Supreme Proxy War (Hunter Field Editor’s Note)

The Arkansas Supreme Court building in Little Rock (Dustin Nevill)

There’s an old adage in journalism: Never make yourself a part of the story.

Well, if you’ve been reading any of the coverage of the dysfunction plaguing our state Supreme Court, Arkansas Business finds itself in the middle of it, but certainly not by choice.

What began as a rather routine public records request to check out a news tip and a few suspicions turned into the spark that set fire to any sense of normalcy at the Arkansas Supreme Court.

Our interest in the records was fairly limited to the Office of Professional Conduct and its leadership, and we truly had no intention, or even an inclination, that it would throw the Supreme Court into civil war.

All that said, I am glad that our request — and Senior Editor Mark Friedman’s pursuit of the truth as well as Publisher Mitch Bettis’ willingness to foot a legal bill to fight for the records — has brought the deep divisions with the court to light. I think Arkansans are better served when they know more about their government, and with Justice Karen Baker’s unprecedented dissent last week, this episode has drawn clear lines in the sand in the chief justice election between Baker and Justice Rhonda Wood. I suspect how people feel about this episode is probably a good Rorschach test for how they’ll vote in November.

Now to explain how we got here and try to answer the two questions everyone keeps asking us: What were we looking for? And was it in the records that were provided after the Supreme Court ordered their release?

It all began a few months back with Friedman’s request seeking the correspondence of former OPC Executive Director Lisa Ballard and several others, including most notably Supreme Court Justice Courtney Rae Hudson.

I thought this was an innocuous request, the first step in trying to learn what led to the unexplained, abrupt departure of Ballard and two members of her staff earlier this year.

The request dragged on a bit, as Freedom of Information Act requests tend to do, but it came as a surprise when I learned Hudson had filed for and been granted an injunction blocking the release of the records in Pulaski County Circuit Court.

Curious.

Arkansas Business filed a motion to intervene in the case, but Judge Patricia James never got a chance to rule.

Instead, the Arkansas Supreme Court shocked much of the state’s legal community with a per curiam opinion dismissing the case, mandating the release of Ballard’s emails to Hudson (but not Hudson’s emails to Ballard), and referring Hudson and her attorney, Justin Zachary, for ethics investigations.

The opinion says the unprecedented referrals were necessary due to “flagrant breaches of confidentiality and the public trust,” and the majority appears most frustrated that Hudson entered a pair of exhibits containing Chief Justice John Dan Kemp’s emails.

A few days after the per curiam, Justice Karen Baker issued a piercing dissent that referred the entire majority to the Judicial Discipline & Disability Commission for investigation.

And you thought the U.S. Supreme Court was divided.

Both opinions are worth a read and can be found at 2024 Ark. 134.

So what was in the emails, which were released a day after the per curiam was handed down? And did we find what we expected?

The short answer is there wasn’t a whole lot, and nothing worth reporting at this time.

As for what we expected, that’s a more complicated answer. As I mentioned, we first began digging after months passed without any explanation for Ballard and her staff’s exit. We’d heard some speculation, but the records we received haven’t completely backed it up.

As soon as we learn more or confirm those things, you’ll read it in Arkansas Business, but if we don’t, you won’t. We’re not in the business of reporting innuendo.

The truth is we chase rumors and news tips that turn out to be goose chases all the time. I’d venture to guess that of the hundreds of public records requests I’ve made in my career, there are more that were never publicly reported than were.

Now, I’m not suggesting that’s the case here. I’m still unsatisfied with the lack of an explanation for the staff exodus at the Office of Professional Conduct, which handles attorney discipline in the state, and we’re continuing to investigate.

But we also won’t report anything that can’t be backed up and supported.

As for the spat at the court, I’ve heard plenty of criticism about how this has been handled by all members of the Supreme Court, from the way the per curiam came down to Hudson’s legal strategy.

We have no dog in that fight. All we’re after is transparency — and a few emails.

Email Hunter Field, editor of Arkansas Business, at hfield@abpg.com