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Justice

“Justice Must Satisfy the Appearance of Justice”

Paul W. Keith is the President of the Arkansas Bar Association. He is a member of Gibson & Keith, Monticello

A priority for the Arkansas Bar Association in the 2021 General Assembly is to advance our bill to require disclosure of the identities of those who make contributions to independent expenditure committees in an attempt to influence Arkansas appellate judicial elections. In this context, an independent expenditure is an expenditure within 120 days of an election that names or depicts a candidate and is not made in concert with or at the request or suggestion of a candidate or an authorized committee or agent of the candidate.

The Center for Responsive Politics reports that independent expenditures in federal elections have risen 76% in four years from $1.48 billion in 2016 to $2.6 billion in 2020.1 Independent expenditures are not new to Arkansas appellate judicial elections. In the category of television advertising alone, appellate judicial candidates were outspent almost three to one by outside groups from 2014–2018. This data comes from The Brennan Center for Justice, the Arkansas Ethics Commission, the Arkansas Secretary of State and the FCC. This kind of money has the potential to erode public confidence in the judiciary.

According to the Brennan Center, a 2010 survey revealed that 70% of Democrats and 70% of Republicans believe that campaign expenditures have a significant impact on courtroom decisions, and only 23% of voters believe campaign expenditures have little or no influence on elected judges.2

These “dark money” expenditures have no place in judicial races. The claims made in the ads can appear to be from the candidate, yet may not be permitted by Judicial Canons. Dark money expenditures deny the public and the candidates an opportunity to challenge the credibility of these speakers. And, a candidate who is attacked may be also restricted by Judicial Canons from making an effective response.

It is against this backdrop that the Jurisprudence and Law Reform Committee of the Association prepared a bill3 to require Independent Expenditure Committees to identify the sources of their millions. I say “millions” because in the election cycles of 2014–2018, Independent Expenditure Committees spent at least $2,999,995.00 on the races for Arkansas’ appellate courts. By contrast, the candidates in those races spent just $1,071,673.99. To say the least, this is high-dollar meddling in the affairs of Arkansas citizens.

Public confidence in the judiciary is no small matter. Writing for the majority in 2015, Chief Justice John Roberts said that the Court has “recognized the ‘vital state interest’ in safeguarding “‘public confidence in the fairness and integrity of the nation’s elected judges.”’”4 The Chief Justice went on to note, in the majority opinion, “[a]s Justice Frankfurter once put it for the Court, ‘justice must satisfy the appearance of justice.’ It follows that public perception of judicial integrity is ‘a state interest of the highest order.’”5

The founders of our republic recognized that public confidence is crucial because the judiciary’s power is derived from the respect and trust reposed in it. “The importance of public confidence in the integrity of judges stems from the place of the judiciary in the government. Unlike the executive or the legislature, the judiciary ‘“has no influence over either the sword or the purse; ... neither force nor will but merely judgment.”’”6 As lawyers and guardians of the Constitution, we must do all we can to preserve and enhance public confidence in the judiciary.

It is worth noting that the Association bill is narrowly tailored in at least three ways. First, it is restricted to elections for appellate judgeships. Second, the Act will not interfere with citizens’ groups who wish to survey candidates and to communicate the survey results to their members or with the ordinary business of newspapers and broadcasters. Third, the bill does not propose a limit on contributions.

But when our citizens are presented with an ad for or against an appellate judicial candidate, they deserve to know who is behind the message. One has but to remember Justice Brandeis’ admonition on the best disinfectant. “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”7

If Arkansas voters can sit on juries where life, death, and imprisonment hang in the balance, they can decide how to vote in a judicial race without “advice” from unidentified deep-pocketed intermeddlers. We can do better and we must.

Endnotes:

1. https://www.opensecrets.org/outsidespending/ 2. Press Release, Justice at Stake, Solid Bipartisan Majorities Believe Judges Influenced by Campaign Contributions (Sept. 8, 2010), available at http://tinyurl.com/2c422fs. 3. The bill is entitled: An Act To Protect Public Confidence in the Integrity of Appellate Judicial Elections; to Require Disclosure and Reporting of Noncandidate Expenditures Pertaining to Appellate Judicial Elections; To Empower Citizens to Compel Transparency from Persons Making Noncandidate Expenditures; to Adopt New Laws Concerning Appellate Judicial Campaigns; and For Other Purposes. 4. Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1659 (2015) (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252 (2009). 5. Id. at 1666 (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 99 L. Ed. 11 (1954), citing Caperton, supra). 6. The Federalist No. 78, p. 465 (A. Hamilton), quoted by, Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1666 supra. 7. Louis D. Brandeis, Harper’s Weekly, Dec. 30, 1913. ■

