I visited with Tim Fox a few weeks ago & asked these and a few more questions. For the most part Mr. Fox did not have answers. I would like others to have the benefit of my research so that they to may ask pertinent questions. Those chosen to sit on the Arkansas Supreme Court should be sound constitutionalist that will protect the citizens of Arkansas, comply with and fairly enforce the law.
**I am not a lawyer so there may be details I do not have or understand but suffice to say these questions were not answered
JUDGE TIM FOX
ARKANSAS SUPREME COURT, POSITION 6
STATEWIDE RACE
PRIMARY MAY 18, 2010
BIOGRAPHICAL BACKGROUND
LEGAL ACCOMPLISHMENTS
• Juris Doctor, University of Arkansas School of Law, 1981
• Private Practice, 1981-1991
• Chief Assistant City Attorney, City of North Little Rock, 1991-1996
• Prosecutor, North Little Rock District Court, 1996-1999
• Private Practice, 1996-2002
• Circuit Court Judge, Sixth Judicial Circuit, 2003 – Present
• Master of Judicial Studies, University of Nevada at Reno and National Judicial College, 2007
• Certificate in Judicial Development, National Judicial College, 2007
• Faculty, National Judicial College
• President, William R. Overton American Inn of Court, 2009 – 2010
PERSONAL
• Married to Cathy Cothran Fox for 27 years
• Father of two children, Caitlin and Andrew
• Pulaski Heights United Methodist Church
• Former Board Chairperson, United Methodist Children’s Home
• Former Board President, Friends of Arkansas Educational Television Network
CONSTITUTION – TAXES
1. The first case is one where, as I understand it, the Supreme Court of the United States said you made a mistake interpreting the Constitution, and that your interpretation violated due process that resulted in the unconstitutional taking of property. Can you explain?
Jones v. Flowers, 547 U.S. 220, 126 S. Ct. 1708 (U.S.Ark.,2006).
In this tax case, a taxpayer brought suit in Arkansas state court for determination that the notice provided by the state in connection with the tax sale of his property was insufficient to satisfy constitutional requirements and resulted in the taking of his property without due process. Judge Fox, entered summary judgment (without a trial) in favor of defendants, and the taxpayer appealed. The Arkansas Supreme Court, 359 Ark. 443, 198 S.W.3d 520, affirmed, but the United States Supreme granted certiorari (that means that they agreed to look at the case).
The United States Supreme Court held that Judge Fox and the Arkansas Supreme Court were wrong saying: (1) when mailed notice of tax sale is returned unclaimed, state, as matter of due process, must take additional reasonable steps to attempt to provide notice to property owner before selling property, if it is practicable to do so; and(2) steps which state took after being alerted to fact that notice had not been delivered, in proceeding with sale after simply publishing notice in newspaper a few weeks prior thereto, without ever posting notice at address to which notice was sent or taking other measures reasonably available to alert taxpayer of sale, were insufficient to satisfy taxpayer's Fourteenth Amendment due process rights. They reversed and remanded.
2. Have you been reversed by the United States Supreme Court finding that your interpretation of a law or case violated the constitution?
3. Have you been reversed by the United States Supreme Court as a judge? As an attorney urging a particular position?
4. A few years later, the Arkansas Supreme Court, in another case involving taxes, said that you were wrong in retroactively applying a millage-rate increase regarding library taxes. As I understand it, they said you had retroactively applied the taxes even though there was no statutory or constitutional authority to do so. Can you explain that?
Robinson v. Villines, 2009 Ark. 632. (December 17, 2009).
In this case, Judge Fox retroactively applied an increase in the library millage rates for the 2007 tax year. Taxpayers challenged Judge Fox’s decision to make them pay a retroactively applied tax. Fortunately, the supreme court found that Judge Fox clearly erred and reversed the decision saying there was no statutory or constitutional authority to retroactively apply the millage-rate increase to 2007 library taxes after the special election. Every judge voting said that Judge Fox was wrong.
