- CIRCUIT JUDGE SHAWN WOMACK
Womack, 43, has been a judge since 2008 but is better known for his 10 years in the state legislature, from 1999 to 2009. Specifically, he’s remembered for his sponsorship of a 2007 bill that would have explicitly barred gay and lesbian couples in Arkansas from fostering or adopting children, even if they were related to those children. The bill was a response to a 2006 state Supreme Court decision that struck down a rule of the Arkansas Department of Human Services that prohibited gay people from adopting or fostering. Womack, a Republican who made opposition to the “gay agenda” a key part of his political identity, responded by attempting to enshrine such a ban in state statute.
Debate over the bill led to a particularly memorable exchange in which another senator pressed Womack on the question of how exactly the government could determine a potential foster or adoptive parent’s sexual orientation. To prove his point, Sen. Jim Argue (D-Little Rock) asked Womack whether he was gay or straight. Womack told his colleague that he was “proudly heterosexual,” according to an Arkansas Democrat-Gazette account.
"Can you prove that to me?” Argue asked.
"I certainly would, yes,” Womack said.
"I'm not sure that's a conversation that we would have in mixed company," Womack responded.
Though Womack’s bill passed the Senate, it died in the House of Representatives. Undeterred, a socially conservative activist group pursued a ballot initiative the next year, and Arkansas voters approved the measure in 2008. But the state Supreme Court had the final say: In 2011, it declared the ballot measure unconstitutional, putting to rest the question of whether the state can discriminate against potential adoptive and foster parents purely on the basis of being gay.
Now, as Shawn Womack seeks a seat on that same court, he insists his legislative history has little bearing on his ability to serve as a justice.
"Even though I was a policymaker for 10 years, I kind of hung up that hat as a judge,” Womack told the Arkansas Democrat-Gazette in an interview last year when he announced his candidacy. “As a judge you're more of the referee, you're making sure everyone's playing by the rules. ... You're dealing as the arbiter of justice, not the advocate for any position or any party." (Womack did not respond to questions from the Arkansas Times.)
It almost looked as if Womack would coast to the high court without an opponent, but on the afternoon of the Nov. 9 filing deadline for 2016 candidates, Little Rock attorney Clark Mason entered the race.
Mason, 56, has been practicing law for over three decades. Though his decision to run may have seemed last minute, Mason said that he “had been thinking about this for a couple of years after I had the opportunity to serve as a special associate justice.”
In 2010, then-Gov. Mike Beebe appointed Mason to fill a seat on the Supreme Court on a case in which several sitting justices recused themselves, Baptist Health v. Murphy. The case involved the question of whether a hospital can refuse to grant hospital privileges to a physician who has a financial interest in a competing private hospital, a practice sometimes called “economic credentialing.” The decision (Baptist Health lost) turned out to be a major one, and it piqued Mason’s interest in the Supreme Court.
“I’m very proud of the result that we reached. It’s a decision that the American Medical Association has praised and that is relied on throughout the country. … It really had a significant impact on the field of health care,” he said.
It may also have helped Mason win an endorsement from Beebe, who remains among the state’s most popular political figures. “I have had the opportunity to work with and get to know Clark Mason personally and professionally,” Beebe wrote in a Feb. 18 letter to voters. “He is widely regarded for his intellect, his integrity, his strong involvement in the community, and his efforts to ensure equal justice under the law for all citizens of Arkansas. ... Clark is clearly the most qualified candidate for this extremely critical position.”
Unlike Womack, who’s spent most of his adult life in elected office, Mason has never been in politics himself. He argues that this fact makes him more qualified when it comes to interpreting the law, not less.
- CLARK MASON
“Over the past 30 years, I have had a career where I have developed a vast understanding of many areas of the law … agricultural law, business litigation, matters involving the abuse and neglect of our elderly, cases involving the rights of children,” Mason said. “There has probably not been a courthouse in this state I have not been in at one time or another. Having such a career has prepared me for anything that may come before the Supreme Court.”
As for whether it’s necessary to serve as a judge in a lower court, “I think most lawyers and probably most judges would tell you that it’s certainly not. Some of our best [justices] have come from practicing law … and have directly gone to the bench.”
