Two Supreme Court justices defend plea for more pay; object to colleague's criticism | Arkansas Blog

Two Supreme Court justices defend plea for more pay; object to colleague's criticism

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NO APOLOGIES: Justice Karen Baker, speaking at pay commission meeting, says she's glad she spoke up.
  • NO APOLOGIES: Justice Karen Baker, speaking at pay commission meeting, says she's glad she spoke up.

Arkansas Supreme Court justices
got an 11 per cent pay raise from the independent citizens pay commission yesterday, but the deliberations apparently left a sour taste among some judges.

Feb. 2, the commission voted to increase the pay of Supreme Court justices from $149,589 to $166,500. That decision was ratified yesterday. In an interim public comment period, Supreme Court Justices Karen Baker and Jo Hart appeared before the commission to say the recommended pay increase wasn't enough. They particularly objected to a $5,000 edge for the Supreme Court over the Court of Appeals since those judges get a mileage allowance for commuting to and from the districts from which they are elected. Supreme Court justices are elected statewide. Some live in Little Rock. Hart lives in Mountain View and Baker in Clinton.

The justices' appearance apparently prompted a memo by Judge Gary Arnold, president of the Judicial Council, the organization of sitting judges. Justices Baker and Hart have responded tartly.

I don't have a copy of Arnold's note, but Baker refers to it in a letter sent to Arnold and others who passed the letters by Baker and Hart along to me. She criticized him for not arguing the case for a bigger Supreme Court pay raise, except for Chief Justice Jim Hannah, and criticized the "tone" of his memo. She disputed his contention that the commission wasn't inclined to give higher raises. She also said she was less interested in money than the Board of the Judicial Council seemed to be.

However, I am less than pleased with the actions of the Judicial Council's Board. It is, as stated earlier, the mission of the organization to "to foster and preserve the integrity, dignity, and independence of the judiciary.” It is not the mission of the Judicial Council to seek salary increases, although that appears to have been the organization’s primary goal for the last several years. The hiring of lobbyists and attempts to wring more and more money from your membership in the form of dues and special assessments has been distressing. Threats to remove members who refused to pay those fees, although those threats thankfully did not come to fruition, have been even more distressing and did nothing to preserve the dignity of the judiciary. Finally, the fact that you not only failed to speak about the work of Arkansas’s appellate courts before the Commission, but instead attempted to restrain the speech of your members is shameful.

Baker remonstrated Arnold for not correcting Commissioner Chuck Banks on his comment that appellate judges had no day-to-day responsibilities. 

Of course, Commissioner Banks’ comments are untrue. The Arkansas Supreme Court is charged by the Arkansas Constitution with superintending authority over all of the courts of this state and the regulation of the practice of law and conduct of attorneys. Because of this constitutional duty, each supreme court justice has many administrative responsibilities, in addition to the task of deciding the most complex and difficult cases that arise in this State, and answering questions certified to us by the Federal Courts. 

JO HART: Suggests fellow judge tried to obstruct free speech.
  • JO HART: Suggests fellow judge tried to obstruct free speech.
Justice Hart was equally unhappy. She, too, faulted Arnold for not arguing for the appellate judges. To commission findings that Arkansas judges were well paid compared with other states, Hart cited points of disagreement and concluded:

 ... the appellate courts of this state meet more often, decide more cases, and must consider a broader array of cases, all for less compensation than that afforded to the members of some state appellate courts.

Arnold apparently said the justices "unexpected" appearances had caused some media comment. Hart took umbrage.

I would be remiss if I did not remind you that I can speak freely at a public forum to agents of the government, including the Commission, when I conclude that it is in my best interests and the best interests of the entire judiciary to express my opinion. I direct your attention to article 2, section 6 of the Arkansas Constitution, which says that the “free communication of thoughts and opinions, is one of the invaluable rights of man.” In as much as you have assumed a public persona and used public funds to disseminate your attempt to obstruct free speech, your actions should be judged by the standards of all public officials. If this be the case, your conduct could be found wanting.

