.

In the petition to proceed in forma pauperis, Burnside avers that he is indigent and

that he is not bringing the petition for a frivolous or malicious purpose. In Stanley v. Coomer,

2014 Ark. 338, at 2, 439 S.W.3d 54, 55 (per curiam), we held that this statement, in itself,

does not constitute a showing of a colorable cause of action such that the petitioner should

be allowed to proceed at public expense. Burnside provides no facts pertaining to the

substance of the tendered petition for writ of certiorari and does not demonstrate that there

is a colorable cause of action in the proceeding. When no fundamental right is involved,

filing fees do not violate due process. Hall v. Bolin, 2016 Ark. 370 (citing Partin v. Bar of

Ark., 320 Ark. 37, 894 S.W.2d 906 (1995)).

2 Burnside must remit the fee to file the petition for writ of certiorari within thirty

days of this decision if he desires to proceed with the tendered petition. See Young v. Black,

366 Ark. 198, 234 S.W.3d 384 (2006) (per curiam).

WOMACK, J., concurs in part and dissents in part.

SHAWN A. WOMACK, Justice, concurring in part and dissenting in part. I

agree that Matthew Burnside failed to meet the requirements to proceed in forma pauperis

under Rule 72 of the Arkansas Rules of Civil Procedure. I must respectfully dissent,

however, from the majority’s decision not to correct the constitutional conflict that exists

with regard to the Judicial Discipline and Disability Commission’s authority to act. The

tendered petition for writ of certiorari seeks review of a decision made by a commission

whose constitutional authority to exist and function expired two decades ago with the

passage of Amendment 80 to the Arkansas Constitution. Rather than continue to give

credence to a commission whose constitutional authority has been revoked, I would dismiss

Burnside’s underlying petition and exercise this court’s authority to create a constitutionally

valid entity for resolving judicial complaints. Burnside should then be permitted to file his

claim with the newly created entity.

The Commission was created as a function of the state’s judicial powers under the

authority of Amendment 66 to the Arkansas Constitution, which was passed by voters in

1988. Amendment 66 provides that “[u]nder the judicial power of the State, a Judicial Discipline

and Disability Commission is established[.]” Ark. Const. amend. 66(a) (emphasis added).

From its inception, the Commission was responsible for initiating or receiving complaints

3 concerning judicial misconduct, conducting investigations and hearings, and making

recommendations to this court. See Ark. Const. amend. 66(b)–(c). Even when allegations

of ethical violations by judges or judicial candidates are brought to the attention of this

court, a referral has historically been made by opinion or letter to the Commission.

Amendment 66 remained good law until voters adopted Amendment 80 in 2000,

which reads in relevant part:

The judicial power is vested in the Judicial Department of state government, consisting of a Supreme Court and other courts established by this constitution.

Ark. Const. amend. 80, § 1 (emphasis added).

No other provision of the Constitution of the state of Arkansas shall be repealed by this amendment unless the provision is in irreconcilable conflict with the provisions of this amendment.

Ark. Const. amend. 80, § 22(G).

Amendment 66 created the Commission under the judicial power of the state.

Amendment 80, the later adopted amendment, vested the judicial power solely and

exclusively in the judicial department of state government, which it defines as a supreme

court and other courts established by the constitution. Our constitution, as it now exists,

does not divide judicial power between the courts and the Commission, but rather it

unequivocally vests it in the courts alone.

Because Amendment 66 purports to exercise judicial power in the form of the

Commission, it is irreconcilably in conflict with Amendment 80, § 1. Moreover, under

Amendment 80, § 22(G), Amendment 66 was repealed upon the effective date of

Amendment 80 because the existence of the Commission is in irreconcilable conflict with

4 Amendment 80 due to the unconstitutional exercise of judicial powers by an entity other

than the courts. The Commission should be dissolved, effective immediately.

In order to protect the public and the integrity of our judicial system, there must be

a structure in place to address compliance with ethical rules for judges and judicial

candidates. Under Amendment 80, § 4, this court has general superintending control over

the courts of the state. It is thus our responsibility to create a new entity and process for

handling compliance in a way and through an entity that is consistent with our state’s

constitution. We should immediately begin the process of creating a constitutionally valid

entity to replace the Commission that will oversee the ethical rules for judges and judicial

candidates and compliance with such rules. We should also order the immediate termination

of all funding of the Commission and its activities, as those funds are currently being spent

in an unlawful manner. We should further request the General Assembly to set aside those

funds that have been appropriated for use by the Commission, and designate that

appropriation for use by a new and lawful entity to be created by this court under our

judicial powers and superintending control over the courts of this state as granted by

Amendment 80.

I respectfully concur in part and dissent in part.

Matthew Burnside, pro se petitioner.