Chief Justice Karen Baker also denounces an employment agreement between five justices and a judicial employee she attempted to fire last week
By Tess Vrbin, Arkansas Advocate
Arkansas Supreme Court Chief Justice Karen Baker on Wednesday declared invalid two per curiam orders her fellow justices issued in the past week, the latest development in an ongoing dispute over the scope of her authority.
In a 10-page opinion, Baker cited Arkansas Constitutional Amendment 80, which states in part: “The Supreme Court shall exercise general superintending control over all courts of the state and may temporarily assign judges, with their consent, to courts or divisions other than that for which they were elected or appointed. These functions shall be administered by the Chief Justice. (Emphasis added.)”
Baker said this language gave her sole authority to appoint three new judges to the Judicial Discipline and Disability Commission, which she attempted to do Jan. 1 within half an hour of being sworn in as Arkansas’ first elected female chief justice.
A majority of the remaining justices said in a Monday order that the appointments were null and void and appointed three other judges to the commission instead. Amendment 66 to the Arkansas Constitution and state law give the Supreme Court authority to appoint three members to the commission of nine judges, though the judiciary website shows 17 members.
Baker wrote in Monday’s order that she did not object to the appointment of Circuit Judge Thomas Smith of Bentonville or the reappointment of Circuit Judge Earnest Brown of Pine Bluff. She dissented to the appointment of Circuit Judge Troy Braswell of Conway.
In Wednesday’s order she said Braswell “harbors actual bias” regarding her and that her objection should nullify his appointment, per the court’s “longstanding custom and practice.” She also said the court had been aware of her objection since October.
“This is yet another instance wherein the majority has attempted to improperly wield the constitutional authority of the Chief Justice over administrative matters,” Baker wrote.
The justices said in Monday’s order that Baker did not have the authority to act unilaterally and should have consulted them before making the appointments.
Baker’s colleagues, with the exception of Associate Justice Courtney Hudson, issued a similar rebuke Friday after Baker attempted to fire 10 Administrative Office of the Courts employees, including Director Marty Sullivan. The five-justice majority said the chief justice cannot fire some judiciary employees without the full court’s approval, citing the portion of state law that says the AOC director serves “at the pleasure of the Supreme Court.”
In Wednesday’s opinion, Baker cited the same law but emphasized the provision that gives the chief justice the power to nominate the AOC director. Former Chief Justice John Dan Kemp nominated Sullivan, and Baker said she plans to nominate her choice for the position.
Additionally, “pursuant to Amendment 80 as discussed above, I am charged with administering the functions of the court, which necessarily includes personnel matters within the AOC,” Baker wrote.
She also cited a state statute that says the chief justice is “directly responsible for the efficient operation of the judicial branch and of its constituent courts and for the expeditious dispatch of litigation therein and the proper conduct of the business of the courts.”
“It is important to note that the court’s administrative authority has always been held, and was always meant to be held, by only one person,” she wrote.
She publicly reiterated a statement she made in a Monday email to judicial staff, obtained via an Arkansas Freedom of Information Act request, referencing a 2017 memo from Kemp as a basis for her authority.
Kemp, who did not run for reelection last year, claimed in the signed memo that a majority of the court could not vote to “exercise control over administrative matters” because this would “impair the constitutional authority of the Chief Justice.” He said any such majority vote would be null and void. He also said the memo would be filed in the Supreme Court clerk’s office, but Clerk Kyle Burton confirmed Tuesday that it was never filed.
Baker’s opinion also took issue with an employment agreement five justices, including Kemp, made with Sullivan in December, guaranteeing him job security until the end of 2032. She included the agreement in the opinion and said it was illegal because it contradicted Amendment 80 and was an attempt to “commandeer [her] authority.”
The agreement includes a base salary of $199,650, which totals nearly $1.6 million after eight years. The contract also states it was “drafted jointly by the Parties.”
Baker cited a state law that says it is “a breach of ethical standards for any employee to participate directly or indirectly… in any other particular matter pertaining to any contract or subcontract” in which “the employee or any member of the employee’s immediate family has a financial interest.”
“Therefore, Sullivan would have had to resign in order to enter into the purported employment agreement,” Baker said, adding that she considered his signature on the agreement his resignation.
Sullivan declined to comment Wednesday evening. The other five Supreme Court justices issued a statement saying Baker’s “later-filed dissent” from their two orders “has no legal effect beyond that of a dissenting opinion.”
On Dec. 4, Chief Justice-elect Baker entered Sullivan’s office while he was not present. Hudson was present outside the office, but it was not clear whether she entered. The following day, a majority of the Supreme Court created a rule that justices cannot enter a locked office of anyone besides their staff without permission.
Arkansas Business reported on the matter Dec. 11, the day after five Supreme Court justices voted to draw up Sullivan’s contract. The report included video footage of Baker and Hudson, received via FOIA.
Talk Business & Politics reported Dec. 17 that Baker told Supreme Court Chief of Police Pete Hollingsworth she did not want the video footage of her entering Sullivan’s office “going around.” Hollingsworth was among the employees Baker attempted to fire Friday.
Besides Kemp and Sullivan, the signatories of the contract on Dec. 17 were Associate Justices Rhonda Wood, Barbara Webb, Shawn Womack and Cody Hiland. All four remain on the court along with Nicholas Bronni, who was appointed to a vacant position Dec. 20 in light of Kemp’s retirement and Baker’s ascent. Bronni joined the majority in rebuking Baker twice since Jan. 1.
The Arkansas Advocate is a nonprofit, nonpartisan news organization dedicated to tough, fair daily reporting and investigative journalism that holds public officials accountable and focuses on the relationship between the lives of Arkansans and public policy.
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