Hart also questioned Arnold's assertion that some members of the Commission still felt the pay figures were too high.

I can provide some direct evidence to support Arnold on that. Commissioner Barbara Graves was one of three commissioners yesterday who indicated that they wanted to adjust some or all of the commissioner's earlier pay recommendations downward. They decided the wording of the amendment only allowed an up-or-down vote on the Feb. 2 recommendations. The vote was 5-2, with Graves a regretful one of the five.

Graves had come to the meeting prepared to specifically propose a lower pay rate for judges. She said the commission had broken from the matrix in accepting an argument from judges that they should receive extraordinary pay raises for having been passed over for merit pay and other raises given other state employees over the years. Following this reasoning meant breaking away from the comparisons the commission had drawn with other states.

She brought a judicial salary comparison spread sheet to Monday's meeting. It shows that the $166,500 pay for Supreme Court justices is $15,000 higher than the national average for Supreme Court justices. We are the 48th ranked state in terms of income. The judicial pay raises in every category far exceed national averages, according to Graves' figures.

Graves also listed specific pay rates for 12 regional or similarly sized states. The latest pay raised moved Arkansas to No. 4 on the list of 13. The comparison also showed this comparison with neighboring states for Supreme Court justices: Mississippi, $122,460; Oklahoma, $137,655; Missouri, $147,591; Louisiana, $150,772; Tennessee, $176,988. No figures were provided for Texas.

The letters by Baker and Hart follow in full:

KAREN BAKER'S LETTER:

Dear Judge Arnold:

In response to your memo of March 10, 2015, I must disagree that the proposed salary increases for Judges pending before the Independent Citizens Commission had elicited no significant press coverage prior to the public meeting on March 2, 2015. There was significant press coverage of both Judge Womack and Judge Pate’s presentation to the commission. In addition, Commissioner Banks’ comments at the January 30 meeting where were widely publicized. Prior to the publication of Commissioner Banks’ comments, I admit that I had not paid significant attention to the work of the Commission, and had assumed that the Judicial Council was endeavoring to put forth the best case possible in support a reasonable salary increase for all levels of the judiciary as your previous memo indicated. Therefore, I was greatly surprised to read that Commissioner Banks had stated during the meeting that appellate judges had no “day to day responsibilities.”

After reading Commissioner Banks’ comments, I listened to the audio recordings of the Commission’s hearings and to my surprise discovered that at no point in the Commission’s meetings had anyone spoken on behalf of appellate judges. Mr. Gingrich spoke to the Commission regarding Chief Justice Hannah, Judge Womack spoke on behalf of the circuit judges, Judge Pate spoke on behalf of the district judges and Judge Edwards answered questions concerning the Judicial Retirement System; however, no one spoke concerning the duties of supreme court justices or court of appeals judges. In view of Commissioner Banks comment that appellate judges had no “day to day responsibilities,” I found this a glaring oversight on the part of the Judicial Council's Board and the Special Committee. Of course, Commissioner Banks’ comments are untrue. The Arkansas Supreme Court is charged by the Arkansas Constitution with superintending authority over all of the courts of this state and the regulation of the practice of law and conduct of attorneys. Because of this constitutional duty, each supreme court justice has many administrative responsibilities, in addition to the task of deciding the most complex and difficult cases that arise in this State, and answering questions certified to us by the Federal Courts. Additionally, Commissioner Banks’ comments were, unfortunately, the only comments that the Commission heard regarding the work of appellate judges. I cannot help but believe that this lack of information is what resulted in the overall reduction in the Commission’s initial individual recommendations on the salaries for appellate judges. I attach those initial recommendations to this correspondence to demonstrate that, contrary to the assertions in your memo, it does not appear that there was “initially a general consensus” that “no adjustments to judicial salaries were needed.” In fact, all of the Commissioners in their initial proposed figures for discussion voted for an increase in salary for justices of the supreme court, and there were initially four votes for a higher salary for the Supreme Court and Court of Appeals than was ultimately proposed by the Commission.

