The Arkansas Supreme Court (from left): Barbara Webb, Rhonda Wood, Karen Baker, Chief Justice Dan Kemp, Courtney Hudson, Shawn Womack and Cody Hiland. (Photo courtesy of Arkansas Judiciary)
This story first appeared in the Arkansas Times’ Arkansas Blog and is republished here by permission.
Infighting on the Arkansas Supreme Court has reached a new level of acrimony recently, with justices accusing their colleagues of improper conduct and referring one another to a state judicial discipline panel for reprimand.
The dispute concerns email correspondence to Justice Courtney Hudson from Lisa Ballard, the former director of an agency overseen by the court. Ballard was fired in May under mysterious circumstances. The emails have been sought by Mark Friedman, an Arkansas Business editor, who filed a Freedom of Information Act request with the court in August. Hudson tried to keep the emails under wraps, claiming they were exempt under the state FOIA, but five justices on the seven-member high court took extraordinary steps last weekto force their release.
Arkansas Supreme Court Justice Courtney Hudson (Arkansas Supreme Court)
Now those emails have been made available by Hudson herself, whose attorney sent them to the ArkansasTimes in response to a FOIA request. (Hudson only released the emails Ballard sent to her, rather than herreplies back to Ballard; all parties agree that emails from a Supreme Court justice are exempt from FOIA.)
The Arkansas Times also received identical documents on Tuesday in response to a FOIA request to the Office of Professional Conduct, or OPC, the state Supreme Court agency Ballard oversaw before her firing on May16. OPC is responsible for disciplining Arkansas attorneys for ethics and rules violations. It is distinct from the Judicial Discipline and Disability Commission, the quasi-independent agency responsible for disciplining judges.
Here are the emails from Ballard to Hudson — but anyone hoping for lurid details will likely be disappointed. The emails mostly concern operational matters at OPC, including an employee’s request for leave, a proposal for sizable raises for OPC staff, and a disagreement over whether the $195.50 purchase ofan air fryer at Sam’s Club counted as a legitimate office expense. On May 15, the day before she was fired,Ballard sent Hudson a memo objecting to plans to move OPC’s offices from Riverfront Drive in Little Rock toa building in the state Capitol complex.
Ballard, a family law attorney in North Little Rock, represented Hudson in her 2019 divorce, according tothe Arkansas Democrat-Gazette. The emails show Ballard often informed Hudson when controversy surfaced regarding OPC, perhaps looking to her for aid. She forwarded a number of the emails to Hudson’s personal Gmail address. But Hudson also served as the official justice liaison to OPC, and communication between her and the agency’s director would be expected. On the surface, at least, it seems hard to believe the mundane exchanges in Ballard’s emails could lead to such a rancorous public dispute on the state’s highest court.
The backstory
Ballard was terminated on May 16 without a statement or explanation from the Arkansas Supreme Court. Just over three months later, on Aug. 23, Friedman sent a FOIA request to OPC and another court agency, the Administrative Office of the Courts (AOC), requesting “[a]ny and all communications” sent after Jan. 1, 2023, between Ballard and several people, including Justice Courtney Hudson.
According to an email sent to Hudson and Chief Justice Dan Kemp on Sept. 3, the only potentially responsive documents were emails between Hudson and Ballard, and those were not subject to release under the FOIA. That email was sent by OPC deputy director Charlene Fleetwood, who has served as the agency’s acting director since Ballard was fired in the spring. Fleetwood also noted that her office is not the custodian of those records as that term is defined in the FOIA.
When the request was received, conventional wisdom was that emails to a justice were exempt under the FOIA’s “working papers exemption,” which excludes “unpublished … correspondence of the … Supreme Court Justices” from release under the FOIA. In his seminal handbook on Arkansas’s FOIA, which theArkansas Supreme Court has repeatedly quoted as persuasive authority, Prof. John Watkins says that the exemption does not only apply to the elected officeholder, but also “applies across-the-board to staff members and private consultants for all officials listed in the states, i.e., the … Supreme Court Justices.”
Despite this, Kemp (who is not a custodian of the requested records) forwarded Fleetwood’s Sept. 3 email to the other justices (who are also not custodians of the requested records), writing:
At some point prior to the Sept. 5 deadline, and despite having no case or legal challenge in front of them that would grant them jurisdiction over the matter, five justices voted to have Fleetwood release the emails toFriedman. Justice Karen Baker agreed with Hudson that the emails should not be released. On Sept. 5, Kemp again emailed the other justices, noting the 5-2 vote but also raising the issue of the working papersexemption, so the justices could reconsider their vote based on that information if they had not previously considered it.
Also on Sept. 5, Zach Mayo, general counsel for the Arkansas attorney general, sent a memo to the justices, agreeing with Hudson’s position that neither AOC nor OPC was custodian of the requested records. Even if they were, Mayo said, the working papers exemption would apply and prevent release.
Despite the exemption and the memo from the attorney general’s office, it appears none of the justices changed their position. The following morning, before the records could be released, Hudson filed a lawsuit and motion for preliminary injunction in Pulaski County Circuit Court, seeking an order declaring the records exempt from the FOIA and preventing their release. Circuit Judge Patricia James granted a preliminary injunction that morning, preventing the release of the records until the lawsuit was resolved.
The circuit court held a hearing on the preliminary injunction on Sept. 18. Justin Zachary, an attorney representing Hudson, submitted the emails from Kemp to the other justices as exhibits ahead of the hearing, making them publicly available for the first time. He also issued subpoenas for several sets of records from the other justices.
