Lawsuit involving appeals court race heads to high court

Stephanie Potter Barrett
Stephanie Potter Barrett

TEXARKANA, Ark. - A lawsuit filed by Prosecuting Attorney Stephanie Potter Barrett against her opponent in a race for a seat on the Arkansas Court of Appeals is now before the state's highest court.

Barrett filed suit in mid-November in Pulaski County Circuit Court against her opponent, Emily White Lengefeld, for multiple alleged violations of state election law. The suit alleges White is prohibited from using the title "Judge," under Arkansas law, that White is ineligible to run for the open District 4, Place 2 seat because she does not actually reside in the district and that she failed to use her current legal surname as Arkansas law requires.

At a hearing Nov. 18 in Little Rock, Circuit Judge Tim Fox agreed that Lengefeld is prohibited from using the title "Judge" on ballots in the March 3 election. Lengefeld was appointed in 2018 to serve as district judge for the 33rd Judicial District serving Hot Spring and Grant counties by Gov. Asa Hutchinson.

Arkansas law states that a candidate may use the title "judge" in an election only if the candidate has been elected, or if the candidate has served as an appointee for at least 12 months and is running for district judge or circuit judge not if running for Court of Appeals or Supreme Court. The petition points out that a proposed bill which would have allowed an appointed district judge to use the title "judge" when running for the Court of Appeals was defeated in the House on April 24, 2019.

Fox ruled that Lengefeld, who filed to run as "Judge Emily White," cannot use the title "Judge" and sent an order to the Arkansas Secretary of State and election commissioners in the counties in District 4 to remove the title from her certification. That means the title will not appear on ballots when voters go to the polls in March or on overseas or absentee ballots.

Lengefeld's lawyer, Jennifer Standerfer of Bentonville, filed a motion to stay Fox's order on the title issue arguing that Lengefeld is appealing his ruling because she believes barring her from using the title "Judge" is in violation of the state constitution. The Arkansas Supreme Court denied Lengefeld's motion.

Fox denied Barrett's request to have Lengefeld declared ineligible because of residency. In the petition filed in Pulaski County, Barrett argues that her opponent is trying to circumvent residency requirements by purchasing a house in Hot Springs, Arkansas, Garland County, in February and then registering to vote there even though she actually lives with her husband and children in Poyen in Grant County, which is not among the 15 counties served by the position for which she is running.

"Respondent Lengefeld has received a homestead credit in Grant County, Ark., from 2010 until current at the address of (street address), Poyen, Grant County, Ark.," the petition states. "The fact that respondent Lenegefeld together with her husband and children, continue to reside in Poyen, Ark., pay personal property taxes in Poyen, Ark., own and maintain a house there, sleep there consistently on a regular basis, that the children attend school a couple of blocks from their home in Poyen, Ark., shows an intent to continue to reside in Grant County."

During the hearing in November before Fox, Lengefeld replied "yes," when asked by Barrett's lawyer if she bought the house in Hot Springs for the purpose of running for a seat in District 4. Grant County, where Lengefeld's residence in Poyen is located, is in District 7. District 7 incumbent Judge Waymond Brown is running unopposed. Barrett and Lengefeld, who is running as Emily White, are the only candidates running for District 4, Place 2.

Fox also rejected Barrett's argument that Lengefeld should not be running as "Emily White" because her legal last name is currently Lengefeld.

The Arkansas Supreme Court has set an expedited briefing schedule in the appeal of Fox's rulings. Initial filings are due Dec. 12 and responses are due Dec. 20.

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