Former Supreme Court Justice Bob Brown, who is currently of counsel at Friday, Eldredge & Clark LLP, was one such figure. When Brown won a seat on the high court in 1991, he too was a practicing attorney; he went on to spend 20 years as a justice and authored some of the most consequential decisions in the state’s recent legal history.
“Experience is always a good thing, but I hasten to add that when I ran back in 1991, I hadn’t served as a judge,” Brown said. Still, it’s undeniable that in a race in which most voters will likely know neither candidate, Womack has an edge by virtue of his title.
“To run for justice of the Supreme Court, it really is a very big advantage to have ‘judge’ in front of your name. … It’s like voting for an incumbent, in a way. [Voters] assume ‘this person must know what they’re doing,’ ” he explained. “I ran as ‘Robert L. “Bob” Brown,’ just to have more letters on the ballot. It hurts if you haven’t been a practicing judge.”
Questions of competence
Meanwhile, concerns about Womack’s record extend beyond his policymaking history.
In June 2007, the then-legislator was found to have violated two rules of professional conduct by a panel of the Supreme Court Committee on Professional Conduct, the state body that renders consequences against attorneys for ethical lapses. Womack was publicly “cautioned” for his conduct — the committee’s second least severe sanction — and ordered to pay costs of $125 for a hearing. The hearing concerned a complaint from a Baxter County woman named Catherine Miller who had hired Womack in July 2004 to represent her in a child support case.
According to the findings of a seven-person panel composed largely of fellow attorneys, Miller paid Womack $330 “to seek relief for her in a situation where she was not receiving child support from the father of her child.” A court hearing was held in October 2004, at which time Womack was expected to obtain financial information in an affidavit from the father and submit an order. However, he did not file the order until April 2006, 18 months later — and then only after Miller had filed a disciplinary grievance about Womack’s evident lack of attentiveness. By that time, the father of Miller’s child “had relocated to South Arkansas, causing Ms. Miller additional difficulty in attempting to collect on this judgment,” the panel found.
Womack testified at the hearing that he’d told Miller that the 2005 legislative session would keep him too busy to work on her case during the first half of that year. He said he a voicemail from Miller left the impression that she’d found other representation. And, the senator seemed to argue that his tardiness was of little consequence to the outcome of the case: “He also offered that, given the history of the father in ignoring mandates of the Court, it was unlikely that a quick Order would have actually produced any money for Ms. Miller.”
By a 6-1 vote, the panel said Womack violated Model Rules 1.3 and 1.4(a), which respectively require lawyers to act with promptness in representing clients and to keep clients “reasonably informed about the status of a matter.” (Rule 1.3 is the most common source of ethics violations, the committee’s most recent annual report indicates.) The panel also unanimously found that Womack’s conduct did not violate a third rule prohibiting conduct “prejudicial to the administration of justice.”
Stark Ligon, director of the Office of the Committee on Professional Conduct, told the Arkansas Times that the fact that the 2007 was hearing was public means Womack had already received an order from a previous panel (each panel is drawn from a larger pool of committee members) and evidently sought a different outcome.
“The only party that can request a public hearing is the Respondent. … One panel made a decision on it, and whatever the decision was, Mr. Womack decided he wanted a public hearing [as well].” Womack had the option to appeal the matter to the state Supreme Court itself for another hearing, but evidently chose not to do so.
If the episode with Catherine Miller raises questions about Womack’s stature as an attorney, a more recent matter provokes some uncertainty over his qualifications as a judge.
In 2014, fellow 14th Judicial District Circuit Judge John Putman recused himself from an attempted murder case against a Boone County man for personal reasons. Womack, in nearby Baxter County, seemed a logical choice to hear the case, but he also recused. In an unusual letter sent to Putman on Aug. 29, 2014, Womack’s trial court assistant explained why.
“Judge Womack ask [sic] that he be recused from the above referenced case, due to the natural [sic] of the case. He believes that this case would require a more experienced judge with a greater criminal background. He respectfully ask [sic] that we utilize a Judge from the Administrative Office of the Courts,” the letter says.
