Former chief justice of Arkansas Supreme Court dishes on court dysfunction | Arkansas Blog

Former chief justice of Arkansas Supreme Court dishes on court dysfunction

by

5 comments
HOWARD BRILL
  • HOWARD BRILL
Once again, those invested in the ongoing internal dysfunction at the Arkansas Supreme Court have some juicy reading. A pair of oral history interviews with recently retired justices Howard Brill and Cliff Hoofman have been posted to a growing collection of oral histories with retired Arkansas Supreme Court justices.

Brill, who was appointed chief justice of the Arkansas Supreme Court after Chief Justice Jim Hannah stepped down for health reasons, talks candidly about tension at the court in his lengthy interview with Arkansas Times columnist Ernie Dumas for the Arkansas Supreme Court Historical Society.

Without naming names, Brill confirms what the Arkansas Blog has long reported: that four justices — Rhonda Wood, Jo Hart, Karen Baker and Courtney Goodson, according to our sources — seized control of the court from the chief justice. Brill held his position from 2015 until the end of 2016.

There are members who have the votes, four people, saying we want to be in charge of every single thing. I thought that undermined the chief justice. ...

Looking back, I probably should have worked harder to maintain the traditional power of the chief. But at the time I wanted to avoid battles during my remaining months, and I thought that an elected chief — rather than a lame-duck appointed chief — was in a better position to take that stand. And in my lack of experience in this position I assumed that everyone was well intentioned, but I later concluded that that assumption was incorrect.
Brill cites as evidence for the need of the chief to have authority the reluctance of members of the court to sanction former Cross County Judge Joseph Boeckmann, who is now awaiting trial on federal fraud and witness tampering charges. 
Let me give you, perhaps the best example, of why the chief justice needs authority. In November 2015 I received advance notice, by a few hours I believe, that the Judicial Discipline Commission was filing formal charges against a district judge in Wynne [Joseph Boeckmann]. In the morning the newspaper reported that he was charged with swapping sexual favors from young men for favorable treatment in his court. When, such charges are made, the rules of the commission do not allow the judge to be suspended or removed from the bench or denied his paycheck. But I had no doubt that something had to be done. But when I tried to get the whole court to go along, there were problems, such as, well you know these are only allegations, these are not criminal
charges, how does this compare to cases in past years? As I looked at it, he was not being accused of cheating on his taxes or his wife, or what he did on a weekend; these charges were directly related to handling his cases and the individuals who came into his court;
there were numerous charges. So I stopped asking the court to take action. That afternoon I issued an order in my own name, as the chief justice, taking all his cases away from him and assigning them to other judges. I did not take away his paycheck or his title, but he was not able to preside. The next day, when my order was in the press, I find that I am criticized by some justices; they wanted to make it clear that I took this action, not the court. But, Ernie, I will tell you, looking back, of the all the decisions I made, I have no doubt that this order was the proper action for me, acting as chief justice, to take.

Because of such experiences, and frustrations, I said to the trial judges at the Fall Judicial Council that the authority of the chief justice is my primary concern. I think if we went back and talked to chief justices from five years ago, ten years ago, fifteen years ago, they had that superintending authority. It was never really in doubt. They exercised that authority. They made these decisions. They may have overstepped some of their power. They may not have communicated with people, but it was recognized that they had the authority to do it. 

Brill also mentions conflicts over the administration of the high court's website. He says pictures of Arkansas justices, including one who was running for office, with U.S. Supreme Court Antonin Scalia appeared on the court's site after Scalia died, at the direction of one justice. He says that some justices complained that Dumas' picture was on the oral history section of the website after his interview with the late Justice Donald Corbin posted. Corbin candidly talked about the court's shameful handling of the same-sex marriage case. Brill said micromanaging of the website was "extremely inefficient."

There's much more of interest, including a fun section where Brill talks about pushback he got for inserting Johnny Cash and Bob Dylan lyrics into decisions he authored.

Hoofman's interview
 covers his long political and judicial career with details that politicos and folks in the legal world will surely gobble up. But I'll note especially his explanation for why he recused on the same-sex marriage case. He said didn't recuse merely because Sen. Jason Rapert (R-Conway) had shared his opinion with him on the case, but because he was concerned Rapert was telling people he had talked to the justice and that might leave an impression of impropriety. He also says, had he not recused, he believed the decision would not have been delayed:

[T]he reason I recused was that right after that conversation, maybe two weeks later, there was a reception at Conway that I went to at the [home of the] president of UCA [Tom Courtway]. I was in the reception area and Senator Rapert and his wife walked up and spoke to me. We spoke back. Nothing was said about anything and they went on about their business and we went on talking to whomever we were talking to. And then somebody else came up and they wanted to tell me how they were opposed to same-sex marriages, but they made the statement "But I know you've been talking to Senator Rapert." Senator Rapert had just walked off. Nothing then. About that time I was named as a distinguished alumnus at UCA. A big banquet. At that banquet, I had another person in the course of that evening come up and tell me their position with regard to the concept of same-sex marriage. But they, too, said "We know you've talked to Senator Rapert." Now this had never been put in the paper at that point in time. And they said "So you know how we feel about it." I decided then that maybe Rapert had told people that he had talked to me. I thought it would be inappropriate for people to be about thinking that Senator Rapert talking to me would have any effect on what I did on that case one way or the other. So the appearance of impropriety existed in the eyes of at least some and I didn't know
how many. So I decided that the best thing for me to do was to recuse from the case, because I didn't know how many people were led to believe whatever they may have been led to believe. Since I was not sure about that, I did not think I should participate in the case. I had no idea that it would be so controversial. I didn't recuse because of the conversation, but I recused because of what I feared what others thought about the conversation. That's why I recused. That recusal had a great effect, because I'm confident that had I stayed on the case we would have handed down a decision. That's the end of the discussion as far as what everyone thought about the case, but it would not have been where it is today, or wound up being. The court wound up not ruling on the case, because it was not necessary. I will say this in defense of those that would condemn Jo [Hart]. During the course of the case, Jo's husband was dying. That affected her ability to participate to the extent that she needed to participate. It brought about some delay.
For those that would find fault with a wife who was dealing with a dying husband and even as a result of that and disregard that or leave it completely out of the conversation is unfair. 
Hoffman also takes some issues with some of Max Brantley's reporting on infighting in the court and the marriage case and speculates on his sources for some information. Max is out of the country, but will probably weigh in on this at some point as he's been the Times point person for reporting on the Supreme Court, but it's long been our policy not to discuss anything to do with sources.


From the ArkTimes store

Comments (5)

Showing 1-5 of 5

Add a comment
 

Add a comment

Clicky