Generational Perspectives The Humphreys

Awhile back, The Arkansas Lawyer became aware of a special father/ son relationship that includes a shared interest in the law. Marion Humphrey, Sr., served 22 years as a district and circuit judge before retiring in 2010. He has since practiced law in Little Rock along with his other role as the pastor of Allison Presbyterian Church. His son and namesake, Marion Humphrey, Jr., has invested his adult life in social advocacy, particularly with young people and educators in Washington, D.C. and Little Rock, before attending the University of Arkansas Law School, where he is a 3L. We recently invited the two Marions to interview each other in the style of National Public Radio’s StoryCorps, and this is their dialogue. We are fortunate that they agreed to let us inside their close relationship. As you read their conversation, you will find wisdom and insight from both with a healthy dose of reality, reverence, and a will to be a positive influence as Arkansas lawyers.

Mr. Humphrey: My name is Marion Andrew Humphrey, Jr. I’m currently a 3L law student at the University of Arkansas in Fayetteville, taking all-remote classes, so I’m living in Little Rock. I graduate Class of 2021 and I’m really looking forward to it. I can’t wait.

Judge Humphrey: My name is Marion Andrew Humphrey, Sr. I am currently a lawyer in Little Rock. I served for 18 years as a Pulaski County Circuit Court judge. Prior to that, I served as a Little Rock Municipal Court judge. That court is now called “Little Rock District Court.” I retired from the circuit court bench at the end of 2010. Since then, I have continued serving as the pastor of Allison Memorial Presbyterian Church, and I have done legal work. I have reduced the legal workload I began when I retired. I am a graduate of

From left: Judge Marion Humphrey Sr. and son Marion Andrew Humphrey Jr. Photography by Mike Pirnique.

the University of Arkansas School of Law at Fayetteville in 1980.

Judge Humphrey attended public schools in Pine Bluff and is a graduate of Phillips Exeter Academy in Exeter, N.H. He received a bachelor of arts degree from Princeton University, a master of divinity degree from Harvard Divinity School, and a juris doctor degree from the University of Arkansas School of Law.

Mr. Humphrey: So, Dad, when you were finishing law school, what was it like?

Judge Humphrey: I was really happy to be finishing law school. I had begun earlier and had not had my heart in it. I went to divinity school and returned to finish what I had begun earlier. I had to make up some things and I was just tremendously happy to have completed my law school course of study. I was looking forward to becoming a lawyer, even though I was not certain I would ever practice.

Mr. Humphrey: What did you think your life as a lawyer would look like?

Judge Humphrey: I didn’t know. I was looking forward to using my legal background, but, being bi-vocational, I wasn’t sure how I would use it. I just knew that I wanted my law degree, and I wanted to be admitted to the practice of law. But, I didn’t know if I was going to use my legal background to set up a law practice, or to work for the government, or simply to use it for community and political activism purposes.

Parents often think they know what their children’s hopes and dreams are, but we seldom have a forum to hear the kind of direct questions and the holistic life-view responses that occurred between this father and son “in the law.”

Mr. Humphrey: So, similarly, what were your expectations? What were your hopes and dreams? Did you think it would be easy to transition into life as a legal professional?

Judge Humphrey: Of course. And, I really liked the flexibility that a law degree gives an individual and opportunities made available through admission to the Bar. There are so many things that an individual can do. He or she is not restricted to actual courtroom work or to the practice of law on a daily basis. The legal background is important for other disciplines and for interests that an individual might have in terms of community involvement. And, I’ve always been interested in community affairs since I was very young. I think that a law degree is really valuable for an individual who has an interest in government, in public affairs, and my case, in civil rights. Of course, a person can also make a decent living in the legal field.

Marion Jr. then asked his father about the world as he saw it on the threshold of graduating from law school, and Sr. tossed the same question to his son for his view in 2020 along with how he sees his life as a future lawyer. Jr.’s responses also gave his father some insight into how he saw his father as a judge and lawyer while Jr. was still young.

