The Arkansas Supreme Court is not beating the allegations of dysfunction and in-fighting anytime soon.
Associate Justice Courtney Hudson filed a lawsuit Friday, seeking an injunction against the Administrative Office of the Courts (“AOC”), the Supreme Court Office of Professional Conduct (“OPC”), and the directors of both offices to prevent the disclosure of certain emails under the Freedom of Information Act. Circuit Judge Patricia James granted the requested preliminary injunction a few hours later, possibly setting the stage for an airing of grievances between members of the high court.
And make no mistake: the other justice may not have been named as defendants, but this case is very much a proxy fight between Hudson and five of the other Supreme Court justices.
According to the complaint filed in Pulaski County Circuit Court, the entire thing began when Mark Friedman, Senior Editor of Arkansas Business, sent a Freedom of Information Act request to the Administrative Office of the Courts and the Supreme Court Office of Professional Conduct on Aug. 23, requesting “any and all communications” since January 1, 2023, between Hudson and Lisa Ballard, who was fired as head of the Office of Professional Conduct in May with no reason given publicly for the termination.
The complaint alleges the only potentially responsive documents were emails between Hudson and Ballard, of which Hudson is the sole legal custodian under the FOIA, and the records are exempt from disclosure under the FOIA provision that exempts “unpublished … correspondence of the … Supreme Court Justices.” The complaint goes on to allege that defendants Marty Sullivan (head of the Administrative Office of the Courts) and Charlene Fleetwood (acting head of the Office of Professional Conduct) were not custodians of the records and, more importantly, that “Fleetwood intended to respond to the August 23, 2024 freedom of information request by stating that the requested communications were exempt from disclosure.”
It was then that other Supreme Court justices got involved, according to the complaint:
Upon learning of Fleetwood’s position that the information requested was exempt from disclosure, five Supreme Court Justices voted to overrule Fleetwood’s position and have any materials found be produced including correspondence of Justice Hudson. Like Fleetwood, these five Supreme Court justices are not custodians of the requested documents and do not have authority to turn them over pursuant to FOIA.
Hudson argues the other justices are not custodians of these records and that their vote to require production of the communications “bypassed [Hudson’s] rights under FOIA and attempted to unilaterally mandate production over which Justice Hudson is the custodian.” She further contends the justices’ “vote” to require production “was wholly improper because, in essence, the Court acted to determine an issue of statutory construction without jurisdiction and without any pending appeal.”
She argues the justices lacked “any authority whatsoever” to order the defendants to provide the records or to order Hudson to do so. She further contends that, unless the circuit court grants her motion for injunction, the requested records will have to be produced, prejudicing Hudson’s ability to have the court determine whether the records are exempt prior to releasing them.
In support of her arguments, Hudson included a memorandum from the attorney general’s office, which agreed that Hudson was the only custodian of the requested records, that the Office of Professional Conduct director is not the custodian of the records and can’t be ordered to produce them, and that the records are exempt under the FOIA as unpublished correspondence of a Supreme Court justice.
Just before lunch Friday, Judge James granted Hudson’s request for preliminary injunction in a one-page order that expressly forbade anyone from providing the records referenced in Friedman’s request until after the circuit court reaches a decision in the case. Ironically, given Hudson’s complaint is based on other justices’ failure to follow the law, Judge James’ order granting the preliminary injunction suffers from an apparent procedural flaw that could trigger an additional level of fighting between the parties.
Under Arkansas’s procedural rules, a preliminary injunction may only be granted if notice has been given to the adverse parties. Nothing in the order or the record says whether the defendants were notified of the suit and given an opportunity to be heard before the injunction was granted.
It is unclear from the complaint, exhibits, or order what the requested communications are about or why five other justices felt so strongly that the records should be disclosed, despite the apparent exemption. Regardless — even if the information in those communications is something the public would very much like to know and has no way of discovering other than Hudson’s emails — Hudson is almost certainly right about both the what the FOIA does and does not allow in this instance.
Hudson and the attorney general’s memo correctly note that the Office of Professional Conduct was not created by the Legislature, but by the Supreme Court. As such, the OPC exists as part of the Supreme Court, to help the court carry out some of its constitutional duties. According to the leading treatise on the FOIA, when the Supreme Court held in an earlier case that the exemption applied to staff of the named officials:
The Court appeared to be influenced … by the fact that lawyers on the Attorney General’s staff stand in his shoes in providing legal representation to state agencies. … The Attorney General has adopted this “stand in his shoes” reading.
Assuming OPC “stands in the shoes” of the Supreme Court when it assists the court with management and supervision of attorneys and other constitutional duties of the court, the exemption for “unpublished correspondence of Justices of the Supreme Court” would apply. Any other interpretation would leave the justices’ correspondence with anyone but other justices subject to disclosure under the FOIA, functionally eviscerating the exemption.
The justices’ decision to order the records released would also be at odds with the court’s handling of prior FOIA requests.
In 2011, when I still worked for the Supreme Court, the Republican Party of Arkansas sent a FOIA request to the court for all of my emails. The court essentially told the RPA to pound sand; my emails as assistant criminal justice coordinator in an office under the authority and control of the Supreme Court were exempt under the same exemption that covered the justices’ emails.
Friedman’s FOIA request to the court also requested communications between Ballard and Allison Hatfield, Ann Laidlaw, Doug Smith and Linda Napper. Hatfield is chief of staff and general counsel at the Arkansas Department of Commerce. Laidlaw is director of the division of building authority for the Arkansas Department of Transformation and Shared Services. Smith is a member of the Arkansas Parole Board. Napper is a political consultant with experience on several judicial campaigns, including Hudson’s 2024 race.
According to the complaint, there were no communications responsive to these requests. Hatfield, Laidlaw, Smith and Napper’s relationship with Ballard and/or why those people were specifically named in the FOIA request is unclear.
The case is styled as Courtney Rae Hudson v. Arkansas Administrative Office of the Courts, et al., 60CV-24-7576.
