Constitutional showdown possibly coming over Arkansas Supreme Court controversy

The Arkansas Supreme Court remains divided over Chief Justice Karen Baker’s decision to remove the director of the Administrative Office of the Courts (AOC). A five-justice majority has challenged Baker’s unilateral decision to remove AOC Director Marty Sullivan and replace him.

It has also balked at Baker’s earlier decision to fire nine other employees and her attempt to make appointments to the Judicial Discipline and Disability Commission (JDDC).

Arkansas law gives the Supreme Court Chief Justice the power to nominate an AOC director, but the same statute declares that the director shall serve “at the pleasure” of the Supreme Court. It also states the director will appoint assistants within the office with the approval of the Supreme Court, presumably a majority.

ACA 16-10-102 (a)(2) reads: There shall be a Director of the Administrative Office of the Courts who shall be nominated by the Chief Justice of the Supreme Court, subject to the approval of the Supreme Court and the Arkansas Judicial Council, Inc. Subsequent to the appointment, the director shall hold office at the pleasure of the Supreme Court.

ACA 16-10-102 (f) reads: The director shall, with the approval of the Supreme Court, appoint such assistants as may be necessary. He or she shall be provided with such office facilities as may be required.

On Wednesday (Jan. 8), Chief Justice Baker issued an order that claimed the rejection by the rest of the court members were “null and void” and carried no weight, leaving questions as to whose orders have final authority.

“… I reject any suggestion that the Chief Justice’s authority is limited to the assignment of special judges and justices. Amendment 80 does not limit the Chief Justice’s authority in such a way, nor was it intended to. Rather, it is my constitutional duty to the people of Arkansas to administer the functions of the court and I will not yield any power that was bestowed upon any Chief Justice before me,” Baker wrote. “… A majority vote cannot be used in an attempt to usurp the sole authority of the Chief Justice on administrative matters.”

“Pursuant to Amendment 80, the ultra vires per curiam opinions issued on January 3 and January 6 are null and void, and the purported Administrative Order 24 is stricken,” Baker concluded in claiming to override the other court members’ directives.

EXPLORING LEGAL INTERPRETATION
Talk Business & Politics interviewed John DiPippa, dean emeritus of the University of Arkansas at Little Rock Bowen School of Law, to gain further insight into the controversy. DiPippa, who is also a distinguished professor of law and public policy, is a guest on this Sunday’s Capitol View TV program. A preview of the conversation is abbreviated below.

Q: What’s at the center of this divided court’s interpretation of who has decision-making authority?

DiPippa: “What it comes down to legally is: what does the word ‘administer’ mean? Because both the Constitution and a statute talk about the Chief Justice or the court administering certain functions. And Chief Justice Baker argues that ‘administer’ means a very broad set of responsibilities, including as you see hiring and firing employees of the judicial branch. The other justices argue, no, ‘administer’ means something less than that and is limited by some of the statutes and the constitutional rules. And so the fight really comes down to who has this broad power to control both employees, but other functions within the judicial branch.”

Q: Does this work its way up through the court system as a legal challenge? Can the Supreme Court rule on their case?

DiPippa: “Yes and no. And the problem goes back to some of what the court did last summer, and that’s part of the background to this whole case. There was a kerfuffle over the FOIA requests for some of the justices’ correspondence, and one of the justices took that to a circuit court who enjoined the court from turning over the letters until things had been resolved. Well, the other justices of the court said, ‘No, no, no.’ Amendment 80 gives us the general supervising power to administer the courts. There’s that word again. And so lower courts can’t tell us what to do with internal matters. So the court has backed itself into a corner because they’ve argued that no lower court can ever instruct us what to do. This is an internal matter. So yes, in the ordinary course of things, somebody would’ve gone to court, argued their dismissal was illegal and brought it up. The justices of the court have created this situation where no one apparently can claim to tell them what to do. Where the mistake happened, I think, is when the court tried to undo Chief Justice Baker’s firing of the director and those other employees. Again, ordinarily those employees would have filed a lawsuit saying, against Chief Justice Baker, ‘you can’t do this.’ That would have worked its way up. When the rest of the court stepped in, they seem to say, ‘we’re the only ones who can say what’s going on here. It doesn’t matter what the other courts say.'”

Q: Could the Arkansas legislature, which comes into session next week, clear this up?

DiPippa: “I’m going to give you an answer in three parts. The first part is yes, I think something is likely to happen. The second part is I’m not sure whether it would be effective because if you take the Supreme Court’s reading of Amendment 80, which says the Supreme Court has general superintendent power and you take another part of the Arkansas Constitution, which says the branches of the government – the executive, the legislative and judicial – shall be forever separate. The court can argue, you can’t tell us what to do because the amendment and the Arkansas Constitution say we are in charge of these rules. Now, a third part is, in an ideal world, what would happen? Well, in an ideal world, there would be some clarity about what words like ‘administer’ mean, what it means when there’s a ‘vacancy,’ defining the circumstances where vacancies occur, talking about maybe the length of contracts for employees in the judicial branch, things like that. In an ideal world, that’s what should happen. In the current situation, I think we’re only going to see more of a mess going forward.”

A MEETING IS PLANNED
While DiPippa’s interview suggests there are several scenarios that could play out, it’s unclear which ones, if any, would lead to an eventual resolution.

There is a slight chance that cooler heads could prevail and some sort of agreement is reached by the seven justices on the Arkansas Supreme Court.

Chief Justice Baker noted in her Wednesday order that she has called the first meeting of the full court for Jan. 23 to take up “various administrative matters.”

Could this be the meeting where a resolution is reached or will it lead to a greater division between members of the court without finality in resolving the issues at hand?