Chief Justice Baker vs. the Supreme Court?

By STEVE BRAWNER

What happens when the Arkansas Supreme Court’s chief justice and most of the other justices disagree with each other about how to run the court’s business, and both sides say the law is on their side?

We’ll find out somehow.

The court’s latest saga – and this is hardly the first one – started this month after newly elected Chief Justice Karen Baker attempted to fire 10 Administrative Office of the Courts employees. Those included the AOC’s director, Marty Sullivan, and the Supreme Court’s police chief, Pete Hollingsworth.

Five of the other six justices then issued an administrative order Jan. 3 saying a court majority was required to fire the director, while Sullivan has the sole authority to hire and terminate the staff.

Baker had defeated two of the five, Justices Rhonda Wood and Barbara Webb, in the chief justice election last year. The other three were Justices Cody Hiland and Nicholas Bronni, both appointees of Gov. Sarah Huckabee Sanders, and Justice Shawn Womack. Remaining silent so far is Justice Courtney Hudson. 

The five justices’ order stated that Baker had not explained why she wanted to fire the 10 employees, other than to say she had “millions of reasons.” 

There had been an incident reported by media outlets late last year when Baker, then an associate justice, had entered Sullivan’s office when he wasn’t there. It led to a majority of the court making a rule that justices can’t enter the locked offices of any staff members other than their own. After Arkansas Business contacted her asking about a video recording of the incident, she left a voicemail with Hollingsworth, the police chief, saying, “There better not be footage going around.” Talk Business & Politics obtained and reported on that voicemail after making a Freedom of Information Act request.

The five wrote that Baker’s actions appeared to be “retaliatory” and rescinded the firings. They wrote that failure to abide “may result in a citation for contempt.”

On Jan. 8, Baker wrote her rebuttal, saying the Constitution provides that the chief justice administers court functions. She referenced Amendment 80, which says the Supreme Court exercises “general superintending control over all courts of the state and may temporarily assign judges” and then adds, “These functions shall be administered by the Chief Justice.”

Baker wrote that her predecessor, former Chief Justice Dan Kemp, had set a precedent where the chief justice can exercise such authority. She declared the five justices’ order “null and void,” writing that “the associate justices cannot overtake the constitutional duties of the Chief Justice, an elected position, simply because there are more of them.”

As for the firings, state law says the AOC director “shall be nominated by the Chief Justice of the Supreme Court, subject to the approval of the Supreme Court and the Arkansas Judicial Council, Inc. Subsequent to the appointment, the director shall hold office at the pleasure of the Supreme Court.” 

The Judicial Council is a group composed of all the state’s justices and judges. It issued a resolution Jan. 10 praising the 10 employees. 

John DiPippa, Bowen School of Law dean emeritus, told KARK’s “Capitol View” that the big issue is the word “administered.” Baker and the other five obviously interpret that word differently. He said the chief justice can’t fire the AOC director unless there’s a vacancy. Baker claims a vacancy was created when Sullivan negotiated a new contract with other justices late last year, and that she should be the one to fill it. DiPippa said that argument showed Baker knew her initial order had a problem. He said the law is silent about the other employees. 

It’s not clear how this mess will resolve itself. Typically it would be decided through litigation that, in this case, would be decided by the Supreme Court itself. Would it be Chief Justice Baker vs. Arkansas Supreme Court, or the other way around? If a case came before the Supreme Court, everyone except maybe Hudson would have to recuse. Gov. Sanders would appoint temporary justices to hear the case. 

DiPippa believes the Legislature, which went into its regular session Monday, has the power to clarify the law. But even if that happened, the Supreme Court might declare the new law unconstitutional.

Legislators don’t appear to have much interest in doing anything at the moment. Speaker of the House Brian Evans, R-Cabot, and Senate President Pro Tempore Bart Hester, R-Cave Springs, texted that they were unaware of any pending legislation. Evans wrote, “As much as the judicial branch allows the legislative branch to operate independently, I believe we would extend that same courtesy to the judicial branch.” Hester wrote, “The Supreme Court is a separate branch of government, and I am confident they will work out their disagreements.”

I’m sure, somehow, they will. As of now, the 10 employees are still working.

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