The headline in today’s paper proclaimed: “Trump rips inquiry as ‘coup’ attempt.” Ark. Democrat-Gazette, 12/18/19. The context is President Trump’s letter to Speaker Pelosi regarding the impeachment vote likely to happen today or tomorrow in the House of Representatives.

I’ve tried to avoid public pronouncements on the daily insults President Trump offers to western civilization. Besides, I’m not adept at creating clever memes, and it seems no one has time today for careful debate about weighty issues. Hurling insults and what-about-isms are the preferred modes of communicating. But this one can’t pass without comment.

A key to our participatory form of government is a common knowledge and understanding of the most basic provisions in our nation’s laws and Constitution. The federal courts have recognized that such knowledge is not common or understood by many citizens, and that lack of knowledge is a threat to our democratic republic. They have launched a civics education program and many federal judges have committed to outreach programs to teach basic civics concepts to students. In solidarity with that concern and those efforts, here is today’s civics lesson. It is objective, factual, and definitional. No opinion is offered. It requires no nuance or point-of-view. Today’s lesson is the definition of two important words: coup and impeachment.

A coup is short-hand for the French phrase coup d’ etat. It is a sudden and great change in government carried out violently or illegally by the ruling power. Compact Oxford English, New Ed. Classic examples of coups include Napoleon, Franco, Quaddafi, and Pinochet. All of those involved using military force to depose a civil government resulting in dictatorial powers concentrated in one person indefinitely.

Impeachment in this context is a remedy specifically provided in the Constitution: “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. Constitution, Article II, section 4. Article 1, section 2 says the House shall have the sole power of impeachment.

By voting on articles of impeachment, the United States House of Representatives is taking an action specifically reserved to it under the Constitution. That is not a coup. A coup is sudden and great change in government carried out violently or illegally by the ruling power.  Here, the only acts of violence are the rhetorical assaults by partisan zealots.  Congressional action to impeach a president cannot, by definition, be a coup (an illegal act) where the power of impeachment is specifically granted to Congress by the United States Constitution.

So despite today’s headlines and the President’s misuse and abuse of the two words (impeachment and coup), the action the House of Representatives will take this week and any subsequent action by the Senate are not a coup. No matter how passionately one agrees or disagrees with the wisdom of impeachment, it is by definition not a coup.

The University of Arkansas School of Law will host the 2nd Annual Corbin Symposium sponsored by the Pulaski County Bar Foundation March 28-29, 2019 in Fayetteville.

 https://pcbf.pulaskibar.com/corbin-symposium/ 

The two-day program is focused on appellate practice (both state and federal) but will include some fascinating and informative speakers that have much to offer beyond appellate practice tips.  It includes: United States Circuit Judges from the 5th, 6th, 8th, and 10th Circuits; state court appellate judges from Arizona, Minnesota, and Arkansas; experts on legal writing; one of the country’s top-ten appellate lawyers (Kannon Shanmugan) https://www.paulweiss.com/professionals/partners-and-counsel/kannon-k-shanmugam; and the dean of legal bloggers, Howard Bashman. https://howappealing.abovethelaw.com

There is also an opportunity to meet with the speakers and fellow attendees at a reception Thursday evening (you can register to attend the reception even if you cannot attend the program).   The program includes 12 hours of CLE including 1 ethics hour.

The Symposium was created to honor the memory of Justice Donald L. Corbin and his contributions to the legal profession.  Funds raised by the Symposium will be used to endow scholarships at the University of Arkansas Leflar Law Center and UA Little Rock Bowen School of Law and to encourage training and education in Appellate Advocacy.

Register here: https://customxm.lpages.co/pcbf-symposium-registration-em/

If you cannot attend, please consider donating to the Scholarship Fund here: https://pcbf.pulaskibar.com/donate/

I appreciate the Arkansas Lawyer publishing my article on Judicial Campaign Finance.   It is a timely and complex issue.  There are reforms that will help, but enacting those reforms will require leadership from judges and lawyers.  Here’s a link to the current issue, scroll to page 22 for the article.

Anyone who follows appellate decisions in Arkansas has observed the particular affinity the Arkansas Court of Appeals has for the finality doctrine. Stated simply, absent some specific exception, there must be a final order as to all claims and all parties before an appeal can be heard. The oft-repeated reason is that the appellate courts want to decide a case on appeal once, and avoid piece-meal appeals.   See, e.g., Moore v. Moore, 2015 Ark. App. 115; Youngblood v. Youngblood, 2015 Ark. App. 121; and Burton v. Templeman, 2015 Ark. App. 101.   Some (including me) would argue that the Court of Appeals is applying finality too rigidly.   A case today suggests the Arkansas Supreme Court might agree.