It’s unclear why Womack felt he was not qualified to hear this case. But considering the letter was written only 18 months ago — at a time when the judge likely would have been planning his run for Supreme Court — it is fair to ask whether Womack today possesses the criminal justice experience necessary to sit on the state’s highest court. (Again, Womack did not respond to requests for comment.)
Such questions haven’t stopped Womack from being vocal about wanting steeper increases in judicial pay. In January 2015, as a newly created independent citizens commission began considering proposed increases to the salary schedules of Arkansas’s public officials, Womack appeared before the body to warn that judges’ pay isn’t growing as fast here as it has been in neighboring states. Judicial salaries over the past decade increased by 43 percent in Tennessee, 36 percent in Texas and 30 percent in Oklahoma, he said, as compared to only 15 percent in Arkansas.
“We're pretty quickly losing ground,” Womack told the commission.
But the percentage growth figures mask the actual salaries paid to judges. Among general jurisdiction courts, only Tennessee pays its judges more than Arkansas among neighboring states. A circuit judge in Arkansas made $140,372 annually when Womack made his comments; after the commission boosted judicial pay last year, the job pays $160,000 a year. (The median household income in Arkansas: $40,768, by 2014 Census figures.)
Today, Arkansas ranks 14th in the nation when it comes to judicial pay, according to the National Center for State Courts, although the state is among the poorest in the nation. When the figures are adjusted for cost of living, things look even better for judges: Arkansas is 4th from the top.
Following the money
With the election approaching next week, Womack enjoys somewhat greater name recognition and the advantage of having that title of “judge” printed by his name on the March 1 ballot. He’s got more money as of a month ago: Womack reported raising $96,415 by the end of January to Mason’s $67,836. That’s partly because Womack has the backing of the state Chamber of Commerce and other business groups. Mason has well-heeled supporters too: Arkansas’s attorneys seem to be backing him strongly. The Beebe endorsement can’t hurt, either.
But in the past few days, a third party has inserted itself in the race for Supreme Court with spending that far exceeds that of either campaign. An independent, out-of-state 527 group called the Republican State Leadership Committee has purchased $250,000 worth of TV, radio and direct mail ads attacking Mason. One mailer decries Mason’s “Obama-style liberalism,” and urges voters to support “conservative Judge Shawn Womack,” whom it describes as “pro-life, pro-family, and in-touch with the people and values of our state.”
Despite its name, the RSLC is not directly affiliated with the Republican Party of Arkansas, or anyone in Arkansas at all. The Washington, D.C., group is devoted to influencing down-ballot races around the nation; its major donors include the U.S. Chamber of Commerce, tobacco companies Reynolds American and Altria Group, casino operator Las Vegas Sands and Blue Cross Blue Shield. According to Justice at Stake, a national watchdog group, the RSLC devoted about $3.4 million in 2014 to state and local judicial races. What’s its interest in the Arkansas Supreme Court?
One answer is tort reform: An RSLC television ad says, “As a liberal trial lawyer, [Mason] made a practice out of profiting off of his injured and suffering clients.” Indeed, his private practice has included claims against nursing homes and similar long-term care facilities, and he once headed the Arkansas Trial Lawyers Association. Business groups that want to limit the punitive damages juries can assess are therefore inclined to back Womack, who has friendlier to business interests.
Outside groups are even more invested in the other race for the state Supreme Court, which pits Associate Justice Courtney Goodson against Circuit Judge Dan Kemp of Mountain View* for the chief justice position. A 501(c)4 nonprofit called the Judicial Crisis Network has spent over $600,000 on TV ads alone, and unknown amounts on other forms of advertising to attack Goodson. Together, the two Supreme Court races have prompted unprecedented levels of spending in Arkansas judicial elections.
Mason has condemned the ads. “Over a quarter million dollars of outside special interest money is being poured into the state in an effort to buy this election because they know I will be a fair and impartial Justice who will not sell out the people of Arkansas,” he said in a statement on Tuesday. “The fact remains that I am the only candidate in this race with over 30 years of legal experience, no special interest agenda and a track record of putting people before politics.”
*Correction: This article originally said Judge Kemp, like Judge Womack, is from Mountain Home. In fact, he is from Mountain View.