Having reviewed the Commission’s meetings, including the public meeting, I am puzzled by the tone of your memos. First, I have never understood that my right and duty to speak concerning matters that impact on the administration of justice in this State is subject to restraint by the Judicial Council's Board. Second, I did discuss my concerns with a member of the special committee, Chief Justice Hannah, but he indicated that no further action was contemplated by the committee. As you personally attended the Commission’s public meeting, you are aware that I began my remarks by stating that I was speaking for myself and not as a representative for any group. My comments were directed at the differences between the comparison states and Arkansas in terms of the structure of the appellate courts, the fact that Arkansas-unlike any of the comparison states-elects its supreme court justices in statewide elections, and that in the comparison states supreme court justices receive mileage reimbursement. I also expressed my concern that the proposed salaries would discourage judges from the trial bench from seeking a position on the Arkansas Supreme Court or the Court of Appeals in the future. I strongly believe those are valid concerns. I also praised the Commission’s work and thoughtful consideration and thanked them for their proposed increase in salaries for circuit and district judges.

I do not understand the implication in your memo that any of my comments or the press coverage following the public meeting might somehow negatively impact the Commission’s final decision. After listening to all of the Commission’s meetings, I am convinced that this is a group of dedicated citizens thoughtfully engaged in a difficult task. Your implication that the the members of the Commission might reduce the proposed salaries as a result of my remarks is a grave insult to the Commission, as is your implication that you are privy to insider information concerning the thoughts of the Independent Commissioners. While there is no reason to believe that the comments I made to the Commission should be a matter for concern by the Judicial Council’s Board, I do believe that had no response been made following Commissioner Banks’ statement that appellate judges have no “day to day responsibilities,” that serious harm would have been done to the dignity of the judiciary. That potential harm is of greater concern to me than whether or not I receive a salary increase. I would hope that such harm is also of more concern to the Judicial Council's Board, considering that the organization was formed “to foster and preserve the integrity, dignity, and independence of the judiciary.” Having served as a circuit judge, a court of appeals judge, and now as a supreme court justice, I have a great appreciation for the work done by Arkansas judges at every level of our judicial system. It is a privilege to serve the people of Arkansas in the judicial branch and I will be pleased with whatever final salary is determined by the Commission.

However, I am less than pleased with the actions of the Judicial Council's Board. It is, as stated earlier, the mission of the organization to "to foster and preserve the integrity, dignity, and independence of the judiciary.” It is not the mission of the Judicial Council to seek salary increases, although that appears to have been the organization’s primary goal for the last several years. The hiring of lobbyists and attempts to wring more and more money from your membership in the form of dues and special assessments has been distressing. Threats to remove members who refused to pay those fees, although those threats thankfully did not come to fruition, have been even more distressing and did nothing to preserve the dignity of the judiciary. Finally, the fact that you not only failed to speak about the work of Arkansas’s appellate courts before the Commission, but instead attempted to restrain the speech of your members is shameful.

What I did not say to the Commission-although it is the truth-is that I would prefer that no salary increases be approved than for a compensation plan to be implemented that will ultimately harm the judiciary. I certainly would have personally preferred to receive no salary increase, than to have the work of the Arkansas appellate courts disparaged publicly. I assure you, my dedication to the administration justice in this state and my right to speak on issues related to it is much more important to me than a salary increase. Neither is subject to the control of the Judicial Council’s Board.

We will learn Commission’s decision regarding judicial salaries shortly. Whatever the Commission’s decision, I am glad that I took the opportunity to speak publicly about the work done by appellate courts in Arkansas.