5. So explain why citizens, should trust you to interpret and apply the law regarding taxation in ways that are consistent with constitutional principles.
ELECTION/BALLOT ISSUES
6. In this next case, you refused to hear a voter’s challenge to Tim Hutchinson being placed on the ballot based upon Hutchinson’s failure to meet the residency requirements as set out in the Arkansas Constitution. When I read the section 7-5-207(b) statute, that the Arkansas Supreme Court relied upon when it said you were wrong, it seems clear that the statute specifically authorized a voter to challenge a candidate’s failure to meet the constitutionally required residency requirement. In fact, the statute was designed to make sure that voters could have a candidate removed from the ballot if the candidate was not qualified. Can you explain why you refused to hear the case?
Tumey v. Daniels, 359 Ark. 256, 196 S.W.3d 479 (2004).
A citizen and voter filed a complaint in a pre-election challenge to a candidate’s (Tim Hutchinson’s) failure to meet the residency requirement of Article 5, § 4 . The Arkansas Supreme Court reversed Judge Fox’s refusal to hear the case saying that he erred in dismissing the complaint based on certain provisions under section 7-5-801. That section is only available to a competing candidate who claims to be the rightful nominee or victor. The voter who was challenging Hutchinson’s name on the ballot was not a competing candidate and that section did not apply at all to a voter’s challenge. In addition, a voter’s challenge of a candidate on this constitutional issue is the type specifically authorized by section 7-5-207(b). They reversed Judge Fox’s dismissal of the complaint and remanded for a determination of the merits of the suit.
7. When you sent out an order that took the names of Ralph Nader and his vice-presidential candidate off of the ballots, the Arkansas Supreme Court reversed your decision and said that your interpretation of state law was unconstitutional. Actually, they went even further and said that your interpretation led to an absurd result. Again, why should we as citizens, trust your judgment when it comes to interpreting the Constitution?
Populist Party of Arkansas v. Chesterfield, 359 Ark. 58, 195 S.W.3d 354 (2004).
Quote from case:
Our own court has recognized that the right to become a candidate for public office is, under our form of government, a fundamental right, which should not be in any manner curtailed without good cause. Fisher v. Taylor, 210 Ark. 380, 196 S.W.2d 217 (1946). Any law or party rule, by which this inherent right of the citizen is diminished or impaired ought always to receive a liberal construction in favor of the citizen desiring to exercise the right. Id.
Statutes are not only presumed to be constitutional, but a court must construe a statute as constitutional if at all possible. Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001). As the Supreme Court has recognized, trial courts cannot impose a restriction that denies a group their right to associate or denies them access to the ballot unless narrowly tailored to meet a compelling state interest. Lubin v. Panish, 415 U.S. 709, 94 S. Ct. 1315, 39 L.Ed.2d 702 (1974).
Here, the manner in which the trial court's interpretation of Ark. Code Ann. § 7-8-302(5)(B) leads not only to an absurd result, but also renders the provision unconstitutional. This unconstitutional reading of the petitioning provision at issue infringes upon one of the fundamental civil liberties of our democracy, that of the secret ballot. Anderson, 664 F.2d 600. In sum, section Ark. Code Ann. § 7-8-302(5)(B) does not state that an electorate name “their” candidate for President or Vice President. The statute only requires that the signer of the petition state their desire that the named candidates appear on the ballot.
Populist Party of Arkansas v. Chesterfield, 359 Ark. 58, 66, 195 S.W.3d 354, 359 (2004).
Your website also says that you have a Master of Judicial Studies. I understand that the Judicial Studies Degree provides a formal academic setting in which trial judges or juvenile and family court judges can integrate technical studies of the judiciary with more academic ones in an effort to provide an intellectual assessment of the role of the American judiciary. But I did not see a statement on your page that describes your judicial philosophy. Can you explain your judicial philosophy to me?
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