Arkansas Corrections Board lawsuit against governor stays alive with Supreme Court ruling

Yahoo

05-06-2025

Arkansas Supreme Court (Courtesy Photo)
A lawsuit over who has the ultimate authority over the state prison system gained renewed life Thursday with the dismissal of a state appeal of a lower court preliminary injunction.
The Arkansas Board of Corrections filed a lawsuit in Pulaski County Circuit Court on Dec. 14, 2023 against Gov. Sarah Huckabee Sanders, the secretary of state and Arkansas Department of Corrections, challenging the constitutionality of Act 185 and 659 of 2023.
Act 185 requires the secretary of corrections to serve at the pleasure of the governor rather than the board, while Act 659 alters the reporting structure for the directors of the Division of Correction and Division of Community Correction, requiring them to serve at the pleasure of the secretary rather than the board.
The board argued the laws violate Amendment 33 of the Arkansas Constitution, which protects the power of constitutional boards like the board of corrections from 'usurpation by the Governor or the General Assembly, or both,' according to Thursday's ruling.
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A circuit court judge granted a preliminary injunction in January 2024, which Attorney General Tim Griffin appealed.
The Supreme Court's ruling Thursday dismissed the state's motion to send the case back to the circuit court, order the preliminary injunction vacated and the case dismissed as moot.
The high court also dismissed a motion to disqualify the corrections board's attorney from further participation in proceedings before the court.
In its motion to remand, the state argues the controversy ended when the board fired former Corrections Secretary Joe Profiri. The firing was part of a dispute between the board and the executive branch that started in late 2023 over who controls the state's prison system.
The board's refusal in November 2023 to approve a request to increase prison capacity by 500 beds prompted harsh public criticism from Griffin and Sanders. The board responded by hiring an outside attorney the following month to represent it in employment matters.
Because Profiri was fired prior to the entry of the preliminary injunction, the lower court's finding of irreparable harm was erroneous, the state argued. The board said it wasn't seeking court confirmation of its right to fire Profiri, but relief from the legislation regarding the board's authority under Amendment 33.
Writing for the majority, Chief Justice Karen Baker said she agreed with the board's assertion that Profiri's termination doesn't resolve the ultimate question of whether the board controls the secretary or division directors, and therefore the dispute is not specific to the individual holding the secretary's office.
'The Board's complaint concerns the Challenged Legislation and the resulting changes to the Board's supervisory authority. This dispute exists notwithstanding the individual who holds the Secretary position and is not personal to Secretary Profiri,' Baker wrote. 'Further, because this case presents an existing legal controversy, it is not moot. Therefore, we deny appellants' motion to remand.'
The state also filed a motion to disqualify the legal counsel obtained by the corrections board, arguing the firm was obtained illegally. The board didn't follow state law for securing outside counsel, and the board did not have the 'authority to hire special counsel because the Board is not a constitutional officer,' the attorney general's motion argued.
The circuit court denied this motion, explaining that 'the Board is a constitutionally created board, making its members constitutional officers' who therefore had the legal authority to hire special counsel.
The attorney general typically represents state agencies, but state law gives constitutional officers the ability to hire outside counsel when they disagree with the attorney general over a constitutional provision.
In dismissing this motion, Baker notes the board correctly points out that 'an order denying a motion to disqualify adversary's counsel in a civil proceeding is not an appealable final order.'
'As a general rule, an appeal from an interlocutory decision brings up for review only the decision from which the appeal was taken, here, the granting of an injunction,' Baker wrote. The motion to disqualify the attorney is outside the scope of the Supreme Court's review of the preliminary injunction, she said.
The high court majority affirmed the lower court's issuance of an injunction because its 'findings that there would be irreparable harm were not clearly erroneous.'
The crux of the lawsuit, Baker wrote, is whether the board retains ultimate authority over the corrections secretary and directors or whether the challenged legislation constitutionally transfers that power to the governor and corrections secretary.
'The evidence presented to the circuit court demonstrates that, in the absence of the injunction, the dispute will be ongoing until the constitutionality of the Challenged Legislation is resolved,' Baker said. 'This, coupled with appellants' failure to even argue their likelihood of success on the merits, leaves us with little choice under our deferential standard of review.
'We hold that the circuit court did not abuse its discretion in determining that the Board demonstrated that irreparable harm would result in the absence of the requested preliminary injunction, and we affirm,' she added.
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Special Justices Troy Braswell and Bud Cummins joined in the decision. Associate Justice Barbara Webb concurred in part and dissented in part. Associate Justice Shawn Womack dissented. Associate Justices Cody Hiland and Nicholas Bronni, both of whom were appointed by the governor, did not participate.
Webb wrote that she agreed with the majority that the matter is not moot because Profiri's termination doesn't resolve the question of whether Acts 185 and 659 of 2023 are unconstitutional. She also agreed that it's not appropriate to disqualify the board's counsel at this time.
However, she argues the board 'failed to demonstrate irreparable harm' and the circuit court therefore erred in enjoining the challenged acts.
'The crux of the Board's claim for irreparable harm was Secretary Profiri's alleged acts of insubordination, which were directly attributable to Act 185 requiring the Secretary to serve at the pleasure of the Governor rather than the Board,' Webb wrote. 'This harm is not irreparable…By definition, if a secretary may be terminated and his actions undone, then it cannot be said that any harm resulting therefrom is 'irreparable.''
In his dissenting opinion, Womack argues the court must vacate the preliminary injunction and dismiss the lawsuit because sovereign immunity bars the board's lawsuit against the governor, corrections secretary and Department of Corrections.
Sovereign immunity, which Womack cites often in court opinions, is the legal doctrine that the state cannot be sued in its own courts.
'Even if that was not so, the Board would still lose because it failed to show irreparable harm — a necessary element to establish entitlement to a preliminary injunction,' Womack wrote 'Therefore, I also join the other dissenting opinion in this case.'
Regarding the issue of the disqualification of the board's 'potentially illegally retained counsel, I again remind citizens of this state of their ability to protect themselves 'against the enforcement of any illegal exactions whatever,'' he said.
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