Arkansas Supreme Court Associate Justices Karen Baker (left) and Rhonda Wood. (Arkansas Secretary of State)
A dispute over emails at the Arkansas Supreme Court overshadowed the typically quiet campaign for the court’s chief justice post in the past two months.
The disagreement saw the justices refer one another to the court’s disciplinary tribunal and heated up the contest between justices Karen Baker and Rhonda Wood for chief justice. The two court veterans were the top two vote-getters in a four-person primary election in March. They seek to replace current Chief Justice Dan Kemp, who is retiring at the end of the year.
While Baker and Wood are part of a conservative majority on the court, stark differences in their approach came to the fore in the email case. It began when Justice Courtney Hudson filed a lawsuit in Pulaski County Circuit Court seeking to stop the release of emails between her and a former court employee that a journalist had sought under the state’s Freedom of Information Act.
Wood was among five justices who snatched the case away from the circuit court; ordered emails sent to Hudson, but not from her, made public; and referred Hudson and her attorney to their respective disciplinary commissions for “flagrant breaches of confidentiality” by filing emails of other justices into evidence in the lawsuit.
Baker fired off a harsh dissent on the decision, criticizing her colleagues for “an unprecedented misuse of our authority” and demonstrating “a fundamental misunderstanding” of the state Freedom of Information Act.
The FOIA clearly exempts all correspondence of Supreme Court justices and court employees from public disclosure, she said in her dissent.
“The majority has, once again, chosen to liberate itself from the shackles of our longstanding precedent and the plain language of statutory law in order to reach a particular result. 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.”
In the end, Hudson and her attorney released the emails that had been requested by the journalist.
In interviews last week, Wood described the public spat over the emails as unfortunate and said the episode “damaged the public’s confidence in the court.” That disappoints her, she said, because “that matters to me tremendously.”
Baker was more blunt: “Sure, it’s damaged the court’s credibility. …It was embarrassing. Five members didn’t understand the FOIA.”
She again criticized the five members who took over the email case, who voted without including the other two justices: Baker and Hudson.
“We’ve seen how badly things can go wrong when the senior justice wasn’t included in the discussions,” Baker told the Advocate. “The court isn’t five justices. We need to have the full court involved.”
Baker said she was stunned that the majority referred Hudson and her lawyer to discipline and was completely surprised by her colleagues’ actions.
“I hope I could have had some influence if I had been included in the discussions,” she said.
Wood said the idea that the chief justice race “is about one case assumes the public hasn’t been paying attention. It’s disappointing people are focusing on that one thing.”
Nevertheless, both candidates said they believe the court can return to the normal give and take of case deliberation after the winner takes office in January.
“I hope we can start rebuilding in January,” Baker said.
“I think we’ll go back to doing things the way we have,” Wood said, noting that “both of us are still going to be on the court.”
Background, philosophy, role
Both candidates described the chief justice’s primary role as administrator of the state’s courts.
The chief justice sets the court’s calendar and sets budget meetings, Wood said. The Supreme Court has a $53 million budget and more than 400 employees.
Baker has been a jurist for almost 30 years, starting as a circuit judge in Pulaski County in 1995, according to the Supreme Court website. She served on the state Court of Appeals from 2001 to 2010. She earned her law degree in 1987 from the University of Arkansas at Little Rock Bowen School of Law.
Wood began her time on the bench as a Pulaski County circuit judge in 2007 and moved to the Court of Appeals in 2013. She joined the high court in 2015. Wood also obtained her law degree from the UALR Bowen School of Law in 1999, graduating with highest honors, according to her court biography.
Asked who or what most influenced her career, Baker cited Judge Watson Villines, whose 1995 death just before her appointment to the bench inspired her support of the Judges and Lawyers Assistance Program, a mental health and substance abuse support program created by the Supreme Court in 1999.
Wood cited retired Justice Annabelle Imber Tuck because “when I came up, there were no female role models.” Tuck became the first woman elected to the state’s high court in 1997; she retired in 2011. Wood also cited the late Wiley Branton, a judge who inspired her involvement with juvenile justice issues.
Both candidates described their judicial philosophy as conservative. Wood said her philosophy is very conservative — “not politically, I stay in my lane.” She also said she’s “definitely an originalist,” referring to the legal theory that legal texts, including the U.S. Constitution, should be interpreted with the original meaning they would have had when they became law.
In describing her philosophy, Baker said, “We should read the law as written without adding or taking away anything,” but she eschewed “descriptors like originalism or textualism.”
Wood said one of her priorities if she becomes chief justice will be to develop a strategic plan for the high court, which she said is overdue. She noted that she teaches strategic planning for state courts nationally.
Another responsibility of the chief justice is oversight of specialty courts, like drug court and veterans courts. Wood said she looks forward to expanding the availability of veterans courts.
Baker said she’s keenly interested if she wins in addressing an ongoing deficit in the court’s bar account, which is funded by attorney licensing fees.
The account “is in serious financial trouble,” she said, adding that it’s approaching a $1 million shortfall. A proposal made last year to increase license fees to help close the gap was put off because of this year’s elections, she said.