Sincerely,
/s/
Karen R. Baker

JO HART'S LETTER

Dear Judge Arnold:

Though neither were received by me, I have read the memorandums of March 10, 2015, and February 9, 2015, that you prepared as President of the Arkansas Judicial Council concerning the role that you envisioned the Council would play in the determination of the matters before the Independent Citizens Commission.

Your conclusion that the Council can “speak with one voice” on behalf of all of the judges to “present a unified position to the Commission,” caused me great concern. In my view, the structure of the judiciary falls within the superintending control granted to the Supreme Court by section 4 of Amendment 80 of the Arkansas Constitution. Your assumption of a mantle of authority, whether intra vires or ultra vires, brought with it the responsibility to carry out the duties you undertook. Nevertheless, I felt compelled to exercise due diligence and examine the recordings of the Commission meetings and examine the materials that you brought to the Commission’s attention concerning an increase in the salaries of the judges in this state.

My review of these materials showed that the Council had made extraordinary efforts to argue for an increase in the salaries of the circuit judges but made no effort to argue for an increase in the salaries of the appellate judges except for the Chief Justice. I felt that this deficiency should be remedied. Based on my research, I concluded that a larger increase in the salaries of appellate judges was justified, and I presented that information to the Commission at its March 2, 2015 public hearing.

At the hearing, both Justice Baker and I provided information addressing the salaries for appellate judges. The salaries of the circuit-court judges and the district-court judges were not mentioned except for Justice
Baker’s expression of thanks for the proposed salary increases. My research showed that there are very important differences in the structures of the appellate judiciaries of other states and the manner in which those states
compensate their appellate judges. For instance, unlike our appellate courts, some appellate courts hear either civil or criminal appeals, but not both. Also, in some instances, appellate courts decide substantially fewer cases and others have more court members. In other states, the appellate courts do not, like in our state, meet twice a week but instead meet monthly. Further, unlike our state’s supreme court, all of the model states provide their appellate judges with mileage and per diem allowances. In sum, the appellate courts of this state meet more often, decide more cases, and must consider a broader array of cases, all for less compensation than that afforded to the members of some state appellate courts.

Without the efforts of both Justice Baker and myself, the Commission would not have had all of this information and would have been left with the impression that state appellate courts are identically situated and that
the renumeration of the members of this state’s appellate courts should be  determined solely by an examination of the salaries paid to the judges of other appellate courts. Rather than recognizing my duties, rights, and efforts to correct this error, you chose instead to “call me out” and issued a memorandum noting that the “unexpected presentations by two of our members generated some media responses.” Frankly, the article in the newspaper gave a fair report of the public hearing. I am concerned that you continue to disseminate information suggesting that you have insider information about the Commission. Such suggestions, without revelation of authority, are disrespectful to the Commission and certainly undermines your position.

I would be remiss if I did not remind you that I can speak freely at a public forum to agents of the government, including the Commission, when I conclude that it is in my best interests and the best interests of the entire
judiciary to express my opinion. I direct your attention to article 2, section 6 of the Arkansas Constitution, which says that the “free communication of thoughts and opinions, is one of the invaluable rights of man.” In as much as you have assumed a public persona and used public funds to disseminate your attempt to obstruct free speech, your actions should be judged by the standards of all public officials. If this be the case, your conduct could be found wanting.

Likewise, I am troubled by your comment that it is “believed some Commissioners continue to maintain that the current recommendations as to all of the judiciary are too high.” While you fail to provide the source of your dire observations, I cannot leave such a statement unchallenged. My review of the meetings leads me to believe the Commission has acted on information obtained through hearings and studies of other states comparable to our own. With that clear understanding, my comments  related solely to the appellate judiciary, particularly the six associate justices on the Arkansas Supreme Court who were not even mentioned in your presentations. I can assure you that my comments did not undercut any information that you may have provided to the Commission relating to the circuit judges.

I continue to research the information provided by you and others to the Commission. With patience and dedication, I think I can fully appreciate the events the preceded both your memorandums.

Sincerely,
/S/
Jo Hart



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