Senator asks Attorney General’s Office to look into legality of county judge’s intent to run for Jonesboro Mayor

“Let the people decide who they want to lead them,” current Craighead County Judge Marvin Day told Region 8 News Monday.

County judge responds to claim he’s ineligible for mayoral race

JONESBORO, Ark. (KAIT) - Craighead County Judge Marvin Day announced his decision to run for the open Jonesboro Mayor’s seat on July 23rd. Since that time, the legality of that intention is being questioned throughout the state.

The question of legality for Day’s bid is based around Amendment 95 to the Arkansas state constitution in 2016.

On July 28, Senator John Cooper told Region 8 News that he has requested the Arkansas Attorney General’s Office for an opinion on the matter.

The AG’s office told Region 8 News they’ve received Senator Cooper’s request, and are looking into the matter. No timeline was given as to when the AG would weigh-in.

Day said he is “not surprised” by claims the amendment to the Arkansas state constitution makes him ineligible to run for Jonesboro mayor.

In a one-on-one conversation with Region 8 News, Day said he had spoken to several attorneys about Amendment 95 prior to announcing his candidacy.

“They believe it won’t hold up in court,” Day said.

Arkansas voters overwhelmingly approved the amendment in 2016 by a vote of 747,856 to 317,093. It states:

A person elected or appointed to any of the following county offices shall not, during the term for which he or she has been elected, be appointed or elected to any civil office in this state:

(1) County judge;

(2) Justice of the peace;

(3) Sheriff;

(4) Circuit clerk;

(5) County clerk;

(6) Assessor;

(7) Coroner;

(8) Treasurer;

(9) County surveyor; or

(10) Collector of taxes.

The amendment also increased the length of term in office from two years to four beginning in 2018.

One of the original creators of the 2016 bill, Arkansas House of Representatives Jack Ladyman, told Region 8 News Tuesday his views on the bill, Judge Day’s claims, and next steps:

“The bill that I ran in 2016 was through the State Agency’s committee to get a proposal on the ballot to amend the Arkansas Constitution and the primary thing in that bill was to give county executives four-year terms instead of two years.” “And of course, that went into effect the last election, so anybody that’s in the county executive is in the middle of their first four-year term. And there were three things added to that bill or that amendment by other representatives. And I agreed with those to get the bill passed. One of those things that was added was that county officials, that’s the term, county officials, cannot be elected or appointed to a civil, I believe the word is office, a civil office or civil position while serving their four-year term. That’s basically what it says.” “Now, That’s never been tested in court, to my knowledge. So I don’t know what the court interpretation of that would be. But the reasoning behind that, and again this was added to my bill by another representative, but the reasoning behind that was that a county official serving a four-year term could not be appointed or elected to another position and serve dual roles. That was the purpose behind that.” Added again that “I don’t know what the legal interpretation of the judicial system will be on that if someone takes it to court.”
Arkansas House of Representatives Jack Ladyman comments on the bill
“He wouldn’t, that’s true. But his term [doesn’t] end for two more years.” ”Now, of course, the federal law is different because a US senator can run for president and still hold their seats if they lose, and if they get elected well then they forfeit their seat. That’s federal law, but our state law is - our state constitution is different.” ”This would have to be figured out in court. You know if someone brought it to court.” “The other thing and, I mean, I know Marvin and I’m not suggesting he would do anything like this, but the person in that position if they won that other position, other office, and did not resign from their current office, what would be the legal ramifications of that? So then that one person would be responsible for city government as well as county government, and I don’t think anybody would want that.”
Arkansas House of Representatives Jack Ladyman: On Day's claim he wouldn't be able to run for re-election
“Well, I want to talk to some lawyers in the BLR -bureau of legislative research - here in Little Rock tomorrow (7/28) to get their opinion on this. Now they may not give me an opinion but I want to ask for one.” “Really, to know for sure, we should ask for an attorney general’s opinion but that probably is going to take three or four weeks to get an answer on that.” “I’m just telling you what I know about the bill and the amendment that was put in, but as far as legally, you know, I don’t know the answer to that.”
Arkansas House of Representatives Jack Ladyman: On the next steps

Over the weekend, Blue Hog Report was the first to report that the amendment prevents Day from seeking election in the upcoming Jonesboro mayoral race.

“I’m not surprised. I was aware that this amendment was out there before I ever announced. [I had sought] legal counsel on it and they really don’t feel like it will hold up in court,” Day said. “They really look at it as a First Amendment issue and that you’d ultimately want the people to decide who represents them.”

When pressed about what he specifically feels is unenforceable about the amendment, Day said as it reads he cannot even run for re-election.

“If you really look at that amendment, technically, I can’t even run for reelection as county judge or any other elected county official can’t run for reelection,” he said. “To go even a step further, the current elected officials that were incumbents, if you follow the letter of this amendment, they would need to be removed from office right now.”

He did not elaborate on who those elected officials might be.

Region 8 News reached out to additional legal experts for comment.

Howard Brill, a Vincent Foster Professor of Legal Ethics and Professional Responsibility at the University of Arkansas’ School of Law, sent this statement:

“Amendment 95 appears applicable. The county judge is included in the list of officials. The position of Mayor of Jonesboro is certainly “a civil office in this state.” The Constitution has other provisions barring individuals from seeking to be elected to office, such as when a person has been appointed to that position. I don’t see free speech as a factor. He may say whatever he wishes, but the issue of free speech is separate and distinct from a person’s qualifications and eligibility for an office. I wonder whether any person in Craighead County has asked the Attorney General for an opinion. The people of Jonesboro would be well served by having this matter resolved soon.”
Howard Brill, a Vincent Foster Professor of Legal Ethics and Professional Responsibility at the University of Arkansas’ School of Law

Day also said he had a “pretty good idea” who might have initiated these concerns but refused to comment on the rumor.

On July 23, Day announced his candidacy for the position following Harold Perrin’s announcement the previous day that he would retire at the end of the year.

Andy Shatley, a Jonesboro physical therapist, is also seeking the office. No other candidates have announced their intentions to run officially.

“Let the people decide who they want to lead them,” Day said. " “If it’s decided I’m not eligible or don’t need to do it, hey, it’s understandable, we’ll keep doing what we’re doing in trying to make this community a better place.”

Region 8 News will continue to track this story and provide more updates as they become available.

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