Mr. Humphrey: So Dad, let me ask you— what was the world like as you were finishing law school? What was the world like in 1980? Judge Humphrey: In 1980, the world was, as I recall—you know, that’s been a few days ago—I really have to think about that. It was an election year, as is this one. Jimmy Carter was running for reelection and Ronald Reagan was challenging President Carter at the time. There was a lot of commotion about the hostages held in Iran. So, things were tense on that level. And, the domestic issues were generally the same as we have today: How is the economy going to behave? How are people going to feed their children? Inflation was a big issue, because interest rates were so high. And, civil rights, of course, always seems to be an issue in our society. It was an issue then. People, such as I, had questions about Reagan’s commitment to civil rights as opposed to Jimmy Carter’s proven record.

How does the world look to you as you are contemplating graduation from law school?

Mr. Humphrey: While I don’t have as many decades in as you do; I did go to law school a little bit older than most law students. I started law school at the age of 30. I think there are so many issues that are somewhat unchanged since your law school years. In terms of civil rights, inequity has since been codified into other practices, other policies, policies that continue to impact all communities. And, I’ll be finishing up law school post COVID-19 (hopefully) and through racial injustice experiences, protests in anger, and people heartbroken at the conditions of America; it all doesn’t look that great to me. It looks backwards, but I think that’s kind of why I went to law school to begin with. Many people are challenged by the environment in which they live. In America, the way that we do justice is very different than other developed countries. The way that we do policing is very different than other developed countries.

It’s really surprising to hear right now from people I’ve met all across the world just how baffled they are at how America treats things like mass incarceration and policing. Their police have options, such as not even carrying guns, while we have people who are crying out for help because of how police have policed their neighborhoods, policed their communities and how they’ve worked to give us a prison population in America that is unlike any other developed country across the world. So I think that, you know, yes, there have been successes along the way for different communities, but there’s such disparity still today and there is so much disappointment with how the country really thinks about things like equity and equality.

Judge Humphrey: How do you think your life will look as a lawyer, though, in particular, working in the legal field?

Mr. Humphrey: Well, I think I agree with you, in terms of the flexibility of the law. When you were a judge, I didn’t see much flexibility in the position. Even though many different cases came before you, you basically

worked a regular nine-to-five then came home. But when you retired, however, I saw how diverse the different issues you were able to address through the law—whether it’s been civil or criminal law, tort or family law, public interest—your lawsuits have run the gamut. So, I went to law school to, one, possibly work myself out of having a boss. But also—like you —to really be able to address the concerns that I think folks in the community have on a regular basis. While some of those concerns are very personal, like family law matters, there are also systemic issues and problems that people are concerned about that a law degree really gives you the ability to reform. Having a legal education really allows a person to not just take on a case but also to address an issue on the fullness of how one should address that issue. So whether it’s advocacy, who you should talk to, what you should do, how do these things change. I’ve really enjoyed being able to figure out ways to address things that I’m concerned about as a person in the community.

Parents often think they know what their children’s hopes and dreams are, but we seldom have a forum to hear the kind of direct questions and the holistic life-view responses that occurred between this father and son “in the law.”

Judge Humphrey: What now are your expectations and hopes and dreams?

Mr. Humphrey: Well, I think my expectations, hopes, and dreams are probably the same as most people: to put food on the table, to have a place to rest my head, to be able to enjoy the fun things of life. And one of my favorite experiences, during and after college, has been living abroad. I studied abroad in Beijing, People’s Republic of China during college and returned after undergrad for two years. I think that was, really, the first place I went abroad—a really far distance to be your first place to go abroad. But I think it did set a fire in me regarding being able to see other cultures that so many Arkansans don’t get that opportunity to or refuse to think that that opportunity is something worthwhile. Arkansas has one of the highest percentages of people who actually never leave the state. Long story short, I’d like to be able to travel as much as possible. But also, my expectations are to really address some systemic issues in Arkansas through the law. I hope that the law degree will allow me to work with different partners, build relationships with like-minded individuals, and support laws like warranty for habitability, for instance, so that landlords feel compelled to maintain a habitable presence for their tenants. I hope to dismantle homelessness, fully incorporate our undocumented residents and limit the criminalization of community members for unnecessary offenses. I’m really hopeful that I will be able to do that with the law. But again, on a personal level, to be able to support myself as an individual.

Judge Humphrey: Well, good.

Marion Jr. then asked for his father’s wisdom about what he sees as important for a new lawyer. Marion Sr. spoke with the kind of directness that we all need to hear, but especially a son, and the son then asked his father if he thought he had made a difference as a lawyer—the kind of question that all lawyers should be asking. Marion Jr. ends this portion of the conversation by answering the question about the difference his father has made in his eyes.