Supreme Court Clerk Kyle Burton told the Arkansas Democrat-Gazette in September that the bar account has a projected loss of $199,158 in the current fiscal year.
The bar account should be used for the benefit of attorneys but hasn’t always been, Baker said.
“Getting control of that situation will be one of my first objectives,” Baker said.
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Ballot initiatives
Three ballot measures have gone before the state Supreme Court this summer:
A proposed constitutional amendment to establish a limited right to abortion
An amendment to repeal a casino license for Pope County and require a local vote for any future casino licenses
An amendment to expand access to medical marijuana
When the high court in August ruled 4-3 in favor of Secretary of State John Thurston’s rejection of signed petitions for the abortion amendment, Baker and Wood voted on different sides.
Wood wrote the majority opinion in the abortion amendment ruling. The opinion sided with Thurston’s view that the group behind the initiative failed to follow state law requiring ballot campaigns to submit affidavits saying they provided the latest handbook on initiatives and referendums to paid canvassers and briefed them on the laws regarding canvassing.
Arkansans for Limited Government argued in its petition to the Supreme Court that Thurston had erred in not counting signatures gathered by paid canvassers and that AFLG had indeed submitted the required affidavits, though not on the date when signatures had to be turned in.
“We find that the Secretary correctly refused to count the signatures collected by paid canvassers because the sponsor failed to file the paid canvasser training certification,” Wood wrote for the majority.
The finding meant AFLG failed to obtain the required number of signatures (90,704) to have the abortion-rights amendment appear on November’s ballot.
Baker strongly disagreed with the majority, saying they stripped away voters’ rights.
The Arkansas Constitution makes clear that “[t]he first power reserved by the people is the initiative,” Baker wrote in her dissent. “It is much more than an anomaly.”
Baker also wrote that the majority misinterpreted the law. The canvasser certification and the petition signatures don’t have to be filed simultaneously, she said.
“On the contrary, this requirement was made up out of whole cloth by [Thurston] and inexplicably ratified by the majority of this court,” she said.
She said the majority “has reconfigured the relevant statute in order to cater the initiative process to the preference of the respondent.” Although the majority opined that the “court cannot rewrite the statute, the majority has done just that multiple times to achieve a particular result,” Baker wrote.
Just last week, Baker and Wood came down on the same side in the anti-casino initiative case. The court issued two separate rulings, which had the effect of assuring that votes cast on the question will be counted in November. Baker wrote for the majority in the second of the two rulings, with Wood concurring. Hudson wrote the unanimous opinion in the first of the casino measure decisions.
The marijuana amendment issue has yet to be decided. Early voting in Arkansas starts Oct. 21.
Wood said that as chief justice, she’ll put together a task force to consider an expedited timeline for handling ballot initiatives. The court doesn’t have specific rules on timing, she said.
“We know we’ll have it every two years. It’s usually the same or similar groups involved” in challenging the secretary of state’s decisions to certify or reject ballot measures, she said.
The secretary of state has a deadline for certifying initiatives, which would help the court in developing a standardized process and avoid uncertainty, Wood said.
In a statement to the Democrat-Gazette, Baker said the “best way to ensure certainty … in the ballot initiative process specifically, is to follow the law as it is already written.”
Wood’s plan is “merely a desperate attempt to convince voters that she will ‘fix’ what she has ‘broken,’ if only they will elect her Chief Justice,” Baker told the newspaper.
Laying out their case
Comparing her qualifications to Baker’s for chief justice, Wood said she has the leadership experience and skills.
“There are two types of judges — one comes in, decides cases and goes home; the other sees themselves as true public servants and dedicates themselves to improving the justice system,” Wood said. “This shows commitment to leadership.”
Wood cited her service on numerous court committees, which “helps her understand the needs of various constituencies — court reporters, clerks, circuit courts, juvenile courts.”
Baker said she has more experience, nearly twice as many years as Wood.
“I served at every stage of the judiciary. I’ve seen a lot of things,” she added.
In the emails case and in her interview with the Advocate, Baker called for the court’s administrative meetings to be open to the public and the press invited to attend.
She noted in the emails case dissent that the majority “painted its conduct as though [it was] an administrative matter,” in order to silence a lower court case “certain to yield unfavorable information.”
“The only cure for this is sunlight,” Baker wrote.
Wood said she’s called for greater transparency in court matters for years, including in a public forum in February. She said she’s unique among the justices in that she posts notices of her committee meetings on X and includes journalists in the notifications. She also said she started a podcast on state courts five years ago.
“I think I’ve been the most transparent candidate,” she said.
In response, Baker said Wood “most recently joined an opinion that punished people for revealing a ‘confidential administrative matter.’ I don’t feel we have any confidential administrative matters.”
Wood said her focus is on making the court more responsive and citizen friendly.
“I want to get the court into the public service business. I want it to solve problems, not create problems,” she said.
Regarding the election’s outcome, Baker said she trusts the voters.
“This will be the 12th time I’ve stood for election, and whatever decision the voters make will be the right one.”
In the March primary, Baker led a field of four candidates, including one other fellow justice, with 27% of the vote. Wood came in second with 26.3%.
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