From the Arkansas Advocate:
The Arkansas Supreme Court on Thursday reversed a lower court’s dismissal of the attorney general’s lawsuit against the state prison board for violating the Arkansas Freedom of Information Act.
The ruling, written by Associate Justice Rhonda Wood for the six-member majority, sends the case back to Pulaski County Circuit Judge Tim Fox for adjudication.
Attorney General Tim Griffin filed the lawsuit on Dec. 15, 2023, alleging the Arkansas Board of Corrections violated the FOIA when it entered executive session during a pair of public meetings and improperly hired an outside attorney. Griffin also said the board failed to properly respond to a public records request from his office.
Fox gave Griffin 30 days to work with the corrections board on an agreement with an outside attorney to represent it. Fox dismissed the case without prejudice in January 2024, ruling Griffin’s office failed to make an effort to initiate the statutory procedure that allows special counsel to represent state officials and entities.
Griffin moved to vacate the circuit court’s order, arguing his office could not certify special counsel until the board asked for legal representation, according to Thursday’s order from the state Supreme Court.
The attorney general typically represents state entities, but according to Thursday’s order, Griffin argued his duty to represent the state corrections board depended on the board certifying its need for legal representation.
“He is correct,” Wood wrote, noting that the attorney general has no duty to represent state agencies until a certified request for services is made.
“[Griffin’s appeal] argues that the circuit court dismissed the action for his failure to accomplish what he legally did not have sole authority to do,” the order states. “In response, the Board contends the circuit court had authority to dismiss the action under Arkansas Rule of Civil Procedure 41(b). Because we find the circuit court abused its discretion, we reverse and remand.”
Special Justice Bud Cummins joined the decision, while Associate Justice Nicholas Bronni did not participate. The governor appointed Cummins, a former U.S. attorney, to replace Bronni, who recused himself from the case in January. Bronni served as the state’s solicitor general in Griffin’s office before Gov. Sarah Huckabee Sanders appointed him to the high court in December.
Associate Justice Shawn Womack dissented. In his dissent, Womack writes that even though the circuit court was right to dismiss Griffin’s lawsuit, the dismissal should have been with prejudice and because of sovereign immunity, a legal doctrine that the state cannot be sued in its own courts. The case should be reversed and dismissed, said Womack, who regularly cites sovereign immunity in court decisions.
“Obviously, in most situations when the State brings a lawsuit, sovereign immunity is not implicated because the lawsuit does not make the State a defendant,” he wrote. “But in those rare instances when the State is both the plaintiff and the defendant—as it is here—sovereign immunity applies, and the underlying lawsuit is barred.”
In a social media post, Griffin praised the high court’s decision, which allows his suit to continue.
“I sued the Board of Corrections to defend our Freedom of Information Act. I am thankful for today’s Arkansas Supreme Court decision, which will allow that lawsuit to go forward,” Griffin wrote. “I take defending the FOIA seriously, and I will not tolerate those who violate it.”
The lawsuit is part of a dispute between the corrections board and the executive branch that started in late 2023 over who has ultimate authority over the state’s prison system.
The board’s refusal in November 2024 to approve a request to increase prison capacity by 500 beds prompted public criticism from Griffin and Sanders. The board responded by hiring an outside attorney the following month to represent it in employment matters.
The board voted 3-2 to hire Abtin Mehdizadegan, a labor and employment lawyer with the Little Rock firm of Hall Booth Smith. The vote came with almost no discussion after a 45-minute closed-door session.
Griffin quickly questioned the board’s authority to hire outside counsel without obtaining his office’s consent, citing state law that says the attorney general’s office represents state officials and entities.