In Bank of the Ozarks v. Cossey, 2015 Ark. 367, the Arkansas Supreme Court took on review a case that had been previously decided by the Arkansas Court of Appeals.   The Court of Appeals dismissed the appeal for lack of a final order.   Their reasoning was:

“In the present case, the circuit court declared the Bank to be trustee of the Hamilton Living Trust and ordered the Bank to provide Cossey with an accounting. The accounting has yet to be performed and will necessarily involve future actions by the Bank, as well as future oversight and rulings by the circuit judge. The court’s order therefore contemplates further action by a party or the court and is not final and appealable.”

Bank of the Ozarks v. Cossey, 2014 Ark. App. 581, 3, 446 S.W.3d 214, 216 (2014), reh’g denied (Dec. 10, 2014) overruled by 2015 Ark. 367.

The Arkansas Supreme Court disagreed:

“The circuit court’s order was appealable as a final judgment or decree. See Ark. R. App. P.–Civ. 2(a)(1) (2014). For a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy; thus, the order must put the trial court’s directive into execution, ending the litigation, or a separable branch of it. Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999). Such is the case here. A single petitioner (Cossey) brought a single claim (accounting) against a single respondent (the Bank). After a hearing, the circuit court granted the petition and ordered the Bank to perform an accounting. Thus, the parties were dismissed from the court, the action was discharged, and the rights to the subject matter were concluded.”

Bank of the Ozarks v. Cossey, 2015 Ark. 367 at note 1.  Here is a link to the full decision:

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/335626/Electronic.aspx

Many cases leave ministerial acts or future obligations open, even after the disputed issues in the case are fully decided.   Finality should not be an impediment to an appeal when the issues central to the case have been decided.   I’m encouraged that the Supreme Court agrees.

I blogged about this case in January.   https://reporteddecisions.com/2015/01/17/free-speech-vs-judicial-ethics/

Today, the U.S. Supreme Court affirmed the sanctions levied against a judicial candidate for violating Florida’s rules prohibiting judicial candidates from directly soliciting campaign contributions.  Like most modern Supreme Court decisions, it was a close-call (5-4) and it is a maze of majority, concurring, and dissenting opinions.  I have not analyzed them fully yet.  But I am optimistic that this holding may suggest a willingness to allow states to hold judicial elections to a higher standard than other types of elections without running afoul of the First Amendment.  Here’s the first page of the actual decision, with a link to the rest of the decision.

I have been following the case of Earls v. Harvest Credit.  It was decided by the Arkansas Court of Appeals, but then taken on review by the Arkansas Supreme Court.  Their decision was released last week.   It was a simple collection case on an unpaid credit card debt.  But this is the kind of decision that is difficult to explain to a non-lawyer because it seems to defy common sense.

The form summons that started the case included the wrong time period for incarcerated individuals to respond to the lawsuit.  But the defendants were not incarcerated.  The summons notified them correctly of the time they had to respond.  But they filed no response.  There does not seem to be any dispute that they owed the debt.  Nonetheless, the Supreme Court held that the defective summons made the judgment invalid.

David Williams at Kutak Rock in Little Rock authored an excellent blog post on this decision.  With his permission, I am linking to it here:

https://www.linkedin.com/pulse/ark-court-reverses-default-judgment-due-incorrect-summons-williams

I encourage you to read the blog post and the majority, concurring, and dissenting opinions, and ask yourself if this outcome comports with Rule 1 of the Arkansas Rules of Civil Procedure (2015).

The U.S. Supreme Court will hear arguments Tuesday (1/20/15) on a case pitting a judicial candidate’s First Amendment rights against the judicial code of ethics limiting a candidate’s role in campaign fundraising.   The case is Williams-Yulee v. Florida Bar.  It will be the first time the court has considered restrictions on judicial campaigns since 2002.

Most states that elect judges (and the majority of states do elect judges) restrict the candidate from taking a direct role in soliciting campaign contributions.  See, e.g., Rule 4.4, Ark. Code of Judicial Conduct (2014).  Fundraising is outsourced to a committee, and a Chinese wall should separate the candidate from knowledge about his or her contributors to avoid claims of bias. However, in practice that wall is often transparent because candidates are questioned publicly and in the press about their donors, and campaign finance reports disclosing donors are publicly available.

In the last case before the high court addressing the tension between judicial campaign restrictions and free speech, the Court held (in a 5-4 decision) that judicial ethics rules that prohibit a candidate from announcing their views on disputed legal and political issues did not pass strict scrutiny and therefore violated a candidate’s first amendment rights. Republican Party of Minnesota v. White, 536 U.S. 765 (2002).

Reading the White case together with Citizens United v. FEC, 558 U.S. 310 (2010) (the first amendment prohibits government regulation of independent political expenditures by non-profit corporations — which has been over-simplified to the concept that money equals speech), it seems likely the Supreme Court is poised to strike down another limitation that burdens judicial candidates’ free speech rights.  Fans of judicial restraint and decorum (and incumbent judges) will argue that this further opens the floodgates, turning judicial elections into ugly partisan contests that undermine confidence in the impartiality, integrity, and independence of the judicial branch. Adding to the dynamics, the federal courts (who are appointed by the president and never stand for election or retention) are perhaps unsympathetic to the plight of most state court judges who must be popularly elected, or periodically survive retention elections.