Mr. Humphrey: So, Dad, what would you say to me and others who are about to enter the practice of law; what’s important for us to do and invest our lives in as lawyers? Judge Humphrey: I think it’s important for you to make a contribution to the larger society. Obviously, it’s important that you be able to have a decent income. And, I am thankful for the practice of law for that purpose and for my service as a judge and having a judicial retirement for your mother and me. But, beyond that, I like the idea of being able to make a contribution to some of the issues that we face in our community. In our city, state and nation, a lawyer can bring attention to issues that impact people daily and that are of great concern. For instance, I believe lawyers can craft legal actions and participate in the drafting of legislation on matters that affect basic rights of citizens. Today, lawyers, as always, can behave as social engineers. I know that there is a lot of concern these days about issues such as noknock warrants and racial profiling. Lawyers can craft strategies about how to address such concern through legal proceedings and through drafting legislation. Some of us have raised issues about drug offenses and sentences. We have talked to legislators about sentencing issues concerning drug offenses. Over the years, I believe there has been some lessening of penalties on some drug offenses. Lawyers have addressed issues pertaining to sealing court records, so that offenders can have a new start. I think we can use our legal backgrounds to address all kinds of legal issues—not just social and civil rights. As an African American, I know that you are interested in issues pertaining to equal opportunities and equity.

Mr. Humphrey: Do you feel that you’ve made a difference as a lawyer?

Judge Humphrey: Yes. There are cases that I’ve had that have been difficult ones. I hesitate in mentioning a couple because I’m not sure the clients I represented want additional public attention drawn to them and about their involvement in

them, even if they were acquitted. In one case, I represented a young man who was charged with first-degree murder, among other charges, involving the death of a law enforcement officer down in Southeast Arkansas, where the officer died after crashing his vehicle while in pursuit of my client. The person I represented was charged with first-degree murder because, in the commission of a felony, according to the statute, he caused the death of the officer. He had been charged, also, with the felonies of fleeing and possession of drugs. We got an acquittal on the murder. He was, however, convicted on the felony drug charge and the jury reduced the fleeing to a misdemeanor. That was a pretty good outcome for what my client had been facing. He is now in graduate school in another state. He is a person who had never had problems with the law previously, and who had an exceptional reputation before that tragic incident.

I have had some other impactful cases I have tried since my judicial retirement, cases that may be impactful on a larger scale. I tried the first—I don’t know if there have been others—re-sentencing case under Miller v. Alabama and Montgomery v. Louisiana, where a juvenile had been given a life sentence for a capital murder conviction on an offense he committed prior to his having turned 18. I tried that case over in Crittenden County. The jury gave him a 40-year sentence, which meant he was eligible for release, because he had spent 37 years in prison at the time of the re-sentencing trial and was eligible for some good time under the parole eligibility rules at the time of the commission of the offense. He has moved on with his life in another state. I represented three fraternity guys who were charged with felony battery second degree in what ended up as a conviction for hazing, an unclassified misdemeanor, in connection with a fraternity matter at Arkansas Tech. At least two of the three guys I represented have gone on to attain masters degrees, and all three have relocated to other states with very good opportunities. Here, you’ve got young African American college and graduate men who had not been in trouble before, and just their fraternity involvement led to an unfortunate situation. We were able to get, I think, a good outcome, a good result, in those kinds of cases, and raise issues about how young people should be treated in these circumstances.

I successfully defended in a three-day jury trial the only person ever charged criminally with violating the Arkansas Freedom of Information Act. My client was an African American male who was director of the Little Rock Housing Authority, and had a dispute with a reporter of the Arkansas Democrat Gazette over the release of some information that was both too voluminous for his limited staff to prepare and contained confidential information of some of the tenants. Never before had I seen a FOIA dispute filed as a criminal charge. My client is an outstanding citizen.

And, so, do you have any idea what kinds of cases you look forward to addressing?

Mr. Humphrey: Well, I look forward to doing something similar. I think that growing up in this society, as a Black man, gets you into situations where you’re confronted with the law throughout your life. The full Black community shares this experience. Black women have so many different issues that transpire both intra- and inter-community. And, for me, most of those issues also stem from institutional and systemic circumstances that affect entire communities. I grew up in Little Rock, which is so highly segregated, and I’ve always been able to see the differences, as soon as I cross 630, how people actually even treat the community residents here: how the roads are paved, what type of food is provided in the grocery stores, whether a grocery store exists within a mile radius. These are issues that have long been problems particularly for communities of color. But the narrative is often so divisive and it speaks to the choices that individuals from particular communities make rather than the choices that legislators, the General Assembly, and people who have long been in charge of the state have made to enhance separation and disparity. These are things that need to be addressed. And, for me, they need to be addressed on the systemic level before and with much more aplomb than the interpersonal level. For example, more interest is given to interpersonal issues like person-to-person crime, but what about the systemic issues in communities that cause people to think that those are the type of interactions worthy of participation? That’s the reason why I thought about going into law.

