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Keeping Tabs on the Justices

8 min read

In 2011 and 2012, an Arkansas Supreme Court justice disclosed $62,000 in travel given to her by a Fayetteville attorney.

Since then, justices have reported only minor travel expenses — including, for example, one justice’s combined $1,676 in expenses to attend conferences in California and Arkansas in 2017 and 2018.

But recent revelations regarding gifts to U.S. Supreme Court Justice Clarence Thomas have renewed questions about the oversight of high court judges and their finances.

“Judges are to avoid even the slightest appearance of impropriety,” said Howard Brill, a former chief justice of the Arkansas Supreme Court who also wrote a book on Arkansas judicial ethics. “Judges are to be candid with the public, and that requires they disclose their connections and their gifts and their investments.”

In Arkansas, as in a number of other states, justices are subject to scrutiny by understaffed and underfunded agencies, including the Arkansas Ethics Commission and the Arkansas Judicial Discipline & Disability Commission.

And although Arkansas Supreme Court justices are required to submit a statement of financial interest each year, no investigation of their accuracy takes place unless a complaint is made.

The statements of financial interest, available for public view on the website of the Arkansas secretary of state, require the disclosure of income sources, business or other holdings, awards, nongovernmental sources of payment and gifts.

An Arkansas Business review of dozens of financial interest forms submitted by each state Supreme Court justice found that most of the sections for the disclosure of gifts were either blank or completed as “not applicable.”

There were a couple of exceptions, both covered at the time by the press.

In her 2011 financial disclosure form, Supreme Court Justice Courtney Hudson reported a gift of a $12,000 Caribbean cruise in August of that year.

Courtney Hudson

In 2012, she reported a gift of a $50,000 summer trip to Italy.

Both vacations were paid for by Fayetteville attorney W.H. Taylor. In 2013, Arkansas Business reported that Hudson said she would recuse herself from any cases involving Taylor or involving any of the attorney’s clients.

The only other gift disclosures Arkansas Business could find were minor travel expenses reported by Justice Karen Baker, including a $1,121 trip in May 2017 to a convention in California and $219 for an October 2018 judicial conference in northwest Arkansas.

Baker announced last month that she is running for chief justice of the court in 2024.

A snapshot of Justice Courtney Hudson’s 2012 statement of financial interest, in which she disclosed a $50,000 Italian vacation given to her by Fayetteville attorney W.H. Taylor. Justices must disclose certain financial details each year. (Arkansas Supreme Court)

The Arkansas Ethics Commission defines gifts as “any payment, entertainment, advance, services or anything of value unless consideration of equal or greater value has been given therefor.” The fair market value of gifts of more than $100 should be disclosed. These rules are applicable to state Supreme Court justices as well as other elected officials or individuals working as public servants.

The commission outlines a number of exceptions, including wedding presents and engagement gifts, tickets to charitable events or food, lodging or travel “which bears a relationship to the public servant’s office and when appearing in an official capacity.”

The guidelines also allow for the acceptance of a gift “conferred on account of a bona fide personal, professional, or business relationship” independent of an individual’s official status.

“In determining whether a gift was conferred on account of an independent relationship, the Commission will consider such factors as when the relationship began, the prior history of gift giving between the individuals, whether the gift was given in connection with a holiday or other special occasion, and whether the same gift was given to other public servants,” an Arkansas Ethics Commission document said.

“People get frustrated because there are not black-and-white answers,” Graham Sloan, director of the state Ethics Commission, told Arkansas Business.

“I don’t know if the real world lends itself to absolutes. There are other factors to be considered, and that’s what we do.”

No Discussion

Brill, a University of Arkansas law professor, was appointed by then-Gov. Asa Hutchinson to fill a vacancy as chief justice for about 16 months between 2015 and 2016.

Howard Brill

He remembers little, if any, discussion among the other six members about judicial ethics, the justices’ financial disclosures or any gifts they might have received during their campaigns or while in office.

“I have never been involved in any conversations involving that,” he said. “I just have not.”

While it may not be commonplace for the state’s seven Supreme Court justices to discuss such matters among themselves, there has been increasing scrutiny of the financial disclosures of U.S. Supreme Court justices after a ProPublica investigation this spring revealed that Thomas did not disclose that he’d been treated to luxury vacations for decades by Harlan Crow, a real estate billionaire and influential Republican donor.

