The Arkansas Supreme Court building in Little Rock. (John Sykes/Arkansas Advocate)
A Pulaski County circuit judge agreed Wednesday to continue blocking the release of emails between an Arkansas Supreme Court justice and a former court employee.
Judge Patricia James issued the preliminary injunction Sept. 6 in response to a complaint from Associate Justice Courtney Rae Hudson, who argued she is the custodian of her emails that Arkansas Business senior editor Mark Friedman sought to obtain in August via the state’s Freedom of Information Act.
Friedman had asked the Administrative Office of the Courts and the Office of Professional Conduct for all communications after January 2023 between former OPC director Lisa Ballard and several individuals, including Hudson.
OPC’s acting director, Charlene Fleetwood, intended to respond to Friedman that the requested records are exempt from the FOIA, Hudson’s complaint said, but five other Supreme Court justices overruled Fleetwood and said any responsive records should be released.
The FOIA states that the custodian of a public record has “administrative control” over it, and such control over Hudson’s correspondence belongs to her alone, not the AOC or the OPC, her complaint states.
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Her attorney Justin Zachary reiterated this argument to James at a Wednesday hearing, saying lifting the injunction would do “irreparable harm” to Hudson.
James said she would grant Zachary’s request to extend the injunction since attorneys for the four defendants did not object to the request.
Attorney Peter Shults represents the AOC and its executive director Marty Sullivan, and attorney Paul Waddell represents Fleetwood and the OPC.
Fleetwood took over OPC leadership after Ballard and two other employees left the office in short succession earlier this year. Ballard’s personnel file, which was obtained by the Advocate in May through a FOIA request, did not include a letter of resignation or list a reason for termination.
Waddell and Shults both said they agreed with Hudson that their clients are not the custodians of her emails. They also argued that the sovereign immunity doctrine, which asserts the state cannot be sued in its own courts, bars their clients from litigation.
OPC does not have administrative control over records it’s “simply storing,” Waddell argued. Additionally, OPC is funded by attorney licensing fees “and other bar-related functions” instead of state funds, which could shield its records from public access entirely, he said.
60CV-24-7576 AOC Sullivan motion to dismiss Shults filed a motion Tuesday to dismiss AOC and Sullivan as defendants.
“The relief Justice Hudson seeks—which is to stop the Arkansas Supreme Court from releasing certain records—cannot be obtained in an action against AOC,” Shults wrote. “In other words, since it is undisputed that AOC does not have control over the relevant records, whether an injunction is issued against AOC does nothing to resolve this dispute.”
James said she would not take up the motion to dismiss Wednesday but would instead allow time for the defendants to file responses to Hudson’s complaint as well as for all parties to respond to a Sept. 10 motion to intervene from Friedman and Arkansas Business.
“Arkansas Business and Mr. Friedman have an interest in the application of the Arkansas Freedom of Information Act to their FOIA request, which is not completely protected by any current party to this action,” states the motion filed by attorney John Tull. “Justice Hudson placed the defendants in an awkward position because she is a sitting Justice on the Arkansas Supreme Court, and it is unlikely defendants will protect the interests of Arkansas Business and Mr. Friedman.”
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