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Lawyers: Party's refusal to certify candidate may not hold up Tuesday, Jul 22, 2008 By John Lyon Arkansas News Bureau LITTLE ROCK - The state Democratic Party's refusal to certify Dwayne Dobbins of North Little Rock as a Democratic candidate for state representative may not stand up to a legal challenge, lawyers said Monday. A proposal by House members that would block Dobbins from serving may be less vulnerable to a challenge, some said. The state Democratic Party changed its rules Saturday to disqualify anyone who has resigned from public office as part of a plea agreement to avoid felony prosecution from being certified for the Democratic ballot. The party then refused to certify Dobbins, a former state House member, for the November ballot based on the rule change. Texarkana lawyer and Democratic state Rep. Steve Harrelson said a 1994 state Supreme Court ruling suggests the party's action may be vulnerable to a court challenge. Fayetteville lawyer Dan Ivy sued the state Republican Party after the party refused to certify him as a candidate in the 1994 attorney general's race. The party chose not to certify Ivy after he was convicted in municipal court of third-degree battery, a misdemeanor, against his wife. "Judge (Chris) Piazza back in the Pulaski County Circuit Court affirmed it, but he was overturned at the Supreme Court, so that concerns me a little bit about the party's actions," Harrelson said. In a 4-3 decision, the high court ruled in Ivy's case that state law allows a political party to vacate a nomination "for good and legal cause," but the party cannot do so without seeking a court order. "Because the reason (good and legal cause) for vacating a nomination is defined by state law, it is compelling that a judicial, rather than a political, determination be made" as to whether the definition applies, the court said, noting a 1964 case in which it found that if a political party had the power to vacate a nomination, "the door would be opened wide for corrupt and partisan action." Ivy said Monday that Dobbins may have a good case for getting the party's action overturned. "If he paid his fee, if he complied with the rules of the party, he should not be thrown off the ballot, period," Ivy said. Dobbins has referred questions to his legal advisor, attorney Leon Johnson of Little Rock. Johnson did not immediately return calls seeking comment Monday. Jonesboro lawyer Benton Smith, the Democratic Party's legal counsel, said Monday there are "many differences" between Ivy's situation and Dobbins'. He declined to elaborate. One difference is that unlike Ivy, Dobbins previously resigned from the Legislature as part of a plea agreement with prosecutors. Prosecutors said Dobbins fondled a teenage girl. They originally charged him with felony sexual assault but plea-bargained the charge down to a misdemeanor, and Dobbins resigned in 2005 as part of the plea deal. Dobbins filed to run for his old House seat on the last day of the filing period in March. He has no Republican opponent, but the Green Party has nominated Richard Carroll for the office and Clinton R. Hampton filed paperwork last week to run as a write-in candidate. Harrelson said despite the differences in Ivy's case, "I think it's analogous enough that it could apply." Meanwhile, House Speaker Benny Petrus, D-Stuttgart, and incoming House Speaker Robbie Wills, D-Conway, said Monday there is overwhelming support among House members for a proposed rule change that would deny membership in the House to anyone who has resigned from public office as part of a felony plea deal. The House could vote on the matter in a caucus in early August, they said. Harrelson said that although he had concerns about the Democratic Party's action Saturday, he believed similar action by the House would be supported by the constitution and would stand up to a court challenge. The state constitution states that each house of the Legislature "shall be the sole judge of the qualifications, returns and elections of its own members." John DiPippa, a law professor at the University of Arkansas at Little Rock, said in an interview last week that because of the principle of separation of powers, it may not be proper for the judicial branch to have a say in how the Legislature determines eligibility. "It could very well be that the answer is the House gets to do this, because if you let a court decide, then you'd essentially be having judges determine who sits in the legislative body," he said. |
