Arkansas justices refer each other for discipline in FOIA tiff
A Freedom of Information Act request for an Arkansas justice’s emails has led to a tossed lawsuit and a spate of ethics referrals. (Image from Shutterstock)
Updated: A Freedom of Information Act request for an Arkansas justice’s emails has led to a tossed lawsuit and a spate of ethics referrals.
Last week, the Arkansas Supreme Court dismissed Justice Courtney Rae Hudson’s suit seeking to block release of the emails, filed after five fellow justices took a once-confidential vote allowing release of some of the communications. An editor at Arkansas Business had filed the FOIA request.
The state supreme court also referred Hudson and her lawyer, Justin Zachary, to ethics regulators for investigation. Hudson was referred to the Arkansas Judicial Discipline and Disability Commission, and Zachary was referred to the Arkansas Office of Professional Conduct.
The state supreme court majority’s Sept. 24 decision said the referrals were based on “flagrant breaches of confidentiality and the public trust” after Hudson filed a brief that included two confidential emails by the chief justice regarding the secret vote.
Justice Karen R. Baker, a dissenting justice, said she was referring the five-justice court majority to the judicial discipline commission for investigation.
The vote by five justices had allowed release of emails sent to Hudson by the former director of the Arkansas Office of Professional Conduct. The justices did not authorize the release of Hudson’s communications to any party, however.
Hudson had revealed the chief justice’s two emails in a brief supporting her request for an injunction, the Arkansas Supreme Court said. The emails were not redacted or sealed.
The state supreme court vacated a Pulaski County, Arkanas judge’s September injunction barring the email release. The state supreme court said it governs the Arkansas Office of Professional Conduct, and the circuit judge was on notice that the matter concerned an internal administrative matter over which the judge had 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,” the state supreme court said in its per curiam opinion.
Zachary told the ABA Journal that he didn’t know whether the ethics referral regarding his actions concerned disclosure of the confidential vote. The Arkansas Supreme Court didn’t list ethics rules that were allegedly violated, Zachary says, and he is unsure of the specific allegations.
Asked whether the dissenting justice actually referred the five justices in the majority to ethics regulators, Zachary says he “would take Justice Baker at her word.”
In her dissent, Baker said the per curiam opinion was released after the justices were only “given 23 minutes to read” it.
“Is it possible that this hasty schedule stemmed from the fact that subpoenas in the pending civil action below had been issued for every participating member of this court on Sept. 18, the service of which was surely approaching?” Baker wrote. “In fact, I received an email from attorney Justin Zachary, the evening before the per curiam was handed down, seeking to arrange for service of the subpoena. I can only assume that my colleagues received similar requests.”
Baker argued that the state supreme court has never exercised its “general superintending control” in such a manner to reach down into a lower court and dismiss a pending case.
She also said a FOIA exemption should have protected emails to or from Hudson. And she said Zachary has apparently been referred for investigation for “what appears to be nothing more than zealously representing his client.”
Baker said the matter wasn’t properly before the Arkansas Supreme Court, but if it was, the justices should have recused themselves because of the pending subpoenas.
“The majority has, once again, chosen to liberate itself from the shackles of our long-standing precedent and the plain language of statutory law in order to reach a particular result,” Baker wrote. “Consequently, I believe that the majority has breached public trust. Therefore, I refer the majority to the Arkansas Judicial Discipline and Disability Commission for investigation.”
Hudson, who was listed as a dissenter, referred the Journal’s questions to Zachary. He told the Journal that the justice actually recused herself.
The case “was never about the substance of the emails,” he says. “It was just that a valid legal process needed to be followed” to obtain them.
Zachary says Hudson thought that the FOIA request should have been sent to her as custodian of the documents. The emails have been released, and they were “pretty much a bunch of nothing,” says Zachary, who forwarded the emails to the Journal.
One of the emails concerned the Arkansas Office of Professional Conduct moving to a different building that did not have a hearing room. Others concerned the purchase of soft drinks and snacks for members of the professional conduct committee, which auditor will be scrutinizing spending, paid tornado leave for an employee, a staff attorney’s resignation, and a proposal to transfer money from the client security fund.
Zachary says he has received “an outpouring of support from the legal community” regarding the case consisting of “literally hundreds of calls and text messages.”
He views Baker’s dissent as “100% factually accurate and legally accurate.”
Zachary also commented in a Sept. 30 press release.
“As a lawyer practicing for almost 15 years, you look forward to a good legal debate on issues,” he said. “Particularly when those issues have public importance. What no lawyer or party expects is for a court of review like the supreme court to reach down without notice, without briefing and turn the lights off on that important legal debate before it even starts. Particularly when those same justices are factually intertwined with the proceedings.”
Publications covering the decision include the Arkansas Advocate, Arkansas Business, KATV, the Arkansas Times and the Arkansas Democrat-Gazette.
Updated Oct. 1 at 4:15 p.m. to report that Arkansas Supreme Court Justice Courtney Rae Hudson referred the ABA Journal’s questions to lawyer Justin Zachary. Updated Oct. 1 at 4:45 p.m. to include information on the released emails.
