Opinion
Delivered November 19, 1990
Canon 3(B)(4) presently provides:
A judge should not make unnecessary appointments. He should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism. He should not approve compensation of appointees beyond the fair value of services rendered.
The canon can presently be read to provide that an appointment based on merit is proper, regardless of its nepotistic character. We do not intend for the provision to be so read. Accordingly, we amend Canon 3(B)(4) of the Arkansas Code of Judicial Conduct to provide as follows:
A judge should not make unnecessary appointments. A judge should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism. No judge shall employ a spouse or other relative unless it has been affirmatively demonstrated to the Arkansas Judicial Discipline and Disability Commission that it is impossible for the judge to hire any other qualified person to fill the position. A judge should not approve compensation of appointees beyond the fair value of services rendered.
This amendment is effective July 1, 1991.
HAYS, NEWBERN, and GLAZE, JJ., dissent.
Amendment 66, which created the Judicial Discipline and Disability Commission permits the commission to "initiate, . . . receive and investigate, complaints concerning misconduct of all justices and judges, and requests and suggestions for leave or involuntary retirement (my emphasis)." Ark. Const. amend. 66(b). There is no provision for the sort of declaratory judgment procedure today's per curiam order permits. I find the order thus to be unconstitutional.
The newly proposed Code of Judicial Conduct, which we have under study, provides at Canon 3.C.(4):
A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.
If we are to make a change in this one area prior to deciding, in general, whether to adopt the newly proposed code, we should adopt the definite provisions quoted. Otherwise, we put the commission in a position of having to exercise discretion which will be most difficult and unwarranted as well as unconstitutional.
HAYS and GLAZE, JJ., join this dissent.