I think you made a difference as a lawyer. I know the value and importance of public education. The Little Rock School District is so important to my life. I enjoyed the educational experiences I received at Washington Magnet. My experience at Dunbar Middle School was my favorite educational experience in life, college and law school included. And going to Little Rock Central High School with its history and with its possibilities prepared me for the rest of my life’s experiences. Witnessing what has transpired since, such as a takeover of a school district for over six years, schools plummeting in overall outcomes, and much less diversity throughout the district strikes me as the saddest thing I’ve endured during my return to Arkansas. These are not the same type of educational environments I experienced. Charter schools have resegregated the district, so that my elementary and middle schools are now nearly fully Black and much less

Photos at the Humphrey home with Mrs. Vernita Humphrey in the center photo.

resourced. It’s really difficult to see, but it was encouraging to see someone like you, dad, push really hard on that issue using a legal framework—even all the way up to the Arkansas Supreme Court. It became quite clear to me that one can use a law degree to say we need to stop this and make sure that schools across the city have the same opportunities, funding, budgets, facilities, books, and opportunities. And, we need to figure out ways to get people from different backgrounds in the same classroom.

That’s kind of what I’ve seen, in terms of your difference as a lawyer, being able to stand out on those issues to address them systemically and on a personal level— having a son who gained so much from the district.

I don’t like for folks to know that my dad was a judge; I never have. It’s not something I lead with. We do share a name so it always comes up, but I will say that I don’t have a problem when it is said. And that is not the case for many different judges who have both criminal and civil dockets. There are a lot of young folks who, when they say who their parents are, they hear, “Well, I did not have a favorable circumstance in that court” or, even worse, “I hate that person.” But I always get more of, “Well, your dad gave me a chance that others did not; I was so happy to be in his court, his court was the one I preferred.” I’ve heard it not just from Black folks but plenty of white folks, particularly white men who had an experience in the courts. They talk about how going to your court helped put them on a different trajectory and gave them a chance. So, I would say that you definitely made a difference in a lot of people’s lives and you are probably what a judge in those positions should have been—sharing grace and seeing the humanity in most or all of the individuals who came before you.

Judge Humphrey: I don’t have anything to say behind that.

Mr. Humphrey: I won’t be nice the rest of the week for that.

Judge Humphrey: They’ll have to have us do this more often.

As they concluded their conversation, Judge Humphrey gave his parting words of wisdom, and Marion Jr. gave insights to his fellow law students and those who may come after him.

Judge Humphrey: Well, I just encourage the young people to let God lead you and guide you and use the opportunities that you have been given to do the Lord’s work in your own way that is interpreted and do some good for others. There were times when I had to be tough in sentencing people, but, I tried to make distinctions on what is behavior that really needs tougher punishment as opposed to that where a person can be corrected with something less than incarceration or, even if incarceration, not trying to destroy them. And, I think too often, when some people talk about “law and order,” they’re actually out to destroy people—to say that people are incorrigible. I do not subscribe to that position. Obviously, some crimes mandate harsh penalties, and I was able to mete out such penalties where I deemed them to be warranted; but, for the most part, I think I was looking at trying to see how people could be rehabilitated—punished but not destroyed. Mr. Humphrey: If someone is thinking about becoming a lawyer, I highly encourage it, even if he or she doesn’t end up practicing. Yet, it is a huge investment. I think that my years between undergrad and law school were very helpful for me to see what I could do with the law, so I also encourage taking some time before making the decision. The law, itself, is artificially complex and primarily used to benefit the elite. Younger folks can start to break down some of the intricacies of the law and make it possible for folks outside in the community to advocate for themselves.

I believe that, for an institution that holds so much power, all should have access to it. The current systems rely on an outdated and classist way of learning the law that maintains inequity. You have to seek a lawyer’s counsel to make sure you don’t get evicted these days. You have to have a lawyer to make sure that the pollution plant in your low-income neighborhood doesn’t continue impacting your health. So, while I am really fortunate to have somewhat of a legal background, I would hope that the legal field would be able to expand into areas where people can really support themselves and have their rights upheld without so much intricacy. But, yeah, I think it’s a good degree overall. And that’s all I have to say for today.

Judge Humphrey: Thank you. ■

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