Because there were no objections to the requested extension, the hearing was brief, and James extended the preliminary injunction “for a reasonable amount of time” to allow the parties to respond to various legal pleadings. And that was where things stood for six days.
On Sept. 24, in an unsigned opinion, five justices used the Supreme Court’s “superintending control” of lower courts to dismiss Hudson’s lawsuit in the circuit court. According to the court, five justices had voted to require the release of certain requested records, and allowing a circuit court to stay that order “would usurp the supreme court’s authority guaranteed by the Arkansas Constitution” and “would also allow any dissenting justice to halt the administration of the supreme court by seeking additional review whenever he or she disagrees with an internal court decision.”
The five justices did not stop there. Apparently miffed that Kemp’s emails had been used as exhibits, the justices referred Hudson and her attorney for possible disciplinary proceedings for publishing the emails, allegedly in violation of the Code of Judicial Conduct and Arkansas Rules of Professional Conduct.
The only two justices who didn’t join the majority opinion were Hudson and Justice Karen Baker. Because the court gave the justices only 23 minutes to read the unsigned opinion before it was released, Baker’s dissent came a few days later.
Arkansas Supreme Court Justice Karen Baker (Courtesy Photo)
In a blistering, five-page opinion, Baker called out the other justices for breaking with longstanding tradition and rules, apparently to avoid being served with subpoenas for their records. She noted the court’s clear lack of jurisdiction over the matter from the start, and said they clearly misinterpreted the working papers exemption by applying it only to communications from Hudson when the statute says “communications of” the justices. Baker ended by referring the five justices who voted to release the records to the Judicial Discipline and Disability Commission for “breach[ing] the public trust” with their actions.
The emails
Though Ballard’s emails to Hudson are hardly thrilling, they do hint at conflict over operational matters among Supreme Court staff.
For example, in early February, Ballard traded emails with Melanie Fleming, the finance officer for the state Supreme Court, after another staffer told Ballard that OPC had been remiss in using an official credit card to buy a $195.50 air fryer. “We cannot pay for this item it is not considered an office supply,” the staffer said.
Ballard objected, saying OPC had other food-related items on hand, such as coffee makers and a microwave. “I intend to purchase soft drinks and snacks to have on hand for our committee members to enjoy when they come here to do their work,” she said.
In a Feb. 12 email to Fleming, Ballard said she felt she was being singled out among other Supreme Court staff: “In the nearly three years I have been the Executive Director, it has been my desire and intention to be aworthy guardian of the Bar’s resources. In spite of your assurances Melanie, that I have not been unfairly scrutinized, I continue to believe that I have.”
On May 2, Ballard sent Hudson the draft of a letter regarding proposed raises and other expenses for OPC. “Is this ok to send to the Court? Please advise,” she wrote.
The proposal included $15,000 salary hikes for Ballard and OPC deputy director Charlene Fleetwood, along with $6,000 to $7,500 increases for three others, plus $95,000 to hire an additional attorney. It also included another $6,000 for the department for various expenses associated with travel and court hearings around the state. It isn’t clear from the released emails whether Ballard ever sent the proposal to the rest of the Supreme Court justices.
On May 8, Fleming, the finance officer, emailed Ballard about one of Ballard’s staff attorneys, Anna Catherine Cargile. “I see on Anna’s April monthly leave report, she has claimed the Emergency tornado leave usage of 10.5 hours,” Fleming wrote — seemingly a reference to the 2023 Little Rock tornado.“Unfortunately, this emergency tornado leave did not carry over into the new year. The intention of the leave was to be used immediately after the emergency disaster was declared.”
Ballard replied to Fleming later that morning: “Anna Catherine’s home has only just now been restored from the damage done by the tornado. She used the leave to be off for the movers to deliver and install the contents of her home. Is there an opportunity to run this by the Chief as I am confident that the intention was for the Bar employees not to suffer extra harm as a result of the tornado. If I need to make a plea to someone else, please let me know.”
Ballard also forwarded the email to Hudson. “I thought I would go ahead and send this while continuing to hope that Melanie/Mary do the right thing in regards to Anna Catherine’s tornado leave,” Ballard told Hudson, explaining her position that the leave days did not expire within a certain time frame.
In the emails that follow, Ballard and Fleming appear to work out the situation between the two of them. Ballard wrote at one point, “If needed, I can ask Justice Hudson to intervene so that there is no problem with the accounting.”
Fleming said that wouldn’t be necessary: “No, I think we can handle it on our end.”
The day before Ballard was fired, on May 15, she emailed Hudson a memo expressing displeasure with a planned move of OPC from 2100 Riverfront Drive to offices at the Rockefeller Building. (OPC had been housed in the Riverfront Drive offices since 2012, according to Ballard, but the lease was set to expire.)
“The space is a reduction by more than 2,000 square feet,” Ballard said in the memo. “With the setup, there are a number of issues, but the most significant deficiency is there is NO HEARING ROOM. In addition, there is no space to hold a staff meeting, no designated copying and printing area, supply storage area.” She expressed concerns over maintaining confidentiality in the smaller space, given the sensitive nature of OPC’s work. She also said the court should be able to secure more favorable terms on its lease of the Riverfront Drive space.
“In the meetings I have attended, the landlord has made it clear that the terms could be better if we agreed to a longer lease period,” Ballard wrote. “A proposal was made for this year’s renewal amount, but no counter offer was made, which I have on good authority would be seriously considered. (The silent partner is an 82 year-old man who has substantial real estate holdings in Pulaski County, but does not want to be identified.)”
The next day, May 16, Ballard was terminated. No explanation has been given for the firing. Anna Cargile, the attorney who requested tornado leave in early May, resigned the next day.