Arkansas Supreme Court Refers Fellow Justice For Investigation; Controversy Possibly Related To Disciplinary Counsel Termination
The Arkansas Supreme Court dismissed a civil action with prejudice and referred a justice of the court for an investigation of possible misconduct
For the reasons set forth below, and pursuant to this court’s “general superintending control” and authority granted by Amendment 80, section 4 of the Arkansas Constitution, we vacate the circuit court’s order granting preliminary injunctive relief and dismiss the pending civil action with prejudice.
Dispute
On August 23, 2024, Marty Sullivan (“Sullivan”), Executive Director of the Administrative Office of the Courts (the “AOC”), and Charlene Fleetwood (“Fleetwood”), Acting Director of the Office of Professional Conduct (the “OPC”), received a Freedom of Information Act request (“FOIA request”) from Mark Friedman (“Friedman”), Senior Editor of Arkansas Business, for “[a]ny and all communications” sent after January 1, 2023, between (1) Lisa Ballard, the former executive director of the OPC, and Allison Hatfield; (2) Lisa Ballard and Justice Courtney Hudson; (3) Lisa Ballard and Anne Laidlaw; (4) Lisa Ballard and Linda Napper; and (5) Lisa Ballard and Doug Smith.
Ultimately, because the OPC is governed by the Supreme Court of Arkansas pursuant to Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, this court held a confidential vote on an administrative matter pertaining to the release of emails, pursuant to Friedman’s FOIA request, from Ballard to Justice Hudson. The court’s vote did not concern any communications from Justice Hudson to any party, as those communications are subject to a FOIA exemption set forth in Arkansas Code Annotated section 25-19-105(b)(7) (Repl. 2024). As revealed in the circuit court pleadings, five justices voted to authorize Fleetwood to release the emails from Ballard to Justice Hudson.
On September 6, 2024, Justice Hudson filed suit in the Pulaski County Circuit Court seeking an injunction prohibiting the AOC, the OPC, Sullivan, and Fleetwood from producing materials in response to Friedman’s FOIA request. On September 6, 2024, the circuit court entered an ex parte temporary restraining order pursuant to Rule 65(b) of the Arkansas Rules of Civil Procedure. On September 18, 2024, Justice Hudson filed a brief in support of preliminary injunction and attached six exhibits. Among those exhibits were two confidential, unredacted, unsealed emails from Chief Justice John Dan Kemp to the six associate justices concerning the court’s confidential vote on the FOIA matter. On September 18, 2024, the circuit court held a hearing, and on September 23, 2024, the circuit court granted Justice Hudson’s request for a preliminary injunction under Rule 65.
The court
Here, an inferior court has purported to indirectly stay an administrative action of the supreme court by issuing an injunction against employees and entities under the control of this court. The pleadings and exhibits contain information on their face that should have put the circuit court on notice that this matter involved an internal administrative issue over which the circuit court has no jurisdiction. To allow a circuit court to stay enforcement of the supreme court’s decisions would usurp the supreme court’s authority guaranteed by the Arkansas Constitution. See, e.g., Steinbuch, 2024 Ark. 101, at 6, 689 S.W.3d at 60. It would also allow any dissenting justice to halt the administration of the supreme court by seeking additional review whenever he or she disagrees with an internal court decision. This specific action undermines the confidence in the judiciary and subverts the efficient and effective administration of justice. In this unique set of circumstances, the circuit court’s action requires us to assert our extraordinary power of superintending control, pursuant to Amendment 80, section 4 of the Arkansas Constitution.
Therefore, we order that the circuit court’s September 23 order on preliminary injunctive relief pursuant to Rule 65 is hereby vacated, and we dismiss the underlying complaint with prejudice for lack of subject-matter jurisdiction. The Clerk of the Supreme Court of Arkansas shall cause a mandate to be issued in that case number.
Also
Because this case implicates potential violations of the Arkansas Code of Judicial Conduct and the Arkansas Rules of Professional Conduct, particularly the flagrant breaches of confidentiality and the public trust, we refer Justice Hudson to the Arkansas Judicial Discipline and Disability Commission for investigation and refer Justin Zachary of Denton, Zachary & Norwood PLLC to the Office of Professional Conduct for investigation.
BAKER and HUDSON, JJ., dissent with written opinions to follow.
