Supreme Court colleagues not very collegial

By STEVE BRAWNER

Five Arkansas Supreme Court justices Tuesday ordered the release of correspondence that their fellow justice had sued to keep confidential. They also referred her to be investigated for what they said were “flagrant breaches of confidentiality and the public trust.”

Adding to the interest, the two candidates for chief justice in the November election were on opposite sides of the issue.

The news came via a per curiam decision (not assigned to any justice) mandating that correspondence received by Justice Courtney Hudson had to be released to the Arkansas Business publication.

Senior Editor Mark Friedman had filed a Freedom of Information Act (FOIA) request Aug. 23 seeking access to correspondence between Hudson and Lisa Ballard sent after Jan. 1, 2023. He has not said what he is writing about.

Ballard until May headed the Office of Professional Conduct, which is in charge of disciplining lawyers and judges, and which Hudson supervised. She also represented Hudson in her 2019 divorce, which may not be relevant to this story. 

As a Supreme Court justice, Hudson is exempt under FOIA from having to release whatever she sent to Ballard. The issue was the release of Ballard’s correspondence to Hudson. 

In a confidential vote, five justices authorized the release. Those five apparently were Chief Justice Dan Kemp and Associate Justices Rhonda Wood, Barbara Webb, Shawn Womack and Cody Hiland. Hudson naturally opposed the release, and apparently so did Justice Karen Baker. 

After Hudson on Sept. 6 sued to stop the release, Pulaski County Circuit Judge Patti James issued a restraining order. Then on Sept. 18, Hudson filed a brief that included two confidential, unredacted emails Kemp had written to the other six justices. Five days later, James granted Hudson’s request for a preliminary injunction, preventing the release of Ballard’s correspondence with her before a full trial occurred.

The five justices responded Tuesday with their per curiam decision saying the lower court can’t stay a Supreme Court administrative action. Doing so would usurp the Supreme Court’s authority.

They continued by saying they were referring Hudson to be investigated by the Arkansas Judicial Discipline and Disability Commission, and her attorney to be investigated by the Office of Professional Conduct, over what they called “flagrant breaches of confidentiality and the public trust.” 

The per curiam decision doesn’t specify what those breaches were, but it certainly looks like the justices didn’t appreciate Hudson including Kemp’s confidential emails in her legal filing.

The fact that Hudson doesn’t want the correspondence released doesn’t necessarily mean she’s done anything terribly wrong. It could just be personal and embarrassing. We’ll know when Arkansas Business prints the story.

All of this is happening while Justices Wood and Baker – on opposite sides of this particular case – are facing each other in the Nov. 5 runoff election for chief justice. They were the top two finishers in the first round of voting in the March primaries, when they finished ahead of Justice Webb. Hudson won an election this year that will extend the length of her eligibility to serve on the court.

Meanwhile, the Supreme Court is engaged in serious regular business. That includes deciding whether the November ballot will include two citizen-led efforts. One attempts to significantly expand medical marijuana availability. The other attempts to cancel a license for a future Pope County casino. 

The court has already kept voter signatures from being counted on a citizen-led measure that would have asked voters to legalize abortion. That case – an election law case, not an abortion case – also put Wood and Baker on opposite sides. Wood wrote the majority opinion that the signatures shouldn’t be counted because she said canvassers didn’t follow the law. Baker dissented, saying no specific law had been broken. 

Regardless of who gets elected chief justice, Wood and Baker will remain on the court with Webb, whom they both just beat, and with Hudson, whom Wood and Webb both just ordered to be investigated.

Remember, we’re talking about seven esteemed black-robed justices who occupy the state’s highest court and offer the final word in the Arkansas judicial system. Their rulings determine what the law is.

Right now, the Supreme Court’s colleagues are not being very collegial, but sometimes there are good reasons for that. We’ll see what the FOIA request reveals.

Steve Brawner is a syndicated columnist published in 17 outlets in Arkansas. Email him at brawnersteve@mac.com.