Thursday, March 4, 2021

Paid For By

The Arkansas Supreme Court reversed a finding by the state Ethics Commission against a judicial candidate for allegedly omitting a "paid for by" reference in a campaign print advertisement

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.

No violation

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 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

A concurring opinion

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. The Commission likewise 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.

Chief Justice Kemp dissented 

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 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.

Statutory interpretation

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.

The Chief Justice would address the Constitutional claim. (Mike Frisch)

Judicial Ethics and the Courts | Permalink


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