The Arkansas Supreme Court drama continues apace.
On Jan. 1, Chief Justice Karen Baker was sworn in as the fresh head of the seven-member court. Two days later, a five-justice majority stopped Baker’s planned termination of nearly a dozen court employees and issued a fresh administrative order that would prevent Baker from firing court staff in the future. Yesterday, the same majority issued an opinion undoing Baker’s appointments to the Judicial Discipline & Disability Commission.
Now, Baker has fired back.
In a 10-page order handed down Wednesday afternoon, Baker laid out the case for her authority as chief justice and declared the majority’s two recent opinions and administrative rule void as a matter of law. She also made it a point to call out the majority’s efforts as little more than sour grapes from Justice Rhonda Wood and Justice Barbara Webb, who ran against Baker last year for the chief justice seat.
After laying out a brief history of Amendment 80, which revised Arkansas’s court system in 2001 and gave the chief justice certain administrative powers, Baker quoted from an unpublished 2017 memo authored by then-Chief Justice Dan Kemp. As we reported yesterday, Kemp’s memo specifically addressed a motion at the time from Justice Courtney Hudson to remove the administrative oversight from the purview of the chief justice and handle administrative and employment matters by majority vote of the court.
In denying Hudson’s 2017 motion, Kemp wrote:
I hereby rule that a vote on such motion by the associate justice on administrative matters or administrative authority is invalid, null, and void. If, over my objection, the associate justices vote on such matters, then, as Chief Justice, I will enter an order contravening that vote and will declare it invalid, null, and void. The order will be filed in the Clerk’s office of the Arkansas Supreme Court, and it shall be a public record. This statement shall be attached to my order and shall also be made a public record.
Baker’s order today follows the roadmap Kemp laid out above.
In their opinion last week, the majority issued Administrative Order 24, which removed the ability of the chief justice to fire court staff. According to Baker’s order today, that opinion is “null and void and the purported Administrative Order 24 is stricken pursuant to Amendment 80 … and relevant statutory law.” Baker directly addressed the opinion’s conclusion that she lacked the authority to terminate Marty Sullivan, executive director of the Administrative Office of the Courts, or AOC.
After noting that Amendment 80 gave the chief justice administrative authority over the functions of the court, “which necessarily includes personnel matters within the AOC,” Baker accused the majority of failing to reference the right statute when reaching their conclusion. According to Baker, Arkansas law says the director of the AOC “shall be nominated by the Chief Justice,” and the statute does not limit this nomination power to times when the office is vacant.
“To be clear,” Baker wrote, “the statute does not contemplate a nomination only upon a vacancy or other triggering event or circumstance, and we have stated that the rules of statutory construction do not permit us to read into a statute words that are not there.” The duly sworn Chief Justice is authorized to nominate a director of the AOC, Baker said. “My predecessor nominated his choice for Director; and I will now nominate mine.”
Baker also objected to an employment contract for Sullivan that was signed in December. At the time the contract was executed, Sullivan had been director of the AOC for just over seven years.
On Dec. 16, Kemp and four other justices entered into a contract with Sullivan that raised his salary to just under $200,000 per year — a raise of about $13,000 annually over what he had been earning — and gave him an eight-year term of employment. The fresh contract prevented Sullivan from being terminated except for cause, which could only be determined by a majority vote of the justices. Any dispute over the contract would also require the state to engage in binding arbitration. (The court’s current interpretation of sovereign immunity would seem to prohibit this requirement, though that has not been tested in court thus far.)
According to Baker, Sullivan’s employment contract is illegal on its face “as it was entered in contravention of Amendment 80” and prevents Baker from exercising her power to nominate an AOC director. Additionally, Baker said, the contract was a violation of Sullivan’s ethical responsibilities because he helped draft the agreement, in violation of the statutory prohibition against a state employee participating “in any other particular matter pertaining to any contract … in which [the employee] has a financial interest.”
The contract with Sullivan did have one effect, according to Baker. “I consider Sullivan’s signature on the purported agreement for the provision of his professional services to be his resignation as a state employee,” she wrote.
Baker also addressed the order handed down yesterday that reversed her nomination of three judges to the judicial discipline committee. “As noted by former Chief Justice Kemp,” Baker wrote, “the Chief Justice is the chairperson of all conferences and meetings of the court.” In this role, Baker had scheduled the court’s first meeting on administrative matters for Jan. 23, with a Jan. 16 deadline for any justice to add items to the Jan. 23 agenda.
“In spite of this, on January 6, five associate justices convened an unauthorized business meeting while the court was in recess,” Baker wrote. She continued:
During the meeting, the participating members discussed appointments to the Arkansas Judicial Discipline and Disability Commission (“JDDC”) and voted to issue a per curiam reappointing Circuit Judge Earnest Brown and appointing Circuit Judges Thomas Smith and Troy Braswell to the JDDC. The full court would have had ample opportunity to resolve any issues regarding the appointments to the JDDC at the business meeting scheduled on January 23, as there was no emergency necessitating an unsanctioned business meeting during the court’s recess. However, rather than waiting for the meeting of the full court, the five participating justices decided to proceed with a meeting outside the court’s normal course of business and vote to approve three appointments in the absence of the two most senior justices on the court, including myself, the Chief Justice.
Baker said she attempted to reach a reasonable compromise on this issue, informing the other justices that she did not object to the appointments of Judge Earnest Thomas or Judge Thomas Smith. “However,” Baker wrote, “I reminded the writing justice that I have a standing objection to the appointment of Judge [Troy] Braswell to the JDDC as I understand that he harbors actual bias toward me,” which Baker said the other members of the court had been aware of since at least October.
“The court’s longstanding custom and practice dictates that an appointment is invalid if any member of the court raises an objection to the proposed appointee for any reason,” Baker added.
Because the justices moved forward with Braswell’s appointment, despite Baker’s authority to schedule the meetings and despite past practice regarding objections to appointments, Baker said the Jan. 7 order was “another instance wherein the majority has attempted to improperly wield the constitutional authority of the Chief Justice over administrative matters” and was therefore null and void.
Baker also did not mince words when it came to laying the blame for the court’s recent disputes at the feet of Justices Rhonda Wood and Barbara Webb. “Notwithstanding the will of the people in selecting me to serve in this position,” Baker wrote, “two of my opponents in the Chief Justice race that remain on the court are now attempting to take what the people would not give them by force.”
She concluded the opinion by urging the five justices who authored the recent opinions to focus on their jobs, not hers.
I am the people’s choice for Chief Justice—not any of the associate justices, whether together or separate. The State of Arkansas would greatly benefit from an capable judiciary. To accomplish this, the associate justices must divert their fixation from the constitutional duties and responsibilities of the Chief Justice, and instead, dedicate their full attention to the duties in which they were elected or appointed to carry out.
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Overall, the opinion is well-reasoned and clear in its arguments. Because there’s no state court above them, however, and because a federal court is highly unlikely to touch this matter for multiple reasons, resolving this fight comes down to one side or the other backing down.
If the five justices opposing Baker comply with today’s order, the court might actually be able to focus on the backlog of cases — they’ve issued only 10 substantive opinions in pending cases since Halloween — and do the jobs they were elected (or appointed) to do. If they don’t, this power struggle seems likely to continue over the coming weeks and months, and the whole state will be worse off for it.
