White v. Priest

73 S.W.3d 572, 348 Ark. 135
Supreme Court of Arkansas·Decided May 23, 2002·No. 02-284·Published·Cited by 9 cases

Opinion

Tom Glaze, Justice.

On March 26, 2002, petitioner, Robert White, filed a petition captioned "An Original Action for Immediate Review and Such Other Relief to Which He May be Entitled under Amendment 7 to the Arkansas Constitution and its Implementing Act 877 of 1999 (codified at Ark. Code Ann. §§ 7-9-501 -507 (Repl. 2000)) and under Art. 16, § 13 of the Arkansas Constitution.” In his petition, White names as respondents: all Supreme Court Justices, individually and in his or her official capacity; the Secretary of State, the Attorney General, and the State Treasurer, in their official capacities; the Department of Finance and Administration and Revenue Commissioners, in their official capacities; and named members of the State Board of Election Commissioners. In his petition, White sets out a number of counts which we consider in the order he presents them.

In his Count I, White requests this court to immediately review the Secretary of State’s Declaration issued on February 27, 2002, whereby, after consulting with the Attorney General, she concluded the popular name and ballot title contained in an initiative petition submitted by White were fair and accurate and facially valid. That initiative petition contains a proposed amendment to cap the salaries and regulate benefits of all state officers and employees who are paid in whole or in part from state or local taxes and fees, fines, penalties, tuition, or rents of state and local property. The salaries would be limited to $100,000 and the fringe benefits could not exceed the amount of 25% of the “direct salary.” Before the Secretary of State issued the Declaration, the Attorney General had delivered an opinion, approving the popular name and ballot title of White’s proposed amendment. The Declaration and Attorney General’s opinion are marked Exhibits 1 and 2, respectively. Significantly, the Attorney General added a caveat in his opinion concerning particular hazards attendant to lengthy and complex proposals, such as the one submitted. In doing so,the Attorney General pointed out that, with any proposed amendment of considerable length and complexity such as White’s, the sponsor runs the risk of a challenge and a finding by the court that the ballot is unacceptable, either because it is too “complex, detailed, and lengthy,” or because it has “serious omissions.”

Pursuant to Ark. Code Ann. § 7-9-506, White seeks review of the Secretary of State’s Declaration and requests a declaratory judgment, finding White’s ballot title and popular name sufficient. We grant review and direct this court’s clerk to establish an expedited and appropriate briefing schedule for all parties, including amici curiae briefs, if any, permitted under Ark. Sup. Ct. R. 4-6. See also Stilley v. Priest, 341 Ark. 329, 16 S.W.3d 251 (2000).

Before leaving this count raised by White, we note his “motion for recusal” filed on March 28, 2002, wherein he requests the recusal of all supreme court justices. White asserts that, because of his proposed amendment limiting salaries and other benefits of public servants, including those of the justices, there is an appearance of bias on the part of the justices since they have a. financial interest in this matter that requires our recusal. White asks us to direct the Governor to appoint disinterested judges who have no interest in higher taxes or high salaries for public servants, and who are not employed by the State or local government. White further claims each justice is a defendant from whom money damages are sought.

White’s claim is rather unclear, but he seems to be suggesting that the justices could be liable for illegal exactions in the nature of salaries received that exceed caps or limitations under the amendment he proposes. In this respect, he generally requests injunctive relief as well. •

White’s claim is not only premature, it is also a claim for illegal exactions under Ark. Const. art. 16, § 13, and can only be commenced in a trial court; such a suit cannot be commenced in the appellate courts. See Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988). White offers no brief, citation of authority, or argument to support his underlying argument for the justices’ recusal, and we are unaware of any. Thus, this court is without original jurisdiction to hear any of the alleged claims for illegal exactions, and we dismiss Count 1.

Even if this court had original jurisdiction to initially consider a claim based on illegal exactions, the justices still would be empowered and duty bound to consider and decide these issues White strives to raise. Under Ark. Code of Judicial Conduct Canon 3(E)(1), while a judge must disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, the “Rule of Necessity” may override the rule of disqualification. For example, a judge might be required to participate injudicial review of a judicial salary statute. See Commentary to Canon 3(E)(1); see also Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges § 20.2.2, at 591-592 (1996) (the Rule of Necessity is most likely to be invoked in situations where the filing of a suit whose resolution will directly affect the pecuniary well-being of judges as a whole, such as a suit seeking to increase judicial pay or retirement benefits); and Jeffery M. Shaman et al., Judicial Conduct and Ethics § 4.03, at 111-112 (3d ed. 2000).

In addition, we point out that Ark. Const. art. 7, § 9, in pertinent part, provides that when all or any of the justices are disqualified, the Governor must immediately commission the requisite number of men (or women) learned in the law to sit in the trial or determination of the supreme court’s cases. In other words, this court does not direct who the Governor commissions to perform his duties as a justice, like White suggests in his motion. More important, it is significant to mention that in the review White seeks here, the Governor would have the same or similar conflict White asserts the justices have, since there are countless employees in the executive branch of government that are paid salaries exceeding the $100,000 cap established under White’s proposal. See Acts 4, 234, 1238, 1612, 1636, 1638, 1668, 1669 of 2001. Here, each justice, individually, rejects White’s motion to recuse under the “rule of necessity.”

In his Count 2, White requests us to review the Secretary of State’s Declaration issued on February 27, 2002, whereby, after consulting with the Attorney General, she declared the popular name and ballot title on White’s Arkansas Prison System Amendment proposal to be fair and accurate and facially valid. As was the case in the “salary cap” proposal, the Attorney General’s opinion issued on January 20, 2002, added a caveat that particular hazards exist because of the length and complexity of White’s ballot title. We grant review, and as with the “salary cap” proposal, we direct the clerk to establish an appropriate briefing schedule for all parties, including amici curiae briefs authorized, if any, under Ark. Sup. Ct. R. 4-6.

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White v. Priest, 73 S.W.3d 572, 348 Ark. 135 (Ark. 2002).

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