LITTLE ROCK —A lawmaker quoted from a classic movie to describe an impasse between legislative and judicial branches over an audit.
"In essence, what we have is a failure to communicate between these two branches of government," said Sen. Linda Chesterfield, D-Little Rock. "I think that’s part of the problem."
The failure-to-communicate line was voiced by the Strother Martin character in "Cool Hand Luke," but neither side in the state dispute is suggesting that anyone "spend the night in the box" for any misdeeds. In fact, lawmakers are hoping to remedy the problem in the upcoming session rather than allowed it to go to the courts.
The issue came to light last month when the Legislative Joint Auditing Committee was briefed on a state audit questioning the state Supreme Court’s legal authority to create 15 positions and use attorney license fees to pay the employees’ salaries and create a retirement system for them.
The audit said that Article 16, Section 4 of the Arkansas Constitution gives the General Assembly the authority to set the number and salaries of the clerks and employees of the different departments within state government.
Supreme Court Clerk Leslie Steen and J.D. Gingrich, director of the Administrative Office of the Courts, attended the October audit committee meeting but said little about the practice, saying they couldn’t comment on a legal or constitutional issue.
Supreme Court Chief Justice Jim Hannah told Arkansas Legislative Audit and the Joint Budget Committee last week that Amendment 28 of the Arkansas Constitution gives the Supreme Court the right to add the positions, set the salaries and pay the employees, along with providing benefits.
Hannah, who was discussing the Supreme Court’s proposed budget for the 2013-2014 fiscal year, was asked about the audit and said the state Supreme Court in 1972 set the precedent for the court’s ability to use the license fees to create the additional 15 jobs, which help regulate the practice of law in Arkansas.
Gingrich said the 15 jobs are within the Office of Professional Conduct, which handles complaints about lawyers and holds hearings to determine whether there have been any violations of the professional code, and the Office of Professional Programs, which provides the Bar Exam, offers continuing legal education, has a program for indigents who need legal help and assists judges and lawyers who might have addiction or substance abuse issues.
"All Arkansas judges are bound by the Arkansas Code of Judicial Conduct, which prohibits us from discussing legal issues which could come before the court," Hannah said during a legislative budget hearing last week. "For this reason, there is really very little that I or members of the court or any judge can say on the subject."
Hannah added that the "Supreme Court has been regulating the practice of law since citizens of Arkansas adopted amendment 28 in 1938. We have not changed anything about the way in which we exercise that authority."
"The funds which we utilize for the purpose are paid by private attorneys and have been a part of the scope of the Legislative Audit and reported to the General Assembly in a written audit for as long as I am aware," the chief justice said.
Hannah went on to describe the audit finding as "unusual" and said Supreme Court has been placed in "a unique situation because the audit findings were not financial in nature. Rather, they were findings about the interpretation of the constitution, specifically Amendment 28."
"I have never seen a legislative audit report that would question the interpretation of a constitutional provision when it has already been interpreted by the Supreme Court," he said. "Likewise, I can’t comment any further about that because if there is any change to be done it would have to come before the Supreme Court for a ruling and for that reason … I can’t prejudge something."
Frank Arey, attorney for the Division of Legislative Audit, said during the budget hearing that the audit finding was not questioning the Supreme Court’s authority to set the licensing fee. He also said auditors were aware of the Supreme Court’s 1972 opinion.
"We cited this opinion in our the notes of our audit findings," he said. "Our problem with treating this opinion as precedent is that it does not mention Article 16, Section 4 at all … which mentions your authority to set the number and salaries of the different employees of state government."
"If this opinion had mentioned Article 16, Section 4, I don’t think we would be in front of you today on this issue," Arey told lawmakers.
Arey said a lawsuit could decide the issue, adding that any such suit would likely end up before the state Supreme Court. When pressed by Chesterfield, Arey said the Legislature could address the issue in the 2013 session.
After the meeting, Sen. Larry Teague, D-Nashville, who will be co-chairman of the Joint Budget Committee during the next session, said he expects some legislative action to be taken.
"I am fine with them spending the money and I don’t want to mess with the program, but I think that it’s a legislative issue," Teague said. "I think that the Legislature ought to appropriate the dollars and I would assume if nobody else tries to do that then I would do that in the next session."
Sen. Johnny Key,R-Mountain Home, agreed, saying the state Supreme Court’s budget could be amended to add the 15 additional employees and legislation could be passed allowing the attorney licensing fees to be used for salaries.
"In our discussion it sounded a whole lot more complicated than that and there was talk of lawsuits and everything," Key said. "I do think it is something we need to have a thorough conversation about amongst our members."