That investigation later revealed that Crow paid the tuition to an expensive private boarding school for Thomas’ grandnephew. The justice also failed to disclose that the Texas real estate tycoon had bought several properties from him in 2014, ProPublica reported. (Last week, Thomas requested a 90-day extension to submit annual filings that include financial disclosures.)

In a May interview with the Atlantic magazine, Crow, who showered Thomas with lavish trips on yachts and private jets, said he and the justice had been “dear friends for almost 30 years” and Thomas never spoke to him about Supreme Court cases.

Arkansas Chief Supreme Court Justice John Dan Kemp declined an Arkansas Business interview request to discuss judicial ethics and financial scrutiny of state justices. In his 2022 financial interest filings, Kemp lists nearly eight pages of investments and holdings. There are no gift disclosures.

“You can only trust that judges and justices, when they sign this statement under oath, that they have been truthful,” Brill said. “It would be disappointing and alarming if judges were not making those required disclosures. The public needs that information. The public is entitled to that information.”

‘A Pretty Lean Operation’

In describing the work of the Arkansas Ethics Commission, Sloan, the director, said, “We are a state agency and in the miscellaneous state agency fund. We seem to keep getting additional jurisdiction without additional resources.”

He added: “It is a pretty lean operation.”

The agency, which has 11 employees, operates on an annual budget of about $1 million. It’s tasked with monitoring campaign finance disclosures, issuing disciplinary actions for violations of finance rules and preparing educational materials for candidates, elected and appointed officials, lobbyists, political action committees, and ballot and legislative question committees.

The state Ethics Commission also monitors whether the justices, and other public officials, have filed their annual statements of financial interest but otherwise would not scrutinize the documents unless the commission received a complaint, Sloan said.

“As far as auditing the contents [of the financial disclosures], we don’t have the manpower to do that,” Sloan told Arkansas Business.

“We check to make sure that the required filings are, in fact, being filed. As far as looking at the contents of the filings, that would largely be complaint-driven,” Sloan said. “We don’t just put names in a hat and tell someone they won a free audit.”

Similarly, the Arkansas Judicial Discipline & Disability Commission, which specifically monitors the conduct of judges and justices, also is reactive in nature, launching investigations after a complaint is filed.

That agency, created in 1988, also operates on an annual budget of about $700,000 for six employees.

It currently has two vacant positions. It also consists of an 18-member commission consisting of attorneys, citizens and six judges who are appointed by the Arkansas Supreme Court.

Emily Abbott, JDDC’s executive director, declined to comment for this article. Craighead County District Judge Tommy Fowler, chair of the commission, also declined to comment.

While the JDDC is constitutionally independent, the Supreme Court “has the power to suspend, remove or involuntarily retire or censure judges based on the Commission’s recommendation,” according to the agency’s website.

The Arkansas Supreme Court also writes the state’s Judicial Code of Conduct, which was last amended in 2016. Gift rules in the 2016 code state that “a judge should not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law or would appear to a reasonable person to undermine the judge’s independence, integrity or impartiality.

“A lot of citizens don’t realize this,” David Sachar, former JDDC executive director, said. “They think the JDDC in Arkansas works for the Supreme Court and is intimidated by the Supreme Court and is pushed around.

David Sachar

“The Supreme Court never did that to us, even as opponents, they did not,” Sachar, now the director of the Center for Judicial Ethics at the National Center for State Courts, said. “I have no stories whatsoever of them trying to improperly influence a JDDC decision.”

Still, the JDDC would not investigate a justice’s financial interest statements unless it was initiated by a complaint. The agency’s capacity is largely limited by its staffing and budget. The JDDC receives about 300 complaints a year.

“We use the documents that are available to us just like anybody else would,” Sachar said. “Over the years, we have had complaints about donations and gifts, particularly to Supreme Court justices. They would then go through the usual complaint process to determine whether there were any violations of code.”

Records dating back to 2004 in an online JDDC database show a handful of rulings related to the state Supreme Court, including a 2009 reprimand against a justice who assaulted his sister.

All JDDC investigations are confidential. Findings would not be released to the public unless a disciplinary action has been taken against a judge, the JDDC files a statement of allegations of ethical misconduct or a judge is dismissed.

Before leaving his position as executive director of the agency this spring, Sachar sent a letter to the Arkansas attorney general’s office requesting more resources for the JDDC. The attorney general’s office declined an Arkansas Business public records request for that document.

“If you want a police force, you have to fund it,” Sachar said. “If you want an auditor, you have to fund it. Judicial conduct commissions are valuable.

“What keeps me up at night are the things we were not able to do or the things that we could not prove.”

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