From the Arkansas Advocate:
The Arkansas Supreme Court on Thursday cleared the way for an outside attorney hired by the state prison oversight board to continue representing it in its lawsuit over who controls the Department of Corrections’ highest-ranking officials.
The high court affirmed its previous decision to dismiss a motion by Attorney General Tim Griffin’s office to disqualify the attorney hired by the Arkansas Board of Corrections in 2023 and rejected his petition to reconsider the June decision.
Griffin’s motion to disqualify the board’s outside counsel was part of a broader appeal to dismiss the corrections board’s lawsuit. In an opinion authored by Chief Justice Karen Baker in June, a court majority rejected the attorney general’s request to overturn a lower court’s preliminary injunction and dismiss the lawsuit and ordered the trial court to proceed with the case. In that opinion, the justices said the motion to disqualify Abtin Mehdizadegan and the Hall Booth Smith law firm was outside the scope of their review.
A denial of a motion to disqualify one’s legal counsel, Baker wrote at the time, was “not an appealable final order.”
Griffin’s office subsequently asked the court to reconsider, arguing that the decision “risks undermining the Court’s inherent power to regulate the practice of law before it.” Griffin said that rather than asking the court to review a lower court’s decision to deny the disqualification motion, he had asked the justices to disqualify the attorney from representing the board before the Supreme Court itself.
“A disqualification motion before an appellate court addresses a distinct issue from a disqualification motion before the trial court,” Griffin’s petition for a rehearing said. “The Court therefore has inherent authority to rule on Appellants’ motion to disqualify the Board’s illegally retained appellate counsel and determine whether they were properly before this Court.”
The Supreme Court did not give a reason in Thursday’s one-page per curiam order for not rehearing the matter, nor were there any noted dissents. The court’s affirmation of the circuit court’s decision noted Justice Shawn Womack dissented, and Justice Barbara Webb concurred and dissented in part. Justices Cody Hiland and Nicholas Bronni did not participate.
The move from the Supreme Court is the latest entry in the almost two-year legal battle between the Board of Corrections and Griffin and Gov. Sarah Huckabee Sanders over who ultimately controls the Department of Corrections’ (DOC) highest-ranking officials.
The fight began with growing tensions between the board and former Corrections Secretary Joe Profiri in November 2023 over Sanders’ demand that more beds be opened in the state’s prison system. The state continues to face a shortage of prison beds and staffing for those beds, which the board cited in its reasoning not to approve more beds requested by Profiri and Sanders.
Weeks later, those tensions exploded into a court fight between the board and Sanders over who ultimately has control over top-ranking corrections officials — and the extent of the board’s constitutional authority — when the board suspended Profiri after he moved to open additional beds in defiance of the board.
Profiri said after his initial suspension, however, that he would still go to work — prompting the lawsuit by the board. The board subsequently fired him, after which Sanders hired Profiri as a special adviser on corrections matters.
The dispute stems from Acts 185 and 659 of 2023, which provided that the corrections department secretary serve at the pleasure of the governor instead of the board, while the heads of its two divisions report to the secretary — effectively removing them from board oversight, the board alleged. The board filed suit over the pair of state laws on Dec. 14, 2023, claiming they infringed on the authority granted to it under Amendment 33 of the state constitution and asking that the laws be struck down as unconstitutional.
Pulaski County Circuit Court Judge Patricia James initially sided with the board and issued a preliminary injunction in January 2024, keeping authority over the corrections officials with the board while the lawsuit played out, which cleared the way for Profiri’s firing.
Griffin appealed, asking the Supreme Court to vacate the injunction and dismiss the case as moot in light of Profiri’s firing, as well as find that the board’s outside counsel was hired illegally.
Griffin argued that the attorney was hired illegally by the board, but James ruled that the board was considered a constitutional officer under the state constitution, therefore allowing them to hire outside counsel.
With the affirmation of the June ruling, the case awaits a final ruling from the circuit court.
