Judge criticizes Arkansas AG, orders appointment of outside counsel in dispute with prison board
From the Arkansas Advocate:
A Pulaski County circuit judge on Tuesday found Arkansas Attorney General Tim Griffin in “clear violation” of his legal duty to the state prison board.
Judge Tim Fox gave Griffin 30 days to work with the Board of Corrections on an agreement with an outside attorney to represent it, though Griffin promptly promised an appeal of the order.
Fox also said the board could take Griffin’s “numerous potentially serious ethical violations” of the state’s rules for attorneys to the Arkansas Judiciary’s Committee on Professional Conduct.
“I am certain that my staff and I have complied completely with all ethical obligations,” Griffin responded in a statement. “I am preparing to seek review of the court’s order by the Arkansas Supreme Court.”
The litigation before Fox was brought by Griffin against the board; it’s part of the ongoing dispute between the prison board and Gov. Sarah Huckabee Sanders, Corrections Secretary Joe Profiri and Griffin.
Griffin’s lawsuit accused the board of violating the Arkansas Freedom of Information Act and improperly hiring an outside attorney, Abtin Mehdizadegan.
But Fox said Griffin had put the board in an untenable position, and the suit would be dismissed if an agreement with an outside attorney isn’t reached in 30 days.
“The case, at this juncture, from a procedural standpoint, is that the Attorney General has sued his own clients, in violation of his duties and responsibilities legislatively mandated to him by the Arkansas General Assembly,” Fox’s order reads.
“Not only has the Attorney General acted in contravention of his statutory duties to represent the state defendants, by using his discretion to apparently not invoke the special counsel procedure, he is apparently attempting to deliberately deprive his state clients of any legal representation of any nature or kind.”
In Arkansas, the attorney general represents most state government entities and officials, except in rare instances when there may be a conflict or disagreement. The attorney general, in those cases, may appoint a special counsel to represent a state actor with the approval of the governor.
Fox also pointed to another part of the same statute that allows the governor to appoint a special counsel to represent a state entity if the AG doesn’t provide the service when requested in writing. The judge said he didn’t have enough information to decide whether those requirements had been met.
Mehdizadegan and the board have also pointed to another law that gives constitutional officers the ability to hire an outside attorney when they disagree with the attorney general over a constitutional provision. There is disagreement about whether members of the board are constitutional officers. Fox didn’t rule on this point.
“The court’s order states that the Board of Corrections is clearly ‘entitled to legal counsel.’ There is no dispute about that here,” Griffin said late Tuesday. “The dispute is whether the board has followed the legal requirements to obtain outside counsel. The board has ignored that process, and our lawsuit seeks to remedy that.”
The case before Fox is proceeding at the same time as a case brought by the Board of Corrections against Sanders and Profiri.
That case was brought after the recent disagreement over whether five state prisons can take on more than 600 additional inmates in existing spaces to relieve overcrowding in county jails housing state prisoners.
The board is concerned that some of the facilities do not have adequate staff and infrastructure to take on additional inmates.
But at the heart of the dispute is a fundamental question about who has authority over Arkansas’ correctional facilities and whether a pair of state laws moving the state’s top prison officials from under the board to under the governor are constitutional.
The judge in that case sided with the board last week, enjoining Profiri from proceeding with the prison expansion plan for now.
That ruling came a day after the board voted to suspend Profiri with pay.