From Justice Hudson’s online biography
Twenty-twenty-one found Justice Hudson spearheading the Court’s effort to create the Office of Ethics Counsel after learning of the Arkansas bar’s need for independent, confidential advice when faced with ethical dilemmas. Currently, Justice Hudson serves as the supervising justice for the Office of Professional Conduct, the Committee on the Unauthorized Practice of Law, and the Client Security Fund committee. In addition to her official duties on the court, Justice Hudson devotes her time to mentoring law students and speaking to civic groups across the state.
Arkansas Times was highly critical of the order
The Arkansas Supreme Court is above the law, and anyone who dares question that fact will be punished. That’s the gist of an opinion from the court released today in the ongoing Freedom of Information Act lawsuit filed by Associate Justice Courtney Hudson against two agencies of the court…
The current dispute between the justices began when Mark Friedman, senior editor of Arkansas Business, sent a FOIA request to the Administrative Office of the Courts and the Office of Professional Conduct on Aug. 23, requesting “any and all communications” since Jan. 1, 2023, between Hudson and Lisa Ballard. Ballard was fired as head of the Office of Professional Conduct in May with no reason given publicly for the termination.
Charlene Fleetwood, acting director of the Office of Professional Conduct, told Kemp on Sept. 3 that she was going to respond to the request by noting she was not custodian of the records and also that the requested documents would be exempt under the FOIA’s working papers exemption, which covers “unpublished … correspondence of … Supreme Court Justices.” Kemp forwarded Fleetwood’s email to the other justices for discussion.
On Sept. 5, Zach Mayo, general counsel for the Arkansas attorney general, sent a memo to the justices, stating that neither the Administrative Office of the Courts nor the Office of Professional Conduct was custodian of the requested records. Even if they were, Mayo explained, the working papers exemption would apply and prevent release.
Despite that memo, later that same day, by a vote of 5-2 (with Hudson and Justice Karen Baker dissenting), Kemp ordered Fleetwood to provide Friedman with the requested records. Hudson filed her lawsuit and motion for preliminary injunction first thing the following morning, Sept. 6. James granted the preliminary injunction shortly after 10:30 a.m. that same day.
Following a short hearing last week, James extended the preliminary injunction “for a reasonable amount of time” to allow the parties to respond to various legal pleadings. James entered a written order, memorializing this decision, yesterday.
While Supreme Court opinions are generally handed down on Thursday, this issue arrived early.
It can’t be overstated how absurd today’s opinion is: the court is effectively saying that anything they do, even getting involved in a FOIA request for records over which they have no custodial control and have no pending case on which to rule, can never be challenged. If anyone dares to challenge them – say, by hiring a lawyer and filing suit in circuit court seeking a declaratory judgment to clarify a question of law – the Supreme Court can and will seek disciplinary sanctions against both the challenger and their attorney.
In short, anyone challenging anything that contradicts the Supreme Court’s belief that it is infallible should be prepared to take that case to federal court. State courts are a complete no-go under today’s opinion.
Channel 5 reported
Arkansas Supreme Court justices have referred fellow Justice Courtney Rae Hudson to the Arkansas Judicial Discipline & Disability Commission for investigation while also dismissing a case she filed to stop the release of certain documents to Arkansas Business.
The seven-member court issued its unsigned order on Tuesday, with Hudson and Justice Karen Baker dissenting. In addition to dismissing Hudson’s civil lawsuit, the order scolded Pulaski County Circuit Judge Patricia James for granting Hudson a temporary injunction preventing the release of the documents despite evidence that five members of the Supreme Court had already voted to release some of the materials.
The Arkansas Times reported on resignations of OPR staff in the wake of the Ballard departure
The Arkansas judiciary office that oversees discipline for attorneys and judges has three recent vacancies on its seven-person staff, including the executive director position, and the reason for the former director’s departure is unclear…
Senior staff attorney Anna Catherine Cargile and staff attorney Cameron Bowden each voluntarily resigned from the Office of Professional Conduct, according to their personnel files. Bowden resigned in April to take a job with the city of Little Rock, according to his resignation letter, and Cargile resigned May 17.
Notably, Justice Hudson had dissented in a case where the court majority reinstated the law license of the son of former Governor Asa Hutchinson.
This is a situation well worth watching. There is obviously much more to this story. (Mike Frisch)