The decision in Williams-Yulee will fuel the debate over election vs. appointment of judges by at least partly answering the question: Is there is any meaningful way that state judicial races can be held to a higher standard than the superficial and hyper-partisan campaigns for congress, president, governors, and the like — without an undue burden on a judicial candidate’s First Amendment rights?

The argument in Williams-Yulee will be available on the Court’s website on Friday, January 23rd at this link: http://www.supremecourt.gov/oral_arguments/argument_audio.aspx

Here’s an article discussing the facts of the case in more detail: http://www.mcclatchydc.com/2015/01/16/253383/free-speech-or-conflict-high-court.html

For another discussion of this case, see Mark Stern’s provocative article in Slate — Justice for Sale: The Supreme Court is Poised to Make Judicial Elections Even More Corrupt.

http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/judicial_elections_and_free_speech_the_supreme_court_s_williams_yulee_case.html

Today the Arkansas Supreme Court decided Steward v. Kuettel, 2014 Ark. 499.   In this case, the trial court entered an order, pursuant to Rule 4(e)(5) allowing the plaintiff to serve the defendant by email, with a tracking pixel to confirm that the email and attached summons and complaint were received.  In support of this “other service,” the plaintiff recounted that attempts to serve by mail at the defendant’s last known address had been unsuccessful, but that other sources had confirmed the defendant was using a particular email address (that was published on a website that was the subject of the lawsuit).

The Supreme Court did not rule-out the possibility that “other service” could include service by email.

“Assuming, without deciding, that service of process by email may be allowed under
Rule 4(e)(5), we cannot say that, under the facts of this case, the alternative method of
service crafted by the circuit court was reasonably calculated to give actual notice of the
lawsuit.”

Instead, the decision turns on the fact that while the tracking pixel did tend to confirm that the email was received and opened, it did not establish that the defendant actually opened the summons and complaint that were attached to the email as PDFs.

The Supreme Court reversed the trial court’s refusal to set aside the default judgment, holding:

“The alternative service of process in this case was insufficient because it was not
reasonably calculated to give actual notice to Steward. A default judgment is void under Rule
55(c)(2) if the defendant was improperly served under Rule 4. E.g., S. Transit Co. v. Collums,
333 Ark. 170, 175, 966 S.W.2d 906, 908 (1998). Because the default judgment was void
because of insufficient service of process, the circuit court erred in denying Steward’s motion
to set aside default judgment.”

This leaves open the possibility that the Court may approve initial service of a summons and complaint by email, but the plaintiff will have the burden of conclusively proving the summons and complaint were actually received and opened by the recipient.

Here’s the full text of the case: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/330359/Electronic.aspx

Two recent examples of judicial misconduct, with two very different results.

Hercules and the Umpire on Judge Fuller:  http://herculesandtheumpire.com/2014/09/11/if-judge-fuller-wont-resign-the-chief-judge-of-the-circuit-and-the-circuit-judicial-council-should-strip-of-him-handling-cases-for-as-long-as-the-law-allows/

And Max Brantley on Judge Maggio: http://www.arktimes.com/ArkansasBlog/archives/2014/09/11/supreme-court-orders-immediate-removal-of-judge-maggio-from-bench

You will see much in the headlines today and tomorrow about this case.  The media will attempt to condense this 40 page decision into a few soundbites.   If you want to digest the whole decision for yourself, here it is:

Baskin v. Bogan and Wolfe v. Walker

If you don’t have the inclination to read the 40 page opinion by Judge Posner (joined by Judges Williams and Hamilton), here are few excerpts:

“We’ll see that the governments of Indiana and Wisconsin have given us no reason to think they have a “reasonable basis” for forbidding same-sex marriage. And more than a reasonable basis is required because this is a case in which the challenged discrimination is, in the formula from the Beach case, “along suspect lines.” Discrimination by a state or the federal government against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discriminatory law or policy constitutionally suspect.”

*****

“Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.”

*****

“The district court judgments invalidating and enjoining these two states’ prohibitions of same-sex marriage are

                                                            AFFIRMED.”

*****

You may hear emphasis that this was merely a decision of a three-judge panel.  That is true.  In theory, the entire Seventh Circuit could choose to hear this en banc and issue a different decision.   That is possible, but unlikely.  The authoring judge, Richard A. Posner, is a Reagan appointee, and a rock-star among U.S. circuit judges.  You may also hear that this decision is not the law of the land until the U.S. Supreme Court weighs in.  That is not quite right.  It is now the law of the land in Wisconsin, Illinois and Indiana.  And it is persuasive (but not necessarily controlling) authority in any other court that faces the issue.