by Max Brantley
Leveritt had objected to this rule earlier in seeking discipline of Attorney General Dustin McDaniel, then defending the convictions of the West Memphis Three, for not taking affirmative action in response to evidence of juror misconduct in one of the murder trials. The three have now been released, so the underlying legal issue is moot. Leveritt was warned against publicizing her complaint, but the committee has not taken legal action against her despite her public comments. She said she was informed by Stark Ligon, director of the committee, that the complaint about McDaniel had been dismissed because the committee didn't believe it had authority to take action against lawyers exercising discretion in publicly elected positions. Leveritt said the committee has cited no statute or rule supporting that point of view.
Leveritt said she also had complained about misconduct by Tom Cooper in the Little River county prosecution of Tim Howard, now on Death Row. Cooper is now a judge. Leveritt wrote extensviely for us about problems of handling DNA in the case and the prosecution's failure to disclose that to the defense. She said Ligon had told her that this complaint remained open because his conduct remained in issue in Tim Howard's appeal. It's unclear why official actions would be possibly subject to review in this case, but not in the West Memphis Three case.
Other regulatory agencies in Arkansas have similar non-disclosure rules, but none has ever been enforced to my knowledge. The Judicial Discipline and Disability Commission tells complainants they are not to talk about their complaints. The state Ethics Commission also advises complainants that complaints are to be kept confidential. "I consider it bullying," Leveritt said. It certainly prevents useful discussion of actions of public officials, even though they might be innocent of rule violations. The rule was invoked, for example, in early stages of complaints about former Circuit Judge Willard Proctor, but a number of people spoke on the record nonetheless. That contributed to the case on which he was ultimately removed from the bench.
A Pennsylvania gag rule — imposed by the state Ethics Commission — was held an unconstitutional infringement of free speech by a U.S. Circuit Court of Appeals.
Leveritt's news release:
Today, Little Rock attorney Jeff Rosenzweig filed a civil rights lawsuit on my behalf in U.S. District Court. The defendants, sued only in their official capacities, are the Arkansas Supreme Court Committee on Professional Conduct and Stark Ligon, its executive director. The complaint asks the federal court to declare unconstitutional portions of the Arkansas Supreme Court’s Procedures Regulating the Professional Conduct of Attorneys at Law (commonly called the “Procedures”) and to bar any attempt to hold me in contempt under those procedures or punish me with a fine or jail. I am not an attorney.
The lawsuit arises from two letters I wrote this year to the committee, in which I questioned the actions of three Arkansas attorneys, two of whom are elected officials and one a senior appointed official. In both instances, I received a response from Ligon, warning me in a paragraph that was capitalized and in bold lettering that the procedures prohibited me from releasing “ANY INFORMATION OR DOCUMENTS” about my complaint “TO ANYONE, INCLUDING THE NEWS MEDIA.” His letters added: “ANYONE VIOLATING THIS CONFIDENTIALITY MAY BE FOUND TO BE IN CONTEMPT OF THE COURT AND PUNISHED BY FINE OR JAIL.” These statements are basically an accurate paraphrase of the procedures.
In the belief that these procedures are unconstitutional restraints on free speech, I published on my website key parts of the correspondence between me and the committee. In May, the Arkansas Democrat-Gazette reported that when Ligon was asked about those posts, he reiterated that I could be held in contempt of court—a crime—for publicizing the correspondence.
So far, no attempt has been made to enforce these procedures, although I assume that some process could be started at any time. I abhor this rule restricting a citizen’s free speech about the conduct of public officials. I am appalled that an attack on a principle so basic as to be enshrined in the First Amendment should issue from this state’s supreme court. I am particularly concerned that the court’s procedures inhibit informed debate about persons who are or may become candidates for office.